dissenting.
Although this is a very close case, I dissent, and would affirm the decision of the district court in refusing to suppress the evidence.
There is absolutely nothing in the record to sustain the contention that the police officer went to the apartment with any intent to search or seize. The record reveals to the contrary. The landlord contacted the police, who dispatched Officer Sorenson who was “told by the dispatcher to go to 267 South Ridge, Apartment No. 1, that they had a suspicion report there.” There is no indication that the officer wished to enter the apartment, but rather he was invited by the landlord to enter the apartment. The officer did not0 ask the consent of the landlord to enter the apartment, but rather the landlord opened the door, pointed behind the door, and requested the officer to look. Hence, I see no relevance in any of the cases cited involving situations where police desired to enter premises and sought the permission of a landlord or some other third person to enter premises. Rather, I see the circumstances of this case as similar in type to Eisentrager v. Hocker, 450 F.2d 490 (9th Cir.1971) and almost indistinguishable from Lucas v. State, 381 So.2d 140 (Miss.1980).
Implicit in the opinion of Bistline, J. and that of Donaldson, C.J. is the assertion that the officer stood in the open doorway, observed items which led him to believe that the apartment was still occupied by the defendant, but nevertheless the officer then proceeded into the apartment and conducted a search. I emphatically disagree that such was the evidence. It is clear to me that while the officer was proceeding into the apartment he noted the personal items and looked behind the door.
At the hearing on the motion to suppress, counsel for the defendant stated: “Your honor, I would stipulate to the facts of the initial entry as they are recited, or as they were testified to by Officer Earl Sor-enson at the Preliminary Hearing.” At the preliminary hearing Officer Sorenson testified as follows:
“At the time, I contacted a Joe Cleverly at 267 South Ridge, Apartment No. 1, who stated that they had a tenant living in Apartment No. 7 that was behind on the rent, and they had told him to move, and Cleverly stated that he had went down the night before to clean the apartment, suspecting that the tenant had moved out. As Cleverly and I were speaking, he was guiding me down to Apartment No. 7, and he stated, as he opened the door, he said that he had found these and was pointing behind the door.
“As I went into the apartment, I observed several personal items that indicated that someone still lived there. As I looked behind the door, I observed two plastic containers that had small green plants growing in them. I observed the plants closer and supposed them to be marijuana.
“At that time, Cleverly and I exited the room, locked it, and I advised him not to let anyone in the apartment until I returned.
“Q. What did you next do, Officer?
“A. I went directly to the Prosecutor’s Office to advise him of what I had found, and to obtain a search warrant to go back and search and seize the merchandise.”
(Emphasis added; Tr., Prelim.Hrg., p. 5).
The majority asserts: “There simply is no evidence in this case from which Johnson’s landlord could have concluded that Johnson had abandoned his apartment. On the contrary, the record reveals that numerous personal effects were found in Johnson’s home, suggesting, that, far from abandoning his home, he was still living there.” I do not believe that statement is supported by the record. The only testimo*533ny as to any items observed in the apartment was that Officer Sorenson and Detective Edwards returned to the premises with a warrant and found in the apartment some 45 marijuana plants, a set of scales, and plastic bags. The only other items mentioned in the record were a plate on which marijuana seeds were soaking and an employment application form with the name of the defendant thereon. These latter two items were concealed from the view of Sorenson when he first entered the apartment.
Upon cross-examination of Officer Soren-son during preliminary hearing, the following testimony was taken:
“Q. Did you ask Mr. Cleverly to see inside the apartment?
“A. No, I didn’t.
“Q. He voluntarily let you in?
“A. Yes.
“Q. Just you and Mr. Cleverly?
“A. Yes.
“Q. Was anybody else present?
“A. No there wasn’t.
“Q. You indicated you observed behind the door. Did you look anywhere else in the apartment?
“A. At that time, no, I didn’t.
“Q. Is that all you observed that was suspicious was two plants behind the door?
“A. There were approximately — at that time, I just approximated it as 20 plants in the two five-gallon containers.
“Q. How far did you enter into the apartment?
“A. Approximately five, six feet. I just observed behind the door.
“Q. You simply entered the room and looked behind the door?
“A. Right.
“Q. You indicated this was a two-room apartment. Did you enter the other room?
“A. No I didn’t, not at this time.
“Q. Did you open any cabinets or boxes or anything of a closed nature?
A. No I didn’t:
(Tr., Prelim. Hrg., pp. 9-10).
The opinion of Bistline, J. states:
“If the state were to have its way on this point, it would apparently argue that the following scenario is outside constitutional protection: A private citizen ransacks a home, claiming to be in search of contraband. Upon discovering the alleged contraband, the citizen calls in the police who conduct a second ransacking of the home, looking and searching everywhere and inspecting everything as did the citizen. According to the state, because the officer is only ‘viewing’ the citizen’s efforts — ‘merely’ retracing the citizen’s footsteps — such government activity is outside the purview of federal and state constitutional protections. Such an ab-berational view is not harmonious with what the framers of our federal and state constitutions intended when they put these protections into our constitutions, and we so hold.” (At 1293).
I suggest that the above-quoted language is overblown in the circumstances of this case. Cleverly was not called as a witness at either the preliminary hearing nor at the hearing on the motion to suppress. Hence, we are not aware of whether he believed the apartment had been abandoned. His statements to Officer Sorenson were hearsay and hence cannot be accepted for the truth of the facts asserted therein. Nevertheless, it is my view that the actions of Officer Sorenson were reasonable under all of the circumstances. He did not seek to enter the apartment. Rather he was escorted to the apartment by the landlord who opened the door and pointed behind it. To look behind the door he stepped into the apartment five or six feet. At some poipt in time as he “went into the apartment” he saw items which indicated that someone still lived there. We are not told by the record what type of personal items these were, and for all the record shows he may have been referring to other plants or the plastic bags. In any event, Sorenson did *534not “conduct a second ransacking of the home, looking and searching everywhere and inspecting everything.” Rather, I believe there is a strong probability, and the trial court on this record was justified in finding, that Sorenson was led to believe by Cleverly that the apartment had been abandoned, and after he had entered five or six feet into the apartment he came to the conclusion that it had not been abandoned. At that point he left and secured a warrant for a search of the premises. I cannot believe that such conduct on the part of a police officer need be condemned nor that the exclusionary rule need be applied in the instant case. In State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974), this Court upheld a denial of a motion to suppress in circumstances where indeed, in the absence of a warrant, a general search was conducted after marijuana had been observed by the police growing outside the house.
I would affirm the action of the district court in denying the motion to suppress.
BAKES, J., concurs.