dissenting.
The trial court’s opinion cogently identified the issue in this case:
“The question here is: Was the original stop of the defendant’s car by Officer White justified? If it was, the fact that Officer White smelled the odor of alcohol and burned marijuana emanating from the car when he was talking to the driver through the open window of the car would have justified a warrantless search of the vehicle for both alcoholic beverages and marijuana.
“If the stop of the defendant’s car was not justified, the resulting search was not justified.”
I would hold the stop of defendant’s car to have been justified, and thus respectfully disagree with the trial court’s and majority’s contrary conclusion.
Were we writing on a blank slate, there would be much to be said for a rule that would permit law enforcement officers to stop any motor vehicle using Oregon highways at any time for any reason. The use and abuse of motor vehicles present unique contemporary problems, the subject of extensive attempted legislative control. See, ORS chs 481-486. But much of the attempted control is an empty gesture if, for example, the driver whose license has been suspended has a constitutional right not to be stopped and asked to display his license. Motorists using our highways are deemed to consent to “long-arm” service of process, ORS 15.190; such statutes have been held *352constitutional. Hess v. Pawloski, 274 US 352, 47 S Ct 632, 71 L Ed 1091 (1927). Motorists using our highways are deemed to consent to certain chemical intoxication tests, OES 483.634 et seq; such statutes have been held constitutional. Heer v. Dept. of Motor Vehicles, 252 Or 455, 450 P2d 533 (1969). Could it not likewise be concluded that motorists using our highways can be deemed to have consented to momentary detention sufficient to insure compliance with traffic control laws? Cf., People v. Ingle, 17 Crim L Rptr 2084 (NY Ct App April 1, 1975).
But the slate is not blank. State v. Cloman, 254 Or 1, 6, 456 P2d 67 (1969), holds that before law enforcement officers can stop a motor vehicle they must have “reasonable suspicion that the car or its occupants have a connection with criminal activity.” Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), adopts substantially the same rule governing police stops of individuals afoot. Thus, I proceed on the assumption that, regardless of the possible merit of drawing a distinction, the constitutional rule applicable to motor vehicle stops and to stops of individuals not in motor vehicles is the same.
In applying the rule, I think it should first be clearly established that an officer’s statement that he did not personally suspect criminal activity is not controlling. Just as we do not regard a policeman’s statement that he does have grounds to search as necessarily controlling, e.g., State v. Hughes, 20 Or App 493, 532 P2d 818 (1975), we should not necessarily make a contrary statement controlling. Many of our cases so state or at least imply. State v. Brewton, 19 Or App 899, 529 P2d 967 (1974), Sup Ct review denied (1975); State v. Evans, 19 Or App 345, 527 P2d 731 (1974), Sup Ct review denied (1975); State v. Holmes, 17 Or App 464, 522 P2d 900 (1974); State v. Childers, 13 Or App 622, 511 P2d 447, Sup Ct review *353denied (1973); State v. Temple, 7 Or App 91, 488 P2d 1380, Sup Ct review denied (1971), cert denied 406 US 973 (1972); State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct review denied (1970). See also, State v. Cloman, supra. The test should be: Would a reasonable person, knowledgeable or experienced in law enforcement, reasonably conclude from the facts perceived by the officer that there was a basis for a search or stop. In short, the test should be an objective one based on a reasonable-person standard, rather than a subjective one based on the conclusions of the individual officer.
The question then becomes whether the facts confronting an officer give rise to authority to search based on probable cause or authority to stop based on reasonable suspicion.
The facts are almost always capable of alternative interpretations. For example, a driver going around the block late at night in a residential neighborhood, as the defendant did in this case, could be looldng for a house to burglarize or could be looking for an open gas station. And an individual walking back and forth on the sidewalk repeatedly looking in a store window — the facts of Terry v. Ohio, supra— might be planning a robbery or waiting to meet a friend. We say the facts need not indicate criminality beyond a reasonable doubt in order to establish probable cause to search. State v. Dills, 19 Or App 702, 528 P2d 1354 (1974). And we say reasonable suspicion authorizing a stop is something less than probable cause. State v. Caproni, 19 Or App 789, 529 P2d 974 (1974). But defining the authority to search or stop by negation leaves something to be desired.
Remembering that facts can be capable of alternative interpretations, I think the better way to articulate the test is: (1) if the facts, evaluated ob*354jectively,, indicate that it is as likely or more likely that a person has committed a crime and possesses evidence of that crime, this constitutes probable cause to arrest and search; (2) if the facts, evaluated objectively, indicate there is any reasonable possibility that a person has committed or is about to commit a crime, this authorizes a Terry-type momentary stop of a motor vehicle or of an individual.
Applying the second half of that rule here, I think a reasonable person would conclude there was a possibility that defendant was about to commit a crime; this authorized the stop of her car. Defendant changed directions a couple of times on Highway 101, punctuating her driving by excursions onto side, residential streets. It was very late at night. There had been burglaries in the area.
The majority states, “There was nothing unusual about the manner in which * * * [defendant’s] car was operated,” 21 Or App at 341, and concludes, “The facts * * * cannot support a reasonable suspicion that the defendant had committed a crime,” 21 Or App at 343. On the law, Terry tells me a stop is permitted based on a reasonable possibility defendant was about to commit a crime; whether there was a possibility defendant “had committed” a crime is an incomplete statement of the rule. On the facts, I simply disagree that there was “nothing unusual” confronting the officer here; I think defendant’s late-night meandering through a residential area where burglaries had occurred was sufficiently unusual to authorize the stop of her vehicle.
I think that many of the decisions of this court, discussed by the majority, tend to support my conclusion. However, the majority distinguishes those prior decisions on the basis that they involved police officers approaching stopped motor vehicles, *355whereas this case involves the stopping of a vehicle. I am not persuaded this distinction should produce a different result. Regardless of the theoretical accuracy of the majority’s belief that the occupants of a car already stopped when approached by a police officer are free to “ignore the officer altogether,” 75 Adv Sh 1681, looking to the realities, a “citizen’s freedom of movement is restricted,” State v. Evans, supra, 16 Or App at 194, as equally by being momentarily stopped as by being momentarily prevented from starting.
I would reverse and remand for trial.