dissenting.
ORS 133.290 states:
“The officer may break open any outer or inner door or window of a dwelling house, or otherwise, to execute the warrant if, after notice of his authority and purpose, he is refused admittance.”
The court in n 1 points out that Agent Richardson did not comply with it because he “failed to state the purpose of his entry.” I do not agree that because defendants voluntarily admitted Agent Holm solely as the result of subterfuge and by implication extended to him personally a right to re-enter with the purchase money, there was also an implied consent to Richardson, in the absence of Holm, to enter in a manner prohibited by the statute. One cannot imply a consent by the lawful occupiers of a dwelling running to a person or to a class of persons whose very existence is unknown to the persons in possession. The majority does not conclude that exigent circumstances were present here. I can find none within the rule of State v. Steffes, 2 Or App 163, 465 P2d 905, Sup Ct review denied (1970), and State v. Mitchell, 6 Or App 378, 487 P2d 1156 (1971) Sup Ct review denied (1972). In State v. Cortman, 251 Or 566, 446 P2d 681 (1968), cert denied 394 US 951 (1969), the Supreme Court said:
“Where, as here, the court found that the officers made the required announcement, we believe that the purposes of the statute were served and that it would be unrealistic to require the officers to delay their entry for a fixed period of time after making their presence and purpose known. * * *” (Emphasis supplied.) 251 Or at 570.
Since it is conceded that Richardson did not make his purpose known as the statute requires, I can find no basis consistent with the statutory language to *40uphold the entry here. Nor do I understand that State v. Cortman, supra, absent exigent circumstances, approves entry in the absence of “the required announcement.” Neither in my view does the fact that Agent Holm left the door so that “there was light between the frame and the door about the width of an inch” change the situation. Nothing was visible through that tiny aperture. No crime was being committed in the officers’ presence.
Since in my view the exigent circumstances necessary to justify entrance by the police without complying with ORS 133.290 were not here present, the motions to suppress evidence seized pursuant to the illegal search should have been allowed.
I therefore respectfully dissent.