dissenting.
I would hold that the search of defendant’s car violated Article I, section 9, and that the marijuana should have been suppressed.
I disagree with the majority in two ways. First, under the facts of this case, the search was not reasonable in scope or intensity. Second, in their determination of reasonableness the majority fails to take into consideration the question of whether the officer had an opportunity to obtain a search warrant.
Concerning the facts in applying the test of reasonableness, defendant was arrested for driving while suspended and giving a false name to a police officer. These are not possessory offenses, as were the offenses in State v. Caraher, 293 Or 741, 653 P2,d 942 (1982), and State v. Flores, 68 Or App 617, 685 P2d 999 (1984). There was nothing, beyond the officer’s experience with other men, to indicate that evidence of those offenses might be in the car. Yet the court’s analysis is far more cursory than are the analyses in Caraher and Flores.1
*615In Caraher, the search was of the defendant’s purse, which she was carrying at the time of the arrest. In Flores, the search was of the passenger compartment of the defendant’s automobile. The court in Caraher noted that “the nature of the crime, i.e., possession, and the circumstances involved here, defendant’s admission that she was selling ‘bunk’ and her companion’s statement that she was selling cocaine,” justified the search. 293 Or at 759. In Flores, this court went through a careful analysis, based on successive discoveries of contraband, to justify the search. It did not assume that a search of the entire passenger compartment of defendant’s automobile would have been reasonably incident to his arrest for possession of marijuana. In this case, in contrast, the court simply approves the search, apparently having difficulty only with the officer’s placing defendant in the police car before searching. Yet the likelihood of finding evidence of the crimes for which defendant was arrested was significantly smaller in this case than it was in Caraher and Flores, and the scope of the search was much broader. Searches of a purse a defendant is carrying, and of a paper bag next to the defendant’s seat, from which the defendant just took some contraband, are obviously much closer in scope and intensity to the basis for the defendant’s arrest than is the search of an entire passenger compartment before anything is found in it.
The majority determines that defendant’s arrest and placement in the patrol car did not sufficiently alter the spatial relationship between the arrest and the subsequent search to invalidate the search. The majority misses the mark because it has left out a fourth consideration in determining reasonableness. In addition to time, scope and intensity the court should consider whether there was an opportunity to obtain a search warrant. State v. Chinn, 231 Or 259, 373 P2d 392 (1962). The court reasoned in Chinn that “a search might be held unreasonable if the officers had ample opportunity to consult a magistrate and obtain a search warrant but failed to do so.” 231 Or at 268. The court reaffirmed Chinn’s reasoning in State v. Lowry, 295 Or 337, 667 P2d 996 (1983).
“The time to make the judicial determination whether there is probable cause for a search or seizure, if time permits, is before the individual’s privacy is invaded * * *. The reasons for the exception from the rule are always one form or another of practical necessity to act before a warrant can be obtained.” 295 Or at 336-37.
*616In this instance defendant was under arrest and in the patrol car. The officer intended to lock the car. There is no indication that anyone else had access to the car. In such circumstances there is no practical necessity to conduct an immediate search and there was an adequate opportunity to apply for a search warrant.
Although the search in this case was related to the crimes for which defendant was arrested, I would hold that it was not reasonable in scope or intensity and that the police officers had an opportunity to obtain a warrant. The crimes were not ones of possession, the likelihood of finding additional evidence was not great, the search was highly intrusive, the defendant was secured, the car was immobilized and there was no evidence of others having access to it. If this search is permissible, this court has come close to adopting the rule of New York v. Belton, 453 US 454, 101 S Ct 2860, 69 L Ed 2d 768 (1981), permitting searches of the entire passenger compartments of automobiles incident to arrest, under the Oregon Constitution. I do not think that either Belton or this search is consistent with the careful analysis of searches incident to arrest our Supreme Court has established, and I therefore dissent.
Joseph, C. J., and Newman, J., join in this opinion.The officer based his search on his experience that most men carry wallets and on the fact that he had not found one on defendant. That reason is much weaker than were the direct statements of the defendant and her companion in State v. Caraher, supra, or the actual discovery of contraband on the defendant’s person in circumstances which directly related it to the paper sack next to the driver’s seat in State v. Flores, supra.