dissenting.
I dissent from the majority’s holding that the search of the trunk of defendant’s automobile was justified as incidental to his arrest. Further, because the so-called automobile *729exception to the warrant requirement, State v. Brown, 301 Or 268, 721 P2d 1357 (1986), is inapplicable, the evidence obtained from the search of the trunk must be suppressed.
With respect to the automobile exception to the warrant requirement, the court in Brown adopted a very narrow per se exigency exception to provide “the cleanest guidelines for police in conducting automobile searches.” 301 Or at 277. The “key” to that exception “is that the automobile need be mobile at the time it is lawfully stopped.” 301 Or at 276. (Emphasis supplied.) Judge Warren would apply the exception in this case, even though the vehicle was not stopped by the police; defendant was stopped before he entered it.
That the court meant exactly what it said in Brown and State v. Bennett, 301 Or 299, 721 P2d 1375 (1986), is made clear in State v. Kock, 302 Or 29, 32, 725 P2d 1285 (1986):
“[W]e emphasized in State v. Brown, supra, that we were not confronted with the search of a vehicle that was not mobile or that had not just been lawfully stopped by a police officer. We are now confronted with such a case. Although logically it can be argued that the rationale of the seminal case of Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925), and its progeny, including United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982), would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of Brown just where we left it in that case: Searches of automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence. In this case, we assume for the sake of argument that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist. Here, the prosecution failed to demonstrate any individualized exigent circumstances.
“As emphasized in State v. Brown, supra, and State v. Bennett, 301 Or 299, 721 P2d 1375 (1986), the police need clear guidelines for their actions. Citizens of this state also *730need to have their constitutional rights spelled out as clearly as possible. Forensic advocates can make a good case to draw the warrantless search line elsewhere and have in fact convinced the Supreme Court of the United States to extend the automobile exception to a stationary but operational vehicle in a public parking lot as being as readily mobile as one just stopped on a highway. See California v. Carney, 471 US 386, 105 S Ct 2066, 85 L Ed 2d 406 (1985). On the other hand, constitutional scholars, see State v. Brown, supra, 301 Or at 279 (Linde, J., dissenting); State v. Bennett, supra, 301 Or at 310 (Lent, J., dissenting), and other state courts interpreting their own constitutions, see State v. Opperman, 247 NW2d 673 (SD 1976); State v. Ringer, 100 Wash 2d 686, 674 P2d 1240 (1983), believe that there should be no automobile exception as such.
“We choose not to stretch the automobile exception as far as the Supreme Court of the United States has done in interpreting the Fourth Amendment, nor do we retreat from the position taken in State v. Brown, supra. However, Brown sets the outer limit for warrantless automobile searches without other exigent circumstances.” (Emphasis supplied.)
The state does not contend that there were individualized exigent circumstances here. Therefore, the search must be justified, if at all, as incident to defendant’s arrest.
Traditionally, a warrantless search incident to arrest was justified to protect the officer and to preserve evidence of crime from destruction or concealment. See State v. Owens, 302 Or 196, 729 P2d 524 (1986). In State v. Caraher, 293 Or 741, 653 P2d 942 (1982), the court limited a permissible search for evidence to that which relates to the crime for which the arrestee is arrested, and the evidence must be of a kind that could be concealed on the arrestee’s person or in the belongings in his or her immediate possession at the time of the arrest. However, the search may be carried out even after the “portable repositories” of personal effects, State v. Owens, supra, 302 Or at 202, have been removed from the arrestee’s control and are under the exclusive control of the police.
That kind of warrantless search need not be justified by probable cause independent of that required for the arrest, or by exigent circumstances. It is enough that the police have reason to believe that the effects may contain evidence of the crime for which the arrest was made. On the other hand, the *731“automobile exception” adopted in Brown does require probable cause, even though the driver has been arrested; the mobility of the automobile when stopped provides a per se exigency.
Both federal and state cases that have sustained automobile searches incident to arrest appear to have been limited to the search of the passenger compartment occupied by the arrestee immediately before the arrest. See State v. Martin, 71 Or App 1, 691 P2d 154 (1984); State v. Fesler, 68 Or App 609, 685 P2d 1014, rev den 297 Or 547 (1984). To extend the scope of such a search would exceed the scope permitted under the Fourth Amendment, New York v. Belton, 453 US 454, 101 S Ct 2860, 69 L Ed 2d 768 (1981), unless the case falls within the automobile exception. United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982). Here, defendant did not occupy the automobile immediately before or contemporaneously with his arrest, and the search was not limited to the passenger compartment. Accordingly, this case does not fit within the search incident to arrest exception to the warrant requirement. The addition of probable cause to search the trunk of the car, in the absence of exigent circumstances, does not support the warrantless search. If it did, there would have been no need for, or utility in, the automobile exception adopted by the Oregon court in Brown or the United States Supreme Court in Ross. Therefore, there had to have been exigent circumstances here in order to authorize the search without a warrant, and there were none.
The police had probable cause to seize the automobile and had time thereafter to seek a search warrant. State v. Owens, supra. They had defendant in custody and had the keys to the car. The state does not contend that there was not time to obtain a warrant. See State v. Nicholson, 89 Or App 306, 748 P2d 1028, rev den 305 Or 672 (1988).
The majority’s reliance on this court’s decision in State v. Kosta, 75 Or App 713, 708 P2d 365 (1985), aff’d on other grounds, 304 Or 549, 748 P2d 72 (1987), as authorizing the search of the trunk of defendant’s automobile as a search incident to his arrest is misplaced. In Kosta, we relied on the facts that the police had obtained a valid search warrant to search a package in transit, had conducted a search of the package and found cocaine and had then caused it to be delivered to the addressee, who turned it over to the defendant *732when he arrived to pick it up. The defendant then put it in his automobile trunk, which the police opened immediately after arresting him. We stated this rationale for that search:
“The purpose of the warrant requirement is to test the officers’ probable cause before a magistrate. That requirement had already been met here with respect to the package, for the search of which a warrant had issued. It is difficult to perceive what purpose would be served by judicially testing the officers’ probable cause to seize the package after they had obtained a warrant to search it, simply because defendant had put the package in a larger container — his car trunk. There is no doubt that, if defendant had put the package in the passenger compartment, the officers could have seized it incident to his arrest for possession of the package containing cocaine, a felony committed in their presence. Not only did the package relate to the reason for his arrest, it was the reason for his arrest, and its seizure was limited in time, scope and intensity. State v. Caraher [supra]; State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984).” 75 Or App at 720. (Emphasis in original.)
On review, the Supreme Court did not accept our rationale. Instead, it upheld the search under the automobile exception that it had adopted in Brown after our decision was handed down. State v. Kosta, supra, does not support the search here as incident to defendant’s arrest, and I know of no other Oregon cases that do.
Accordingly, I dissent from the majority’s decision that the automobile search was valid.
Joseph, Chief Judge, and Newman, J., concur in this opinion.