specially concurring.
I agree with the majority’s result but differ with the analysis of defendant’s claim that his statements should be suppressed because he was unlawfully arrested in his house.
The police arrived at defendant’s house in five patrol vehicles after receiving a report that he had pointed a firearm at his neighbor. The officers surrounded the house with their weapons drawn, an officer telephoned defendant and ordered that he and his three sons come out of the house with their hands up and walk to the sidewalk. They complied with the order, and the officers took them into physical custody at the sidewalk.
According to the majority, the absence of a physical entry by police into the house defeats defendant’s claim that he could only be seized pursuant to an arrest warrant or under a showing of exigent circumstances justifying a seizure without a warrant. The majority relies on the statement in Payton v. New York, 445 US 573, 585, 100 S Ct 1371, 63 L Ed 2d 639 (1980), that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Because the “telephone call ordering him to come out of his house was not an entry,” 115 Or App at 110, the majority concludes that the defendant’s arrest on the sidewalk required no arrest warrant or exigent circumstances.
The constitutional proscription against unreasonable seizures is not solely a restriction on the physical entry of dwellings, as the quotation from Payton implies. Defendant contends that he was seized in his home when the police telephonically ordered him to come out and he complied. The majority evades the issue by deciding that surrounding the house was not an entry into an enclave of privacy. The proper inquiry is whether the telephonic order and defendant’s response violated his legal protection against a warrantless seizure. Payton does not answer the question.1
*112State v. Holmes, 311 Or 400, 409, 813 P2d 28 (1991) holds:
“[A] ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.” 311 Or at 409. (Footnote omitted.)
Although most seizures are accomplished by a physical apprehension, an officer’s verbal assertion of authority over a citizen coupled with submission also constitutes a seizure. California v. Hodari, _ US _, 1111 SCt 1547, 1551, 113 L Ed 2d 690 (1991), discusses identical seizure law under the Fourth Amendment:
“An arrest requires either physical force * * * or, where that is absent, submission to the assertion of authority.
“ ‘Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.’ Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (footnotes omitted).” (Emphasis in original.)
Defendant complied with a police order to leave his home. His acquiescence was not voluntary in any sense. Although we should encourage cooperation with such an order, we must also recognize that it effects a seizure of the citizen in his home when he submits to it.
The majority focuses on the location of the officers, but the citizen’s location, not that of the officers, determines whether he was arrested in his home: Several cases make the point. In Christ v. McDonald, 152 Or 494, 52 P2d 655 (1936), two police officers approached a man who was sitting in his car, ordered his passenger out, got in and ordered him to drive *113to the police station. The court affirmed the officers’ convictions for false imprisonment. It said:
“To constitute an arrest and imprisonment, it is not necessary that the party making the arrest should actually use violence or force towards the party arrested, or that he should even touch his body. If he profess to have authority to make the arrest, and he commands the person, by virtue of such pretended authority, to go with him, and the person obeys the order, and they go together in the direction pointed out by the person claiming the right to make the arrest, this is an arrest and imprisonment within the meaning of the law.” 152 Or at 501.
In State v. Rodriguez, 110 Or App 544, 823 P2d 1026, rev allowed 314 Or 175 (1992), the state argued that the defendant was not arrested in his home because an officer knocked on the door, announced that the defendant was under arrest and made no entry until he answered the door and invited the officers inside. We said:
“This argument ignores the fact that defendant was in his home, behind a closed door, when [Agent] Valladolid knocked. He was not holding himself out to public scrutiny and would not have come within a step of the threshold, but for the knock at the door. Without an arrest warrant that was valid under the Oregon Constitution, defendant’s arrest was unlawful.” 110 Or App at 550.
In State v. Vaughn, 92 Or App 73, 757 P2d 441 (1988), officers approached a house, ordered all of the occupants, including the defendant, out of the house and directed them to lie on the ground under armed guard while an officer searched a vehicle. We held:
“Although defendant was not formally arrested until after the search, he was, in effect, arrested when the officers ordered him out of the house and onto the ground. ORS 133.005(1).” 92 Or App at 77.
In United States v. Johnson, 626 F2d 753 (9th Cir 1980), aff'd 457 US 537, 102 S Ct 2579, 73 L Ed 2d 202 (1982), officers knocked on the defendant’s door and misrepresented their identity. When he opened the door, the officers displayed guns and badges, asked to speak with him and were admitted. The court concluded that the officers arrested the defendant in his home, even though they stood outside. The opinion contains a discussion of Payton that is helpful here:
*114“Johnson opened the door of his dwelling after the agents misrepresented their identities; thus, Johnson’s initial exposure to the view and the physical control of the agents was not consensual on his part. Cf. Payton, 445 U.S. at 583, 100 S.Ct. at 1378 (entries were similarly nonconsensual). Moreover, Johnson’s invitation to the agents to enter after the door was opened was hardly voluntary in light of the coercive effect of the weapons brandished by the agents.
“This case, on the other hand, differs from both of the situations addressed in Payton. The illegal search of Payton’s home and the illegal arrest of Riddick did not occur until the police had entered the suspect’s homes. 445 U.S. at 573-579, 100 S.Ct. at 1374-76. In this case, we are confronted with the situation where the suspect was arrested as he stood inside his home and the officers stood outside his home with drawn weapons. In these circumstances, it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal ‘entry’ into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the ‘reach’ of the arresting officers.
‘ ‘The Payton decision held that in the case of Obie Riddick the warrantless entiy of the Riddick’s home by police officers to arrest Riddick was not justified when his three-year-old son opened the door and they could see him sitting in bed. We doubt the Supreme Court would have reached a different result had the police stood at the doorway and immediately placed Riddick under arrest with weapons drawn.
“This case rather closely parallels that of the Riddick case discussed in Payton. Riddick did not voluntarily expose himself to warrantless arrest by the police as in a public place by allowing his three-year-old son to open the door of his home. Similarly, it cannot be said that Johnson voluntarily exposed himself to warrantless arrest by opening his door to agents who misrepresented their identities. In light of the strong language by the Court in Payton emphasizing the special protection the Constitution affords to individuals within their homes, we find that the warrantless arrest of Johnson, while he stood within his home, after having opened the door in response to false identification by the agents, constituted a violation of his Fourth Amendment rights.” 626 F2d at 757. (Emphasis supplied.)
The cases compel the conclusion that the telephonic order to defendant, coupled with his submission to it, effected *115an arrest of defendant in his home. Article I, section 9, of the Oregon Constitution required the police to have a warrant to arrest defendant in his home, unless exigent circumstances excused compliance with the warrant requirement. State v. Olson, 287 Or 157, 165, 598 P2d 670 (1979); State v. Rodriguez, supra, 110 Or App at 549.
The state has the burden to make an individualized showing of exigent circumstances. State v. Parras, 110 Or App 200, 203, 822 P2d 151 (1991).
“An exigent circumstance is a situation that requires the police to act swiftly to prevent danger to life or serious damage to property, orto forestall a suspect’s escape or the destruction of evidence.” State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991).
State v. Olson, supra, 287 Or at 165, said:
“It is true that the possession of a firearm can be an exigent circumstance where it has been demonstrated that the person to be arrested has in the immediate past performed a crime of violence committed with a firearm which ‘would gravely endanger their [the police’s] lives or the lives of others.’ ” (Brackets in original.)
Defendant contends that no exigent circumstance was shown here because he was in his house, there was no further confrontation with the neighbor, he did not threaten the officers and the officers had only a generalized concern that he might use his weapon to endanger officers. We are bound to construe the evidence in a manner consistent with the trial court’s ultimate conclusion. State v. Stevens, supra, 311 Or at 127.
Applying that standard, I would conclude that the state established probable cause and exigent circumstances that justified the warrantless arrest. Defendant acknowledges that the police had responded to complaints made against him twice in the past, including those by neighbors who reported that he had displayed or discharged firearms. Keeney reported that defendant had threatened him with a gun just moments before he called the police. The police knew of that threat and the other threats and that defendant likely still possessed firearms in his house. Grady testified that the range of defendant’s rifle made it dangerous to approach the house or to set up a police perimeter. The police were not *116required to surround the house and wait until defendant yielded his firearm. See State v. Peller, 287 Or 255, 264, 598 P2d 684 (1979); State v. Girard, 276 Or 511, 515, 555 P2d 445 (1976).
Because defendant was lawfully arrested in his home, the court correctly denied his motion to suppress his statements to the officers. I concur in the majority’s result for the reasons stated above.
Payton applied the Fourth Amendment to invalidate a warrantless forcible entry into defendant Payton’s apartment, without exigent circumstances, that led to the seizure of a shell casing discovered inside in plain view and a warrantless arrest of defendant Riddick inside his home. The officers entered Riddick’s home when his three-year-old son answered the door. The officers saw Riddick inside on a bed and gave him no opportunity to object or consent to the entry. In that context, the court’s “chief evil” statement is correct, but it does not address the question whether a *112telephonic order like the one in this case effects a seizure of the occupant in the home when he complies with it.