specially concurring.
I concur only in the result and accept virtually none of the majority’s reasoning.
The unlawful police activity requiring suppression here was their unnecessary massive intrusion into defendant’s home, not their activity after the unlawful entry. Accordingly, although I agree that we must reverse, I do not agree that the alleged entry is irrelevant and disagree with the majority’s *656holding that, if the officers were lawfully inside defendant’s home, they were not authorized as a matter of “practical necessity” to look for other persons after they found Killmon, who declined to talk to them, after defendant had told them no one else was there. On that point, I agree with the dissent of Rossman, J., if that question is properly before us.1
Reversal is necessary, because the officers had no authority to enter defendant’s home in the first place. The state contends that, not only is that the principal issue, it is the only one properly before us. As framed by the state, the question is whether police officers possessing a valid arrest warrant have the absolute right to enter a suspect’s home when there is no necessity for doing so in order to effect the arrest. Here, the officers justified their entry based on the arrest warrant, not necessity, and the state contends that the officers were correct. The majority ignores that problem, and the dissent by Rossman, J., accepts the state’s contention. Because I do not think that such an important problem should be ignored, and because I think the dissent erroneously resolves it, I dissent.
By avoiding the issue, the majority is able to narrow the scope of the officers’ activities after they entered. If, as the state contends, and as the officers said they believed, the arrest warrant authorized entry into defendant’s home “to complete the arrest,” regardless of any necessity to do so, and the officers observed Killmon descending the stairs after defendant told them no one else was in the house, they had the right, for their own safety, to see if anyone else was upstairs. See State v. Miller, 45 Or App 407, 608 P2d 595, rev den 289 Or 275 (1980); State v. Garza, 32 Or App 643, 574 P2d 1151, rev den 283 Or 1 (1978).
Rather than accept the state’s position, with the resulting broader scope of permissible police activity once inside, the majority would assume that the entry, if lawful, was justified out of concern for the safety of the child. It is safer to *657assume that justification than it is to decide it, because it ignores the findings of the trial court that the officers entered because they believed that the arrest warrant authorized entry, that as they stepped in the front door they called into the house the two officers who were covering the rear of the house, that any concern for the child was an afterthought, and that it was only after entering that they became concerned about there being a responsible adult with whom the child could be left. We are bound by those findings, Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968), and they do not support the conclusion that the officers entered defendant’s home out of concern for the child. That concern came later, as the trial court found.2 Presumably, that is why the state urges that the arrest warrant per se constituted sufficient authority to enter.
By ignoring the real problem, the court’s decision permits judges to evaluate police conduct after they have entered a citizen’s home unlawfully. Police 'may not create, by unlawful conduct, exigent circumstances or a situation giving rise to the practical necessity to engage in further activity. See State v. Hansen, 295 Or 78, 664 P2d 1095 (1983). The majority’s analysis is both dangerous and erroneous. If the police were lawfully in defendant’s home, what they did in response to their then concern for the welfare of Danny was in response to what reasonably appeared to them, after entering, as practical necessity, and was reasonable.
If I were to reach that question, I would agree with the dissenting opinion of Rossman, J. Killmon refused to say whether he was Danny’s father, and defendant had already lied to the officers by denying that anyone other than himself and the boy were in the house. Given those facts, if the officers entered out of concern for the boy, they had the choice of taking defendant away, leaving Danny with a man who refused to acknowledge responsibility for him,3 or of looking *658for another person who would accept that responsibility. Under the majority’s assumed justification for entry, the police acted reasonably, and the evidence observed in plain view should not be suppressed.
However, the unlawful entry does require suppression. Although the dissenters accept the trial court’s findings, most of which are quoted in the majority opinion, they accept the state’s argument that the officers were justified in entering in order to complete the arrest, apparently ignoring those findings. Some of them bear repeating:
“* * * The officers asked him if he was Jeffrey Cota, and he acknowledged he was. Cota was standing at the door, but inside the house, with the front door of the house open. The officers were standing on the front porch and the screen door was open. An officer handed Cota a copy of the warrant of arrest and told him he was under arrest. Cota did not resist by word or act and did not attempt to retreat from the doorway. Cota did not invite the officers into the house. Nor did he object to, or resist, their entry. They simply walked in without requesting his consent. Cota submitted to the authority of the officers.
“The officers entered the house, rather than simply handcuffing Cota at the door and leading him away, because they thought they were authorized to do so by reason of the warrant. They also called into the house the two officers who were covering the rear of the house.”
Given those facts, it is fanciful, indeed, to treat this case as one where the officers either had to enter defendant’s home to arrest him or to wait at the threshold while the suspect hides or flees. 66 Or App at 652-53, citing State v. Jordan, 288 Or 391, 605 P2d 646, cert den 449 US 846 (1980).
It is also fanciful to say that the officers did nothing more than step across the threshold and take defendant into custody. 66 Or App at 653. The trial court found that the officers “walked in without requesting [defendant’s] consent. * * * [They] entered the house, rather than simply handcuffing Cota at the door and leading him away. * * *” After entering the house and handcuffing defendant, the officers took defendant into a bedroom. The officers did not testify that it was necessary to enter the house to “complete the arrest,” and the trial court expressly found that it was not. Accordingly, I think it would be disingenuous to adopt a “one foot over the *659threshold” analysis to justify a total invasion of the suspect’s home from both the front and back doors and the subsequent sweep of the house based on the “necessity” created by the officers’ entry.
Both the state and the dissenters rely on State v. Jordan, supra, and Payton v. New York, 445 US 573, 100 S Ct 1371, 63 L Ed 2d 639 (1980), contending that those cases stand for the proposition that police officers have the absolute right to enter private premises to make an arrest if they have a warrant for the arrest of an occupant.4 Neither case stands for so broad a proposition.
If the state constitution affords defendant the protection he claims, it is unnecessary to consider whether he is protected by the Fourth Amendment. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983). Although the wording of Article I, section 9, of the Oregon Constitution and the Fourth Amendment are substantially identical and the Oregon courts typically have followed the United States Supreme Court’s interpretation of that language, it does not follow that we have delegated to the federal courts the authority to interpret the state constitution. See State v. Caraher, 293 Or 741, 653 P2d 942 (1982).
The question here has not been squarely decided by either the Oregon courts or the United States Supreme Court. Before discussing the federal decision in Payton v. New York, supra, on which the state relies, I consider the extent to which the Oregon court has relied on Article I, section 9, in deciding whether officers may enter the suspect’s home when they have authority to arrest him. In State v. Girard, 276 Or 511, 555 P2d 445 (1976), the court held that the officers had probable cause to arrest the defendant without a warrant and that there were exigent circumstances sufficient to authorize their entry into the defendant’s residence, where they knew he was, in order to effect the arrest. It was assumed that, in the absence of exigent circumstances, the officers could not enter the house, and the *660only question was whether there were exigent circumstances. In holding that there were, the court cited neither the state nor federal Constitution.
In State v. Olson, 287 Or 157, 598 P2d 670 (1979), the court, relying on both Article I, section 9, of the Oregon Constitution and the Fourth Amendment, held that officers may not enter a private residence to effect an arrest without an arrest warrant, even though they have probable cause to arrest the suspect and to believe that he is in the house, in the absence of exigent circumstances requiring action before a warrant could be obtained, or unless they are in “hot pursuit.” The state had relied in part on ORS 133.235(5), which authorizes an officer to enter premises in which he has probable cause to believe the suspect to be present in order to make an arrest. The court pointed out:
“If probable cause to arrest is all a police officer needs to make constitutionally reasonable a forced entry into a person’s house to arrest him, it is obvious that there will be little necessity for the officer ever to get a warrant; the requirement for entry without a warrant and for getting a warrant would be the same. If an officer does not have to have a warrant to force an entry into the house of a person for his arrest, the officer surely does not have to have one to enter any place else for that purpose. Yet the constitutional provisions obviously must contemplate situations in which a warrant is required.”
Accordingly, the court held that the application of that statute would be unconstitutional when there are no exigent circumstances justifying an entry without a warrant.
State v. Peller, 287 Or 255, 598 P2d 684 (1979), decided a week after Olson, followed the rule laid down in Olson and held that physical evidence and statements obtained as a result of the unlawful entry must be suppressed.5 Then came State v. Jordan, supra. There, the police officers approached the residence of a woman (Sandra Jordan), for whom they had an outstanding arrest warrant; the officers did not know her. They were met at the door by a woman who identified herself ás “Juanita Adams” but refused to produce any identification. A records check reported that name as an alias for Sandra Jordan, so the officers took the woman into *661custody. While in the police car, however, they discovered that the woman did not resemble a mug shot of Sandra. They then entered the house and found Sandra hiding in the attic. A divided court upheld the entry of the house without a search warrant, stating:
“Accordingly, we hold that police officers may enter private premises to make an arrest if they have a valid arrest warrant and probable cause to believe that the subject of the warrant is present on the premises. Neither the fourth amendment to the United States Constitution nor article I, section 9, of the Oregon Constitution requires that police officers also obtain a search warrant.” 288 Or at 402. (Emphasis supplied.)
Even if it is necessary to enter the house to effectuate the arrest, the entry is limited to that purpose. The court stated:
“* * * Furthermore, the entry pursuant to an arrest warrant is valid only for the purpose of making the arrest and not for the purpose of conducting a general search. * * *” 288 Or at 402. (Emphasis supplied.)
Those cases tell us that Article I, section 9, prohibits the police from entering a private residence to effect an arrest, with or without an arrest warrant, except under limited circumstances. If they have probable cause to arrest and to believe that the suspect is in the house, but have no warrant, they may enter only in “hot pursuit” or if there are exigent circumstances. If they have a warrant and have probable cause to believe the suspect is in the house, they may enter if it is necessary to effect the arrest. I do not construe Jordan, as the state does, to authorize entry, even though it is not necessary, if the police have an arrest warrant. To the contrary, I think it is clear that, but for the necessity of entering the house to find the suspect whom the officers had probable cause to believe was in the house, the entry would have required a search warrant.
Neither do I understand Payton v. New York, supra, to support the broad rule espoused by the state. The only issue in Payton was the constitutionality of New York statutes authorizing police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest. The court held that the statutes violated the Fourth Amendment, but went on to state that the police may *662enter if they have an arrest warrant and if they reasonably believe the suspect is inside the house. The court stated:
«* * * n js true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen. If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” 445 US at 602-03. (Emphasis supplied.)
That interpretation of the Fourth Amendment is consistent with Jordan’s intepretation of Article I, section 9.
Clearly, the state’s reliance on Jordan and Payton is unfounded. Here there was no necessity to enter defendant’s house in order to make the arrest. The officers advised defendant that he was under arrest while he was standing in the doorway. The trial court found that defendant neither resisted nor retreated; he submitted to the authority of the officers. There is no explanation why they did not handcuff him on the spot, search him incident to the arrest, inform him of his rights and lead him away — mission accomplished.
Although the state recognizes that the entry was unnecessary, it argues that police have an “absolute right” to enter the premises under Payton and Jordan. It contends that the arrest was not “complete” when defendant was advised he was under arrest and shown the warrant, and that
“* * * £he remainder of the arrest could lawfully take place within the house, and defendant’s removal away from the doorway to a more convenient and safer location within the premises was logically (and reasonably) pursuant to the officers’ established right of entry.”
That argument goes too far; it would eliminate any requirement of necessity to enter a house to effectuate an arrest pursuant to a warrant. Any time the suspect is found at home, the police would be authorized to “complete” the arrest by taking him inside and, once inside, seize evidence in plain view *663and would, perhaps, be justified in making a “protective sweep” of the premises. The need for search warrants would be minimized. In Jordan, the suspect was attempting to conceal herself in her house, and the officers had probable cause to believe that she was within when their initial attempt to arrest “her” at her doorway was deliberately frustrated by the woman who led them to believe she was the suspect. The dictum in Payton confirms that view of Fourth Amendment limits on entry.
It seems clear that the officers did not have authority to enter defendant’s home solely by virtue of the arrest warrant, in the absence of any necessity to do so to effect the arrest. Although the trial court found that there was no need for the officers to enter, it concluded that the entry was “reasonable under all of the circumstances,”6 including the officers’ concern for the welfare of the boy in the house. The state does not contend in its brief that the trial court should be affirmed on that ground, and I would not do so. The trial court’s finding that the police entered because they believed the warrant gave them that authority and the finding that their concern for the boy was an afterthought do not support the court’s conclusion. The initial entry into defendant’s residence was not necessary and, therefore, violated Article I, section 9, of the Oregon Constitution.
To avoid the issue, as the majority does, is to leave law enforcement officers unsure about what they may and may not do lawfully. Given the issue as presented by the officers, the trial court’s findings, defendant’s assignment of error and the state’s brief, we should draw the bright line that the posture of this case calls for: an arrest warrant does not *664authorize entry into the suspect’s home in the absence of necessity.
Because the officers’ entry into defendant’s home was unlawful, it follows that the evidence that they obtained after entry is subject to suppression. I would, therefore, reverse and remand CA A23492 for that reason, and affirm CA A23491.
The disposition of the motion to suppress was divided into two parts. At the conclusion of the pretrial hearing, the trial court ruled that the officers’ conduct after they had entered the residence was permissible, but took under advisement the question whether the initial entry was lawful. Subsequently, by a letter opinion, the court ruled that the entry was reasonable under all of the circumstances. Defendant’s first assignment of error quotes only from the letter opinion deciding that the entry was reasonable. Accordingly, the state contends that that issue is the only one properly raised by defendant, and it may be right.
The majority disposes of this problem by saying (n 2) so what? — if the officers had been concerned for the boy’s safety when they saw him, they might have been justified in entering to assure that he would not be left alone, citing State v. Cloman, 254 Or 1, 456 P2d 67 (1969). Cloman does not go so far. There the officers had sufficient facts to constitute probable cause to arrest the defendant for the crime of theft, but were not sure enough to arrest him for that reason, so they arrested him for violation of an “after hours” ordinance. In contrast, here we would be required to invent a fact that did not exist until after the officers unlawfully entered the house.
The majority apparently holds that because Danny had said that his father was there and identified Killmon as his father, the officers were obligated to accept the boy’s statements. If that is so, the officers could have asked Danny before they entered if his father was there.
The state also argues that the entry can be upheld under a “rule of ‘reasonableness,’ ” relying on Washington v. Chrisman, 455 US 1, 102 S Ct 812, 70 L Ed 2d 778 (1982). In Chrisman, the defendant had been arrested but wanted to go to his abode to get some things. He was permitted to do so, and the officers followed him into his room, where they observed contraband. The Court held that the officers, after arresting the defendant, were authorized to stay with him. That is not this case.
In State v. Peller, supra, the court cited only the Fourth Amendment, but relied primarily on State v. Olson, supra.
The trial court concluded:
“As stated in the dissent in Payton, ‘our cases establish that the ultimate test under the Fourth Amendment is one of “ ‘reasonableness.’ ” 100 S. Ct. at 1397. While not ‘necessary’, I conclude that the action of the officers, in going into Cota’s house before searching and handcuffing him and advising him of his rights, was, ‘reasonable’ under all the circumstances. It was wintertime and after dark. It was less likely to expose him to more embarrassment in front of any neighbors who might have been looking. It might have been less frightening to the child, while the officers made the necessary inquiry regarding care for the child. The officers had an arrest warrant issued by a magistrate. They did not open the door and enter unannounced. I conclude this is not the sort of intrusion barred by the U. S. Constitution’s Fourth Amendment, or by Art. I section 9 of Oregon’s Constitution.’ ”