dissenting.
As in State v. Chinn, 231 Or 259, 373 P2d 402 (1962) again this court, finding a quite obviously guilty defendant, fashions the law of search and seizure to fit his conviction.
Even making the most generous concession to the prosecution in appraising the evidence of probable cause for the search, it is patent from the record that the search in this ease was not made as an incident to an arrest for a violation of the game laws. It was necessary for the state to relate the search to the *153game violation 'because there was no other basis for arguing that the search was incident to an arrest; it was not incident to the traffic violation nor to the crime for which defendant was ultimately convicted.
From the testimony in this case one gets the distinct impression that the police officers suspected that defendant and his cohorts had been involved in a more serious crime and that the search was made to find evidence of that crime. Chase knew Hart. Hart had a previous record. It was not unlikely that Chase’s call to the other officers for assistance was prompted by his knowledge of Hart’s previous record. Normally there would be no need to call for assistance if the only crime involved was a game violation.
Before looking at Chase’s testimony, it should be noted that probable cause must be made out in the present case mainly from the fact that the defendant and his companion were near a hunting area; that a gun with a telescopic sight was in the car, and that the arresting officer knew that Hart had a previous record. It must be admitted that from these facts an inference can be drawn that defendant had violated the game laws. But the law of search is not satisfied simply by finding that an inference can be drawn. The state has no right to search unless the inference is strong enough to move from the level of suspicion to the level of probable cause. This is fundamentally a question of relevancy. The greater the number of possible inferences flowing from the facts, the less relevant is any one conclusion reached upon the basis of such facts. In the present ease the probability that defendant used the gun to hunt illegally is weakened by the fact that the car was travelling away from a metropolitan area and not away from a hunting area. The only facts supporting the inference that de*154fendants may have violated the game laws were (1) that there was a hunting area nearby and (2) that the gun was equipped with a telescopic sight, and possibly (3) that defendant had a previous record which fact was known to the arresting officer. This is a weak structure of facts upon which to rest an inference that a game violation had occurred. At most, the circumstances are sufficient only to create suspicion.
The cases from other jurisdictions are not very helpful. What appears as mere suspicion to one court is probable cause to another. Generally the difference in point of view reflects the difference in the court’s understanding of the meaning of the Fourth Amendment and its counterpart in state constitutions. If the constitutional proscription against search and seizure is regarded simply as the pronouncement of a tort principle protecting the citizen’s right of privacy, the right to search can be extended to the broadest limits. The problem then 'becomes one of weighing the citizen’s interest in being free from annoyance against the state’s interest in the efficient administration of the criminal law. So viewed, the only limitation that needs to be placed upon the right to search is at the point where the resulting annoyance is more than the average person should be expected to bear as a part of the price to be paid in helping to enforce the criminal law.
But the Fourth Amendment is not just a shoddy piece of tort law. The prohibition against unreasonable search and seizure was incorporated into the constitution to fend against a danger which went to the very core of the structure of government; the danger of an ambitious executive using police action to suppress his opposition. The chaos in the law of search and seizure stems in part from the failure of the courts to see this larger purpose in the Fourth *155Amendment. However, sometimes it is seen clearly, as in Mr. Justice Murphy’s dissent in Harris v. United States, 331 US 145, 194, 67 S Ct 1098, 91 L Ed 1399 (1947):
“* * * The principle established by the Court today can be used as easily by some future government determined to suppress political opposition under the guise of sedition as it can be used by a government determined to undo forgers and defrauders # * *. History is not without examples of the outlawry of certain political, religious and economic beliefs and the relentless prosecution of those who dare to entertain such beliefs. And history has a way of repeating itself. It therefore takes no stretch of the imagination to picture law enforcement officers arresting those accused of believing, writing or speaking that which is proscribed, accompanied by a thorough ransacking of their homes as an ‘incident’ to an arrest in an effort to uncover ‘anything’ of a seditious nature. Under the Court’s decision, the Fourth Amendment no longer stands as a bar to such tyranny and oppression.”
As is pointed out in a note, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 700 (1961):
“It is clear that the danger to which Mr. Justice Murphy referred is not simply that of over-bearing police in an otherwise democratic society. Rather, he warns that the availability of broad police powers will encourage, or at least provide no hedge against, the deterioration of the political order itself. Mr. Justice Frankfurter spoke in much the same vein in his dissent in Harris: ‘How can there be freedom of thought or freedom of speech or freedom of religion, if the police can, without warrant, search your house and mine from garret to cellar merely because they are executing a warrant *156of arrest? * * * Yesterday the justifying document was an illicit ration book, tomorrow it may be some suspect piece of literature.’ (331 US at 163).”①
"When the law of search and seizure is seen in this larger matrix the scope of permissible search is severely limited. The line between suspicion and probable cause is then drawn with an eye to the purpose of the Fourth Amendment, and not simply to the exigencies of police administration in the particular case.
The law prohibits a purely exploratory search. That is what we have in the present case.
Cases in other jurisdictions have held that probable cause was lacking where the facts more clearly pointed to the commission of a crime. State v. Johnson, 210 Wis 334, 246 NW 446 (1933) is such a ease. There the defendant, a game warden, was charged with criminal *157assault and battery upon one, Jossart, alleged to have been committed in connection with a search of Jossart’s automobile. Defendant contended that he had probable cause to believe that Jossart and his companions were in possession of the carcass of a deer in violation of the law. The following facts were stipulated. The search occurred on an old logging road in unsettled territory, except for shacks of hunters and fishermen. Jossart and his companions were returning from the vicinity of a hunting camp. They were clad in hunting clothes. Defendant saw on the back seat of the car a rifle and a sack. He also noticed a “Christmas” tree which was off the floor, level with the seat “as though there was something under it.” This made defendant “suspicious as to what might be under the tree.” (210 Wis at 335, 246 NW at 446). Jossart had been previously convicted of the violation of the game laws. It was held that defendant did not have probable cause to believe that the complaining witnesses were violating the game laws. Chief Justice Eosenberry, speaking for the court, said:
“* * * Here the defendant in his testimony properly characterized the legal effect of such knowledge as he had. It aroused a suspicion. Facts which warrant nothing but a suspicion are not sufficient to justify an officer in believing that an offense is probably being committed. No one had seen Jossart and his companions hunting nor had any reason to suppose that they were engaged in any violation of the law except that they were coming out of an unsettled section of the country with a Christmas tree in the back of the car which might conceal the presence of contraband game and that a rifle was being carried in the car.
“It is considered that the trial court correctly held that the defendant did not have probable cause to believe the occupants of the automobile were in *158the act of committing an offense which would war-want him in making a search of the ear against the protestations of its occupants.” 246 NW at 446-447.
Other illustrative cases are set out in the margin.②
Even if we were to accept the view that the facts in the case at bar were sufficient to create in an arresting officer a belief that the game laws had been violated, the tenor of officer Chase’s testimony strongly suggests that the search was not made as an incident to a game violation. Chase recognized Hart and defendant Krogness. Apparently Chase knew that they had a previous record. He called on his car radio for assistance. Two or three cars came to his assistance. Finally at the scene of the arrest there were, in addition to Chase, detective Moore, detective Heller and his partner, officer McCole, a juvenile officer in the area, officer Langlois, officer Rose, and two patrolmen. All of these converged upon the scene of an arrest for a traffic violation or a possible game violation.
To get the full sense of the shallowness of the state’s position in attempting to tie the search to the *159game violation, it is necessary to read the entire testimony of officer Chase. I shall not set it ont in full here bnt a few passages from the transcript will illustrate the strained effort to distill probable cause out of a fact situation very nearly dry of inference-making material. First as to the arrest, officer Chase gives the following explanation:
“Q Now, on what charge had you taken him [Hart] into custody?
“A For arresting him on a traffic violation.
“Q You’re not allowed to take him into custody on a traffic violation in the state of Washington, are you?
“A Oh, yes, sir, very definitely.
“Q Well, now, let me read you the statute of the State of Washington and ask — well, I’ll put it this way: Are you not acquainted with the fact that in the State of Washington a police officer may not take a person into custody for a traffic violation unless that person refuses or fails to sign an arrest citation agreeing to return at the time fixed in the citation?
“A As I am acquainted with the traffic laws of the State of Washington, the only thing that — to my knowledge this is a courtesy given to any citizen in the state; out of the state makes quite a difference. This is a courtesy that we give to the residents by not booking them in jail; we have them sign an arrest citation, a promissory note to appear. This is not a prerequisite. We may any time take a person to the county jail, write the ticket and have him post his bail there.
am # # * #
“Q * * * Now, sir, directing your attention to this [referring to the Washington statute]: ‘Upon the arrested person’s failing or refusing to sign such written promise, he may be taken into custody of such arresting officer and so remain or *160be placed in confinement.’ Yonr view was to the contrary, is that so?
“A My view is that this is a courtesy extended to the people. My view does not say that has — or the book does not say that this has to be done, does it?
ÍÉ* * # £ *
“A The man has committed a misdemeanor in my presence, a traffic misdemeanor; he can be booked in the King County jail.
“Q Did he fail or refuse to sign the written promise?
“A No sir. He was driving a Montana licensed ear; he was an out-of-state person so that’s why he was ‘booked in the King County jail, to post bail.
ÍÍ* # # tt #
“Q Is it customary when you arrest a traffic violator for going 36 miles per hour in a 20-mile zone to call for assistance at eleven o’clock in the morning?
“A In the event the defendant would have been the same defendant, yes.
“Q Well, did you know who was driving that automobile?
“A I saw him when he stepped out of the car.
“Q Well, but—
“A That’s when I requested additional help.
“Q You didn’t call for additional help previous to that time?
“A No.
“Q You are sure of that?
“A I effected the arrest, then called a — effected the stop; I advised radio that I was stopping a car at a certain location.
“Q And within two or three minutes there were three cars there in addition to your car, is that not true?
“A Yes, sir.
*161“Q And was that because it was Neil Hart?
“A That would have had some bearing on it maybe.
“Q Well, then, what was the purpose of the other three cars, or is it customary in King County to ask for assistance if you stop someone for a traffic violation at 36 miles per hour in a 20-mile zone?
“A If the defendant had been the same defendant, the request would have been made — the defendant Hart.
Officer Chase’s explanation for the arrest of Krogness and Russell is interesting:
“Q Did you take Krogness and Russell out of that car?
“A I told Krogness and Russell to sit in two separate patrol cars, yes.
“Q Then you placed them in custody at that point?
“A Yes.
“Q For what crime?
“A Aiding and abetting.
“Q Aiding and abetting what?
“A A traffic violation.
“Q The aiding and abetting of speeding?
“A Yes.
“Q And how did they aid and abet speeding?
“A Well, maybe they could have told the driver to be a little more cautious.
“Q They could have — maybe they could have told the driver to be a little more cautious, is that what you said?
“A That’s what I said.
“Q And that was the basis of your charge to them upon which you took them into custody, that they might have told the driver to be a little more *162cautious and you overheard the fact that they did not do so, is that correct? •
“A No, I didn’t overhear anything.
“Q How did you ¡mown they didn’t do that?
‘■‘A. I did not know whether they had or had not.
“Q You didn’t know it?
“A No.
“Q But you were arresting them for it anyhow, is that correct?
“A They were arrested, yes. ÍÍ* # # # *
“Q {By Mr. Lonergan) Now, the vehicle was impounded, you stated. Was that on arrest for the traffic violation of going 36 miles an hour and aiding and abetting by not telling him to slow down and be cautious ?
“A The vehicle was impounded on the traffic violation. This was the case number that the vehicle was given by the towing company as well as our office. * * * #
“Q (By Mr. Bernstein) Is this the first time that you ever effected an arrest for aiding and abetting by taking into custody two passengers in an automobile or any number of passengers other than a driver for aiding and abetting in a traffic violation?
“A No, sir.
“Q This is a customary procedure of the King County Sheriff’s Office?
“A This has been done on frequent occasions depending on how — the seriousness of the offenses.
“Q Well, I realize that driving past a school is a serious offense — I’m not belittling that at all— but is this the first time that you ever took two other individuals in custody for having been pas*163sengers in a car that travelled 36 miles an hour in a 20-mile zone?
“A Well, to — this is the first time I have ever arrested for aiding and abetting any defendants for going 36 miles an hour in a school zone.
“Q Is it the first time?
“A Yes, for going 36 miles an hour in a 20-mile school zone.
“Q And have you on previous occasions arrested for going 37 or 40 miles an hour, taking in— have you ever arrested — I’ll withdraw the previous question. Have you ever arrested anyone previous to this incident for aiding and abetting a driver exceeding the speed limit in excess of that posted by law?
“A Speed limit in the state of Washington in most places on the highway is 60 miles an hour.
“Q The lawful speed limit, whatever the area may be?
“A Yes, I have arrested other defendants for aiding and abetting.
“Q For a traffic violation?
“A For traffic violations.
“Q For exceeding the speed limit?
“A For exceeding the speed limit.
“Q And have you taken them into custody—
“A And booked them in the King County jail.
“Q And have you searched their person and their car?
“ME. COUESON: I’m going to object to that, your Honor.
“THE COUET: The objection will be sustained.
Chase’s basis for making the search was explained as follows:
“Q * * * Now, if I might take a look at this exhibit P. I see it has on its breach, ‘Carl G-ustavus’
*164—If I may remove the matter that is blocking my view — ‘gevarsalctori.’ Do you refer to this as a hunting rifle? Is this not, in fact, a military rifle of the Swedish armed forces?
“A I believe the rifle has been modified, sir.
“Q Was it not — does it not bear upon it the fact that it was produced as a weapon by the State Arsenal of Sweden as a military weapon produced in 1906 by the military arsenal, is that not correct?
“A You may be correct, counsel, but I didn’t observe that on the rifle.
“Q Now, Mr. Chase, when you searched through this car, what did you search for?
“A A game violation.
“Q Oh, no, Mr. Chase, you searched for something?
“A A bird.
“Q You searched for a bird?
“A A part of a deer.
“Q A part of a deer. Did you find a bird or a part of a deer?
“A No, we did not, sir.
“Q What sort of bird did you think was shot with this weapon that’s produced by the Military Arsenal of the Swedish — of Sweden? * * «= #
“A I didn’t have any idea what kind of a bird the defendant would like to shoot.
“Q You didn’t have any idea what possible bird it could be, is that right?
“A Oh, I imagine there would be some bird that you could shoot with the gun.
((% # * # #
“Q Now, you went into the suitcase in the trunk of the car?
“A Yes. The suitcase was opened.
*165“Q That looking for a game bird or a piece of deer?
“A Some game violation.
The foregoing testimony taken as a whole demonstrates to me that the police made an exploratory search and when called upon to justify it attempted to relate it to a violation which had not occurred to them at the time of the arrest.
I believe that the majority opinion is in error in another respect. It states:
“In the case at bar, we must decide whether the trial court had before it any substantial evidence to support a finding that there was probable cause to believe contraband was present in the automobile. The factual question before the trial court was whether the police officer on the facts he described, had a good-faith belief, as well as reasonable grounds to believe, that the three young men he had stopped were, in fact, returning from a poaching expedition. If there was evidence from which the trial court could have drawn the inference that was drawn, there is no need for us to speculate whether, upon the same record, this court necessarily would draw the same inferences. Where findings of fact have substantial support in the evidence, this court ordinarily does not retry facts which may underlie trial court rulings on the admissibility of evidence.”
According to the majority’s analysis probable cause is a question of fact which is to be resolved by the trial judge as a trier of fact. This is erroneous. If there is no conflict in the evidence as to what occurred in making the search, the question of the existence of probable cause is for the court. If the evidence is in conflict there is, then, a mixed question of law and fact. The correct analysis is found in 4 WTharton’s Criminal *166Law and Procedure (Anderson ed) § 1545, p. 167 (1957):
“Probable cause is a mixed question of law and fact. Whether the circumstances alleged to show it actually existed is a matter of fact, but whether, supposing them to be true, they amount to probable cause is a question of law.”
In the present case the facts are not in dispute; the only question is whether the admitted facts add up to probable cause. That is purely a legal question which we have the responsibility of answering irrespective of the trial judge’s view of the matter. It is for us to set the standard for a valid search. That standard must be put at a level which will meet the constitutional guarantee against unreasonable search.
As I have already indicated, the majority and I do not agree where that standard should be set. But wherever it is set we and not the trial judge have the ultimate responsibility for setting it.
The evidence should have been suppressed. Defendants are entitled to a new trial.
The comment continues:
“* * * Davis v. United States evoked similar warnings: ‘It is not only under Nazi rule that police excesses are inimical to freedom .... History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’ [328 US 582, 597 (1946) (Frankfurter, J., dissenting)]. The latter passage might seem to suggest that the danger to be avoided is the slow erosion of all traditional liberties. If this were the crux of the problem the fourth amendment would not be properly viewed as a special ‘bar to such tyranny and oppression.’ A careful reading of the passages indicates, however, a theory of unique relation between broad powers of search and seizure and the rise of a totalitarian state. Totalitarian regimes may be characterized, in part, by the types of offenses with which they are most concerned: sedition, heresy, unpopular thought, disapproved literature. These are all ‘victimless crimes,’ or at least crimes of which the government is the only victim. Search and seizure procedures are uniquely suited — perhaps indispensible — to the detection of just such crimes. It is reasonable to suppose, therefore, that strict controls on the right of search and seizure would provide one hedge against the kind of oppressive law which only such procedures could make enforceable.”
The People v. DeLuca, 343 Ill 269, 175 NE 370 (1931) (officers in search of game violator boarded, passenger train which the defendant was riding. The officers saw some feathers sticking out of defendant’s pocket, searched his person and found four hen pheasants in his coat pockets. Held that the evidence was obtained by unlawful search); State v. Gibbs, 252 Wis 227, 31 NW2d 143 (1948) (prosecution for possession of shotgun shells loaded with ball or heavy shot. Defendant was wearing tight-fitting bibless overalls and game warden could see outline of shotgun shells in defendant’s pockets. Defendant brought out shells from his right pocket, but refused to produce shells from his left pocket. Arrest and search held illegal.)
Cf., State v. Evans, 143 Or 603, 22 P2d 496 (1933); Hughes v. State, 195 Tenn 290, 259 SW2d 527 (1953); Phillips v. State, 159 Tex Cr 286, 263 SW2d 159 (1953); State v. Leadbetter, 210 Wis 327, 246 NW 443 (1933).