concurring in part; dissenting in part.
I agree with the analysis in the concurring opinion of De Muniz, J., about the reluctant necessity to follow State v. MacDonald, 105 Or App 102, 803 P2d 1211 (1990), rev den 311 Or 433 (1991). Consequently, I also agree with the majority’s conclusion that the trial court erred in suppressing the container and its contents as to defendant Morton. I dissent, however, from the majority’s conclusion that the same evidence was properly suppressed as to defendant Evans.
The essence of the majority’s analysis of Evans’ motion is that the state did not argue below or on appeal that Evans is foreclosed from challenging the evidence on the basis that Morton had no privacy interest in the container. The majority says that the only argument advanced by the state regarding Evans is that the warrant to arrest Morton was valid. It is important, for resolution of Evans’ motion, to *241understand the factual basis of the search, the charges made and the procedural posture of the hearing and appeal.
On the basis of information received from a federal marshall, Detective Carpenter of the Springfield Police Department began surveillance of two particular rooms at a motel. The motel clerk identified defendant Morton as the person who rented one of the rooms. Carpenter determined that Morton’s boyfriend, defendant Evans, was also in the room. Carpenter learned that there was an outstanding arrest warrant for Morton and information from which he concluded that Evans may be armed and dangerous.
Carpenter and several other officers continued their surveillance of the two motel rooms and of four to six persons who appeared to be associated with the rooms. Based on all the information that the officers had, they suspected that illegal drug activity was being conducted in the motel rooms.
When four of the persons1 left the motel with luggage, the officers approached them as they were getting into two vehicles. When defendant Morton saw the officers, she turned and walked away from the vehicle that Evans was standing near. One officer went to Morton, told her she was under arrest on a warrant and then attempted to place her in handcuffs. She struggled and he took her over to one of the vehicles to get her handcuffed. As he got near the vehicle, he saw a white pill container, about 10 inches by 3 inches, fall from under her jacket. He asked Morton what that was. She responded that it was not hers and “you guys must have planted that.” The officer picked up the container, later opened it and found methamphetamine and some syringes.
At about the same time that the officer approached Morton to arrest her, another officer went to defendant Evans, and handcuffed him for “protection of the officers” while Morton was being arrested. The officer “frisked” Evans and seized a box of .45 caliber ammunition. That officer then “did a quick search of the vehicle” and found a .45 caliber handgun.
*242In a joint indictment, Evans was individually-charged with unlawful possession of a firearm in a vehicle and being a convicted felon in possession of a firearm. He was jointly charged with Morton with unlawful delivery of a controlled substance, methamphetamine. In addition, the indictment charged Morton with possession of a controlled substance.
The state’s apparent theory of the charge for delivery of a controlled substance was that there was drug activity going on in the motel room occupied by defendants and that the methamphetamine and drug paraphernalia in the container was evidence of the drug activity.
The cases were processed separately and defendants filed separate motions for suppression of evidence. Evans moved to suppress all items seized from his possession. One of the grounds expressed in the accompanying memoranda was that the warrant for Morton’s arrest was unlawful so any search or seizure following her arrest was unlawful.
Mortonmovedto suppress her “seizure” as unlawful as well as the subsequent seizure and search of the closed container. She argued that the warrant was unlawfully issued under ORS 153.560(1) and consequently her arrest and all that followed was unlawful.
In a responding memorandum to Morton’s motion, the state argued that, because Morton disclaimed any ownership or knowledge of the container, she did not have “standing”2 to challenge its seizure under MacDonald. The state also contended that the arrest warrant was lawfully issued.
The cases were joined for purposes of a hearing on both defendants’ motions. Near the start of the hearing, counsel for defendant Morton said:
“Can I, for the purposes of this hearing, say that, you . know, my motion and his [counsel for defendant Evans] motion, we ask to join in his motion and I also ask to join in any objections he makes. And I think he may want to be first.”
*243In essence, the motions were heard together as joint motions. The court, in part, ruled separately, because the frisk of Evans and the search of the car related only to the charges against Evans individually. In relation to Morton, the court ruled that the arrest warrant was unlawfully issued; it did not expressly address the state’s argument about “standing.” However, because it concluded that there was an unlawful search, it implicitly rejected the state’s argument.
There were two separate orders issued. One names only defendant Morton and made findings and conclusions about the arrest warrant. That order concluded that Morton’s motion to suppress was granted on the basis of an unlawful arrest. The second order named both defendants but the findings and conclusions related only to the validity of the frisk of Evans and the evidence obtained following what the court characterized as an unlawful arrest of Evans. The order then stated:
“All evidence obtained subsequent to the unlawful arrest of Mr. Evans is therefore suppressed.”
It is clear to me that, although the rulings were precise as to the evidence that related to each defendant, the motions, arguments and rulings were treated as relating to both cases. The state, at trial, made its arguments in relation to both defendants. Both defendants contended that the seizure of the container was unlawful and should be suppressed as to both of them. The state’s argument about Morton having no privacy interest in the container, because she disclaimed ownership, implicitly related to Evans’ motion to suppress, because he joined Morton’s motion and arguments and had presented no other basis for suppression than did Morton. There was no separate ground for the state to address.
The court’s written orders are explainable only by treating any ruling about the container and its contents as common to both defendants. They were jointly charged with delivery of methamphetamine and the contents of the container was the state’s primary evidence. The order as to Evans, however, related only to evidence seized after his “illegal arrest.” That order did not deal with the container and its contents. If we look only at the order and parse the rulings out to each defendant individually, as the majority does, the container and contents were not suppressed as to *244Evans. He does not cross-appeal or otherwise raise that issue. If the majority is concerned that the state made no argument about that evidence in relation to Evans, its concern is misplaced because the evidence was not suppressed as to Evans; at least if we read the order in Evans’ case literally.
That reading of the text of the order in the context of the entire proceedings, however, makes no sense and is unreasonable. The trial court ruled that the container was unlawfully seized from defendant Morton because her arrest was unlawful. That ruling inured to Evans’ benefit because the state cannot, as Evans argued, use unlawfully seized evidence. Evans made no argument for suppression different than that made by Morton. The ruling, thus, was that the evidence was illegally obtained because Morton’s privacy right was violated. There was no ruling that a separate privacy right of Evans was violated by the seizure and no need for the state to address such an argument.
On the other side of the coin, if the trial court had concluded, consistent with the state’s argument, that Morton claimed no interest in the container and then had denied suppression because no privacy right had been violated, the joint motions regarding the container would be denied as to both defendants. Evans could not have then raised a privacy interest separate from Morton’s and there would have been no need to separately address the seizure issue as to Evans. The majority is wrong if it concludes that the state had to make a separate, particular argument as to Evans’ motion.
To illustrate the majority’s problem, suppose that Morton had consented to the search of her person and the seizure of the container and that there was, therefore, no search incident to an arrest. The evidence would have been lawfully obtained by the police. No one would argue that Evans could seek suppression of the container on the grounds that he did not consent to the search or seizure. See State v. Tanner, 304 Or 312, 745 P2d 757 (1987).
From this overly elaborate explanation of the trial court’s procedure and rationale, we proceed to the appeal. The state appealed separately from the order in each case because the cases had not been consolidated at the lower level; there had only been a joint hearing. We allowed the state’s *245motion to consolidate the cases because they raised the same legal issues on the same set of facts. The state filed one brief for the consolidated cases and defendants filed a joint respondents’ brief.
The state contests only the suppression of the container and makes no argument about the frisk of Evans or the search of the car; consequently, the only issue on appeal is the seizure of the container. Because the trial court addressed only the seizure as it related to Morton and phrased its conclusions in terms of an illegal arrest of Morton, it is logical for the state to address those conclusions directly and in that mode. The trial court made no separate findings about the container as it relates to Evans, because it followed as a matter of course, at least for the trial court, that if the evidence was seized unlawfully from Morton, it is also suppressed for use in Evans’ trial.
However, the state did argue in its brief about Evans’ right to suppression. It said:
“The search of defendant Morton did not infringe any constitutionally protected interest of defendant [Evans]. He put on no evidence that he had entrusted the methamphetamine to Morton or that he held any other protected interest that was infringed by her stop or the seizure of the container.”
Considering the connection that Evans has to the evidence, that is all the state needs to argue. Evans did not offer at trial, and does not offer now, any basis for the motion to suppress the container other than the argument that Morton was unlawfully arrested and searched.
The majority approaches the issue as one of preservation. It is correct, as the state acknowledges, that it did not argue below that Evans had no separate privacy interest in the container. However, the issue of preservation is not game-playing; it is a question of whether the trial court was presented with the issue to resolve. As I have demonstrated, the trial court was presented with the issue — was the evidence lawfully seized from Morton. It followed, in the trial court, that if the evidence was unlawfully seized, the joint motion to suppress it would be allowed as to both defendants. Conversely, if the evidence was lawfully seized, the joint motion to *246supress it would be denied. That scenario has not changed on appeal.
I am mystified by the majority’s legal analysis that Morton cannot use her illegal arrest as a basis of suppression, but Evans can. The state lawfully seized the evidence because there is no privacy interest violated. So, what constitutional violation vis-a-vis Evans exists in this case? The majority simply allows Evans to claim that an unlawful arrest of Morton allows him to argue that the seizure of evidence violates his constitutional rights. Morton’s rights were not violated; there was no search and no unlawful seizure. There is nothing else to address.
I dissent. Haselton, J., joins in this dissent.The officers concluded that two of the six persons were not involved with the motel rooms or with the other four persons under surveillance.
The state later explained that what it meant by standing was that there was no violation of a privacy interest and no search or seizure in a constitutional sense.