concurring.
I concur in the lead opinion, and write only to note how narrow our holding is, and to answer two questions it might, at first glance, appear to create.
We hold today that an officer who possesses probable cause to search a place for drugs must seek a warrant from a magistrate if he has time to do so. That principle could hardly come as a surprise. See, e.g., State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979). What makes this case a potentially difficult precedent is the fact that the trial court here did not believe the police had probable cause, prior to confirmation from inside the house, that the drugs were there. What, one might ask, is unreasonable about waiting until receiving confirmation from inside?
The answer, of course, is that seeking confirmation before entering may be a good idea, but it has nothing to do with probable cause. An officer who has (or even thinks he might have) probable cause must seek a warrant if there is time to do so. If, after having obtained a warrant, he wishes to utilize the procedure used in this case to assure that the warrant is not wasted and a confidential informant revealed, that is permissible. But the warrant must be obtained.
A final question remains: What if the police had sought a warrant and the magistrate, as the trial judge here, did not find probable cause? Would our later conclusion that there was probable cause invalidate a search without a warrant under such circumstances?
*611No. The Fourth Amendment and Article I, section 9, of the Oregon Constitution forbid only unreasonable searches. Under the circumstances of this case, had the officers sought but been unable to obtain a warrant, their subsequent actions would have been reasonable.
With these further observations, I join in the opinion of the court.1
The Chief Judge advises me that he agrees with this concurring opinion, noting only that — as I in turn agree — the answers stated here are not strictly necessary to decide the case before us.