dissenting.
The majority has stated the facts favorable to the state’s ease, but has ignored others that are unfavorable.
The record shows that when the defendant was stopped he was handcuffed and placed in a police car. He refused to talk, remaining mute. The police immediately called for a van which was equipped for crime investigation. The keys to defendant’s car were taken from the front seat area and were used to open the car trunk. The police thoroughly searched that area, opened a closed satchel and took jewelry from it but left it and clothing it contained there. They took some items and left others throughout the vehicle. The only things they took were suspicious items which could probably be used as evidence. Their “inventory,” as the trial judge discerned, was a full-scale search of the vehicle for seizure of evidence of crime without the benefit of a search warrant. Once they had dusted *908the interior of the automobile and its contents for fingerprints, after the van arrived, and had taken all of the evidence they could find, they lost interest in the car and numerous articles in it that they did not want, and had it towed away.
There is no evidence that the defendant’s vehicle was an instrumentality of any crime.
Later the stereo, speakers and the clock, which were in plain view and which were seized, were reported stolen in a burglary the same day as defendant’s arrest, resulting in the charge in this case. At the time of defendant’s arrest, the officers had no knowledge about the circumstances of the burglary for which defendant was wanted on the arrest warrant, and they, of course, had no knowledge of the instant burglary.
The prosecutor stated that the only ground upon which the state was contending the seizure was valid was that of inventory, and conceded all items taken from the trunk and the satchel were illegally seized under the inventory theory. See State v. Keller, 265 Or 622, 510 P2d 568 (1973). The close question in this case is whether the stereo, speakers and clock which were in plain view were validly taken in an inventory and then were inadvertently discovered to be stolen property at a later time.
The circuit court found that the officers did not have probable cause or reasonable suspicion to believe the automobile contained evidence of a crime, and that the seizure of the property “cannot be an inventory search. The entire circumstances indicate an actual search and seizure.” It found the officers had the right and opportunity to impound the car and upon learning of the more recent burglary or details of the *909state police charge -would have had probable cause to obtain a search warrant.
We should be reviewing this case to determine whether the circuit court erred. When the prosecutor argued the case to the circuit court he said:
“* * * [T]hey had a suspicion that the property in the vehicle was in fact the subject of theft or burglary.
“We do not contend that they had probable cause at that point to believe that the property was stolen. The State contends that what we have here is a valid inventory search. '
“Subsequently, after inventorying and taking this property into their custody for safe-keeping, it was in fact determined that most of the property in the vehicle was the subject of a burglary.
“The State’s grounds for appeal are two. The first ground is that given the transcript of the proceedings at District Court, it was in fact a valid inventory search. Our second ground is that the motion to suppress which was filed in this case and which appears in the court’s record was insufficient
The second ground thus partially stated was later abandoned. Therefore, the only question presented to the circuit court was whether this was a valid inventory search.
From the facts recited it is obvious that the finding of the circuit court is based on substantial evidence. The state contends that nevertheless the officers had the right to inventory the relatively valuable items which were in plain view and that their taking was thus valid, although seizing the other items was not.
The purpose of the evidence exclusionary rule *910is to prevent unconstitutionally unreasonable searches and seizures, and to enforce procurement of constitutionally required search warrants. The premise from which reasoning usually proceeds in determining close cases like this is that a warrantless search is prima facie illegal. State v. Elkins, 245 Or 279, 292-94, 422 P2d 250 (1966). It is the ignoring of this premise by police officers which most often causes the difficulty.
In State v. Keller, supra, and in Mozzetti v. Superior Court, 4 Cal 3d 699, 94 Cal Rptr 412, 484 P2d 84 (1971), relied upon in Keller, contraband① held as a result of inventories of automobiles has been said not to be subject to suppression if it is in plain view of police officers who aré lawfully in positions to- see it. See also State v. Childers, 18 Or App 564, 526 P2d 446, Sup Gt review denied (1974). In Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564 (1971), as was noted in State v. Keller, supra, it is said that items thus seized may be used as evidence in a criminal prosecution in certain circumstances. One of those circumstances is where the item is uncovered during a search incident to an arrest and where “a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object * * *.” 403 US at 466. It is obvious that at bar the police officers were searching for evidence against the accused, though in their testimony they occasionally sought to screen that fact by saying they “inventoried” suspi*911cions items. There was nothing inadvertent about tíie way they took suspicions items and left nonsuspicious items behind. This was not a simple inventory, it was a search and there was seizure.
In State v. Elkins, supra, the court noted that an officer may not simply take things an arrested person has regardless of the circumstances
“* * * upon the prospect that on further investigation some of it might prove to have been stolen or to be contraband. [If the rule were otherwise,] [i] t would open the door to complete temporary confiscation of all an arrested person’s property which was in his immediate possession and control at the time of his arrest for the purpose of a minute examination of it in an effort to connect him with another crime. Such a practice would be as much an exploratory seizure as one made upon an arrest for which no probable cause existed. Intolerable invasions of a person’s property rights would be invited by an ex post facto authorization of a seizure made on groundless suspicion.” 245 Or at 287-88.
In State v. Elk, 249 Or 614, 620, 439 P2d 1011 (1968), relied upon by the majority, it was said:
a* * * In determining the existence of probable cause, only those facts known to the officer prior to his alleged search may be considered, because of the rule that an unlawful search is not made lawful by the evidence of crime which it brings to light. State v. Roderick, [243 Or 105, 412 P2d 17, 243 Or 438, 414 P2d 351 (1966)]; State v. Chinn, [231 Or 259, 373 P2d 392 (1962)].”
The beer that was seized in Elk was evidence of another crime although the officer did not have knowledge that the beer had recently been stolen when it was seized. The court said:
[B]efore the newly discovered evi*912dence is seizable the officers must have a factual basis for suspicion of the newly discovered evidence.” 249 Or at 623.
It quoted with approval from State v. Elkins, supra:
“f* * * [W]e believe the balance between the public and the individual requires some protection for individual property rights by way of at least a minimal factual basis for the officer’s suspicion and resultant seizure of property unrelated to the crime for which the arrest is made. The plain wording of the constitutional mandate requires it.’ * * *” 249 Or at 623-24.
As the majority has noted, the court then went on to say:
“* * * In the instant case the officers had probable cause to believe the car had been involved in a larceny; the fruits of the larceny were positively identified as such as a result of a lawful search; the fruits of the larceny were commingled with the beer in the trunk of defendant’s car ; and the beer was of a most unusual quantity (it filled the trunk of the car to within 6 inches of the body line of the trunk). The officers knew the defendant. These facts were sufficient cause upon which to base the officer’s belief that the beer was stolen * * 249 Or at 624.
The evidence is less favorable to the officers’ search in the instant case.
The officers here were not making a simple inventory, they were making a full-scale search. In Elk a specially concurring opinion noted:
“* * * There is no inference that the officers used the right or duty to impound the ear as a subterfuge to search the car.” (Emphasis supplied.) 249 Or at 626.
In the case at bar the facts are directly opposite.
*913On the favorable side, the officers here knew the defendant was wanted on a warrant for burglary. The items which they could see in the car were known to be the kind of items often taken in burglaries and appeared to have been “lightly thrown” into the car. On the other hand, the defendant was securely in custody; the officers had no knowledge of any property taken in any burglar}^; the vehicle was in a place on a business day in Portland where it could easily have been impounded; and a warrant could have been easily obtained by one of the numerous officers present to make the kind of search the officers wanted to and did make. In Elk there was at first only one officer in a remote area, and if he had gone for a warrant, as the court noted, the evidence could have vanished.
The vehicle itself was not an instrumentality of a crime, as was the case in State v. McCoy, 249 Or 160, 437 P2d 734 (1968), and State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct review denied (1970). Cf. State v. Walden, 15 Or App 259, 515 P2d 407 (1973), Sup Ct review denied (1974). The officers should have asked themselves the questions suggested in Keith:
“(1) Do I have probable cause to believe that a search * * * will result in the finding of evidence of crime!
“(2) Do I have probable cause to believe that I must immediately search without taking the time to seek and obtain a warrant: (a) in order to protect myself (or others in the immediate vicinity), or (b) in order to avoid the loss of evidence, or (c) in order to prevent the escape of the accused, or (d) for any other reason which outweighs the need for the judicial surveillance over police activity which the search warrant provides!” 2 Or App at 142-43.
*914If police officers may make the kind of warrantless search and seizure they did in this case, and afterward the court sorts out for them some items they may use as evidence, there is a way to ignore the rule of State v. Keller, supra, which was pronounced by the Supreme Court of Oregon. If that rule is to be overruled, it should be done by the court that pronounced it.
I dissent.
In State v. Keller, 265 Or 622, 510 P2d 568 (1973), and in Mozzetti v. Superior Court, 4 Cal 3d 699, 94 Cal Rptr 412, 484 P2d 84 (1971), the “contraband” the courts were talking about was inherently illegal drugs. Here, the “contraband” was not contraband at all. Webster’s New Twentieth Century Dictionary 396 (unabridged 2d ed 1964) says “contraband” is property “prohibited or excluded” by law. The property here was of that kind a person usually legally possesses.