dissenting.
Because I disagree with the majority’s conclusion that the so-called automobile exception, State v. Brown, 301 Or 268, 721 P2d 1357 (1986), as extended by State v. Kock, *660302 Or 29, 725 P2d 1285 (1986), authorized the search of defendant’s pickup truck, I dissent.
Assuming that that exception to the warrant requirement could be applicable here, the officer must have either observed evidence of a crime in plain view, State v. Porter, 312 Or 112, 817 P2d 1306 (1991), or must have had probable cause to believe that there was additional evidence in the pickup that would have supported charging defendant with a crime. In State v. Brown, supra, 301 Or at 276, the court emphasized:
“The police ticket to admission into a stopped mobile vehicle is probable cause. The test is whether a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers.”
Here, all that the officer could say is that, when he asked defendant what was underneath the jacket on the front seat, defendant lifted the jacket, revealing a small container that the officer knew was commonly used for storage of narcotics. He then asked defendant what was in it, and defendant said “pot.” The officer testified that defendant was “extremely cooperative” and that, when he asked him to open the container, defendant did so, revealing the marijuana. The officer then asked defendant if there were any more drugs in the pickup, whereupon defendant reached into his shirt pocket and pulled out a small ziplock baggie that also contained marijuana and handed it to the officer. The total amount of marijuana in the two containers was less than an ounce. When asked if there was any more in the pickup, defendant said that there was not.
If those facts had been set out in an affidavit in support of a request for a search warrant, a magistrate would not have been justified in issuing one. At best, the officer was suspicious but, given defendant’s “extremely cooperative” responses, there is no apparent basis for believing that defendant was not telling the truth.
Aside from the automobile exception, this court held in State v. Tallman, 76 Or App 715, 720, 712 P2d 116 (1985), that
“it would be incongruous, in the light of the legislative policy to decriminalize possession of less than one ounce of *661marijuana and to eliminate the possibility of arrest, to hold that probable cause to search for more flows automatically from the discovery of less. To allow the intrusion of a search on that basis would subject violators to some of the criminal sanctions which the legislature, intended to remove. As a matter of law, possession of less than one ounce cannot by itself create probáble cause to search for more.”
We went on to hold that the officer’s observation of furtive motions by the defendant and his companion before he reached their car and the odor of incense did not supply additional facts sufficient to justify the belief that there was more contraband concealed in the car.
Because the officers did not have probable cause to search defendant’s pickup, I would reverse the denial of defendant’s motion to suppress the evidence obtained as a result of the search.