concurring.
I concur in the reasoning and the result, but would note that it appears to me to be contrary to the result reached by the majority in State v. Hickmann, 21 Or App 303, 534 P2d 1153 (1975). In Hickman, which involved the search of a teepee, both in the trial court and on appeal, the state relied on probable cause to search plus exigent circumstances, excusing the need for a warrant. There, despite the fact that the state not only did not argue consent to search at trial, but did not argue it on appeal, when we found that the search could not be justified absent consent we remanded it for a hearing and determination on the issue of consent.
Here, in the trial court, the state attempted to justify a search as an inventory search, but on appeal argues that it can be justified on other grounds. We state:
“On this appeal the state in its brief urges that there are other grounds not raised or discussed in the trial court upon which the search can be upheld. We decline to consider them. To do so would be unfair both to the defendant and to the trial court. * # #19