dissenting.
I believe that both the majority and Judge Buttler are wrong. Accordingly, I submit a third approach, which I feel identifies the problems with, and suggests a reasonable alternative to, the other opinions.
With respect to the issue of whether the initial entry into defendant’s house was lawful, the court in State v. Jordan, 288 Or 391, 605 P2d 646, cert den 449 US 846 (1980), held that police officers may enter a private residence 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 and that an arrest warrant authorizes only the arrest and not a general search. The rule is substantially the same under the Fourth Amendment, although limited to the suspect’s own residence:
“* * * 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.” Payton v. New York, 445 US 573, 602-03, 100 S Ct 1371, 63 L Ed 2d 639 (1980). (Emphasis supplied.)
There is no dispute but that the officers in this case had a valid arrest warrant or that their initial entry was for any purpose other than to effect the arrest. Notwithstanding that, Judge Buttler determines that, “in the absence of any necessity to do so,” the officers could not enter defendant’s house.
Neither Jordan nor Payton prescribes such a rule of “necessity.” Apparently, Judge Buttler has decided that the officers were constitutionally required to ask defendant to step outside and join them on the porch. The creation of this *665new rule out of whole cloth and its application in this case is precisely the sort of second-guessing courts should avoid in evaluating police conduct in making an arrest.
At the suppression hearing, defendant described the officers’ entry and his arrest as follows:
“Seargeant Englert, who was the first at the door, said, ‘Mr. Cota?’
“And I said, ‘Yes,’ and he handed me a piece of paper. He said that you are under arrest, and within inside of approximately five seconds he took the paper out. He grabbed me — he grabbed my hands and put one hand on one side and then took the paper out of my hand and put it on the chair, which was right inside the threshhold [sic] or inside the threshhold [sic].
“He stepped inside and took the paper out of my hand and then handcuffed me behind my back.”
Although, arguably, in retrospect it may not have been necessary for the officers to cross the threshold to make the arrest, under these circumstances that minimal intrusion by officers armed with a warrant was not unreasonable. Neither Article 1, section 9, nor the Fourth Amendment requires that police officers wait at the threshold while a suspect flees. See State v. Jordan, supra, 288 Or at 401. Furthermore, as the court observed in Washington v. Chrisman, 455 US 1, 7, 102 S Ct 812, 70 L Ed 2d 778 (1982):
“Every arrest must be presumed to present a risk of danger to the arresting officer. * * * There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. Although the Supreme Court of Washington found little likelihood that Overdahl could escape from his dormitory room, an arresting officer’s custodial authority over an arrested person does not depend upon a reviewing court’s after-the-fact assessment of the particular arrest situation. * * *” (Citations omitted; emphasis supplied.)
The trial court correctly applied a test based on reasonableness, not necessity. However, Judge Buttler suggests that the only fair conclusion which may be drawn from the trial court’s findings is that entry into the house was unjustified. I find his logic hard to follow, inasmuch as the very judge who made the findings concluded, as I have, that the officers *666stepping across the threshold to handcuff defendant and thereby to place him in secure custody was not unreasonable.
The next inquiry involves the scope of the search. The issue is whether the activities of the officers following the initial entry leading to the discovery of the cocaine is prohibited by the state or federal constitutions. I do not agree with Judge Gillette’s contention that the officers lost whatever rights they had as soon as they encountered Killmon. It is true, as defendant contends, that warrantless searches are per se unreasonable. See, e.g., State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979). However, there are well recognized exceptions to the warrant requirement.
One recognized exception is the need for an officer to respond to a preceived emergency. State v. Jones, 45 Or App 617, 608 P2d 1220, rev den 289 Or 337 (1980). Immediately after entering the house and handcuffing defendant, the officer asked him if anyone else was in the house. He responded that there was no one else. He was noncommittal when asked where the boy’s father was and if there was anyone to take care of the boy. The officers had a responsibility to determine who would look after the boy if they removed defendant, who appeared to be the only adult in the residence. They either had to find someone else in the house to care for the boy or take him to a secure environment. It was reasonable for the officers to conclude that that problem required immediate attention. The officers asked the boy where his father was and were led to the stairway where Killmon was discovered. When Killmon was asked by the officer if he was the boy’s father he responded that he wanted a lawyer. That was a response he was entitled to make and perhaps not inappropriate under the circumstances. However, the response gave the officer no confirmation that Killmon was the boy’s father and would be responsible for him.
The officer testified that after patting Killmon down for weapons, he went up the stairs to see if anyone else was there. The trial court concluded, and we concur, that he went up the stairs for that purpose and not to conduct a search for evidence. When he ascended the stairs, the officer was still engaged in the process of looking after the safety of the child. He was not engaged in searching for evidence. If his actions were a reasonable response to the problem needing immediate *667attention, there was no constitutional violation. As we said in State v. Jones, supra:
«* * * The inquiry is whether the facts available to the officer would lead a prudent and reasonable officer to see a need for immediate action to protect life or property. * * *” 45 Or App at 621.
An officer faced with such a problem must make a hasty decision to resolve it. Even if we could, in hindsight, devise an appropriate alternative action, that would not necessarily mean the officer acted unreasonably. It may have been acceptable for the officer simply to leave the child on the assumption that Killmon was the boy’s father and the boy would be safe after the officers left. However, under the circumstances we cannot say it was unreasonable for the officer to take the further action of seeing if anyone else was in the house to care for the child. I conclude that the officer was lawfully at the top of the stairs when he saw the narcotics and related paraphernalia in plain view on the table.
I would, therefore, affirm.
Richardson and Van Hoomissen, J.J., join in this dissent.