specially concurring.
I concur without reservation in that portion of the majority opinion approving the rule announced in State v. Mickelson, 18 Or App 647, 526 P2d 583 (1974), as that rule is interpreted in the majority opinion in this case.
*330Although I believe the question to be very close on whether there was probable cause to believe that defendant was commmitting a crime "encompassing the possession of drugs” and, therefore, subject to arrest ("seizure”) without a warrant, the majority has persuaded me this is so; consequently, I concur in that portion of the majority’s opinion. Since there was probable cause to believe defendant was committing a crime, it follows that he could be seized without a warrant.1 The majority finds that defendant was arrested under the statutory definition, ORS 133.005(1), when the search took place in the kitchen, and his money and car keys were removed from his pockets. With that I agree, and therefore, concur.
Because there was an arrest there was a right to search defendant without a warrant. Chimel v. California, 395 US 752 (1969), and State v. Chinn, 231 Or 259, 373 P2d 392 (1962), hold, respectively, that such a search is not prohibited by the United States and Oregon Constitutions because it is necessary for the protection of the officer(s) and to avoid loss of evidence.2 For the purposes of this case and this decision I am still in tune with the majority and accordingly concur.
At this point the majority assumes, "without deciding,” that the warrantless seizure and warrantless search of the car and its trunk were valid under Carroll v. United States, 267 US 132 (1925), and Chambers v. Maroney, 399 US 42 (1970). I recognize that the majority does so because of its willingness to hold invalid the warrantless search of the briefcase, which is sufficient to dispose of this case. Since I *331believe we should not exercise our discretionary review role merely to decide the case at hand, I am not content here with that case disposition device. See my concurring opinion in State v. Classen, 285 Or 221, 590 P2d 1198 (1979). I believe that the discretionary review function and an orderly approach demand some examination of whether the seizure and search of the car were permissible.
Certain fundamental propositions3 should be kept in mind. Warrantless seizures and searches are perse unreasonable and where there is a motion to suppress evidence obtained thereby, "the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.” ORS 133.693(4).4
I believe the warrantless seizure of the car was permissible. The officers had reasonable cause to believe the defendant came to the house to deliver amphetamines. An officer saw the defendant drive up and park. There is nothing in the record to indicate he divested his person of anything between car and house. Since no amphetamines were found in the search of his person, it was reasonable to infer they would be in the car. This leads me to the conclusion that the officers could legitimately detain the car (at least at the scene) without a warrant.
To justify the warrantless search of the car, the state is required to bring the case within one of the recognized exceptions to the need for a warrant. The search of defendant’s car in this case is certainly *332outside the Chimel and Chinn exceptions, for defendant was inside the house and under arrest; consequently, there was no danger that he could have reached the car to obtain a weapon or to destroy evidence. Warrantless search, accordingly, must depend upon another exception. I assume the "movable vehicle” exception to be the only arguable one. This exception requires that the object searched be a vehicle (obviously satisfied here) and that there be probable cause to search the vehicle (satisfied by the reasonable belief that it contained contraband). There is another key requirement; namely, that the vehicle be movable, more accurately, that it be mobile as of the time it was seized. This requirement is not satisfied.
The literal meaning of "movable” or "mobile” is inapplicable. Certainly, a motor vehicle is capable of being moved by its very nature. The true question is whether the record shows a reasonable likelihood that the vehicle would be moved if not seized.5
"* * * In this case, it is, of course, true that even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense 'mobile.’ A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility. "(Emphasis added.) Coolidge v. New Hampshire, 403 US 443, 461, n. 18 (1971).
Here the driver (defendant) was under arrest, and the police had the car keys. There were sufficient police present to guard against the remote possibility that a confederate with another set of keys would take the car.6
*333It is impossible for me to find from these circumstances a reasonable likelihood that this vehicle would (or even could) be moved if not searched. I would not, therefore, uphold the warrantless search of this car. That would close the matter.
The majority, having assumed the validity of the warrantless search of the car, notes that if the police had that power, defendant does not contest the seizure of the briefcase but only its search. The majority finds this search prohibited by United States v. Chadwick, 433 US 1 (1977), and I agree. In light of the majority’s speculation concerning the future of Chadwick, I believe some further discussion of the search of the briefcase is desirable.
We have another per se unreasonable seizure and search in violation of the state and federal constitutions (United States Constitution, Am IV; Oregon Constitution, Art I, § 9) unless the state establishes by the preponderance of the evidence (or perhaps by some greater quantum: State v. Douglas, 260 Or 60,488 P2d 1366 (1971); cf. n. 5, supra)that the seizure and search were valid under some exception to the need for a warrant.
Can there be a "mobile briefcase” exception to the need for a warrant? Consider before continuing some further language, not from Chadwick but from *334Coolidge. Immediately following the language concerning "mobility” I have quoted supra, from n. 18 in Coolidge v. New Hampshire, 403 US at 461 appears the following language in the same footnote:
"First, a good number of the containers that the police might discover on a person’s property and want to search are equally movable, e.g., trunks, suitcases, boxes, briefcases, and bags. How are such objects to be distinguished from an unoccupied automobile— not then being used for any illegal purpose — sitting on the owner’s property? It is true that the automobile has wheels and its own locomotive power. But given the virtually universal availability of automobiles in our society there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for that purpose. Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon from it or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel v. California, 395 U.S. 752. * * * But if Carroll v. United States, 267 U.S. 132, permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extention of Carroll. * * *” (Emphasis added.)
There is no question raised as to the fact that the briefcase is within the terms of the constitutional protection and the fact that defendant has standing.
As noted before, I interpret Coolidge to hold that there must be a reasonable likelihood that the object to be searched could or would be moved if not seized.7 In *335this sense, there was no constitutional mobility. The briefcase was clutched in the hands of a police officer. It was not necessary to open the briefcase to prevent its removal from police control. If the seizure of the briefcase was valid, the officers could keep it in custody and procure a warrant to search it (assuming probable cause to believe it contained evidence of crime).
I reach the result that the search of the briefcase was invalid under what was said in Coolidge, and I agree it was invalid under what was held in Chadwick. This container was precisely the same kind as the footlocker in Chadwick. The expectation of privacy for the contents of a briefcase8 is at least as great as for a footlocker’s contents, and this briefcase when searched was "completely and totally within the officers’ control.”
I would, also, hold the warrantless search of the briefcase to be impermissible under Art I, § 9, Or Const, and thus be entirely free from concern as to what the United States Supreme Court might do in the future about limiting Chadwick. Compare, the concurring opinion of Justice Linde in State v. Greene, 285 Or 337, 591 P2d 1362 (1979). Compare, also, the action of the South Dakota Supreme Court in State v. Opperman, 247 NW2d 673 (1976), holding on remand a search to be invalid under the state constitution when *336held valid under the federal constitution in South Dakota v. Opperman, 428 US 364 (1976).
LINDE, J., joins in this separate opinion.
"A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed: * * * [a]ny * * * offense in the officer’s presence.” ORS 133.310(l)(b).
"An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state * * ORS 161.505.
Compare, the scope of warrantless intrusion permitted under United States u. Robinson, 414 US 218 (1973) and State v. Florance, 270 Or 169, 527 P2d 1202 (1974).
Even more fundamental propositions are not addressed because of the implicit assumptions that the places searched and the things seized are constitutionally protected and that defendant has "standing,” but it is well to remember that analysis must always start with such matters.
In State v. Warner, 284 Or 147, 585 P2d 681 (1978), we noted our uneasiness with the quantum of proof required by State v. Douglas, 260 Or 60, 68, 488 P2d 1366, 1370 (1971), to establish the "consent” exception to the need for a warrant. It would appear that the enactment of ORS 133.693(4) since the time of the search in Douglas fixes the quantum as a preponderance of the evidence unless Douglas is read to require impliedly a greater quantum on state constitutional grounds. See, State v. Warner, supra n. 3, 284 Or at 160, 161, 585 P2d at 688.
Mr. Justice Brennan, dissenting in Cady v. Dombrowski, 413 US 433, 451, 93 S Ct 2523,37 L Ed 2d 706 (1973), finds "reasonable likelihood” to be the rule of Coolidge v. New Hampshire, 403 US 443 (1971).
In Coolidge v. New Hampshire, supra n. 5, the court found, as I have here, that there was probable cause, but there the court found no exigent circumstances to justify the police in proceeding without a warrant. Compare that case with this:
*333"The word 'automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where 'it is not practicable to secure a warrant,’ Carroll, supra, at 153, and the 'automobile exception,’ despite its label, is simply irrelevant.” 403 US at 461-62. (Footnote omitted.)
"The extent to which an object that the police wish to search is movable may well be relevant in determining whether sufficient 'exigency7 is present to justify an immediate, warrantless search. However, just as the word 'automobile’ is not 'a talisman in whose presence the Fourth Amendment fades away,’ the inherent mobility of the object to be searched cannot, without more, justify a failure to secure a warrant. The question in each case is not simply whether the item searched is movable; rather, the question is whether, in light of the 'realities of the situation,’ there was a *335reasonable likelihood that the item would be moved before a warrant could be obtained. Where the possibility of movement is only remote or speculative, the police are simply not confronted with the kind of urgency which would excuse them from the warrant requirement. See Coolidge, supra at 461, n. 18, 91 S.Ct. 2022.” (Original emphasis; footnotes omitted). United States v. Martin, 562 F2d 673, 677-78 (DC Cir 1977), in which evidence obtained by warrantless search of a suitcase was ordered suppressed. Omitted footnote 12 is instructive but lengthy.
Intrusion of a container commonly used to carry private papers (such as lawyers’ briefs) may well involve First/Fourteenth Amendment issues in addition to Fourth/Fourteenth Amendment law.