dissenting, with whom ROSE, Chief Justice, joins.
I am convinced that our court should grant the Petition for Rehearing which has been filed in this case. I am persuaded to do so, not so much by the authority presented in the Brief in Support of Applicant’s Petition for Rehearing but by extraneous events.
The Supreme Court of the United States, in the case of Washington v. Chrisman,-U.S. -, 102 S.Ct. 812, 70 L.Ed.2d 778 (decided 1982), reversed the Supreme Court of Washington in State v. Chrisman, 94 Wash.2d 711, 619 P.2d 971 (1980), cited in my concurring opinion previously filed. While concluding that the officer in Washington v. Chrisman, supra, was lawfully in the dormitory room, the majority of the Supreme Court of the United States said in footnote 5, which concededly is dictum:
“The circumstances of this case distinguish it significantly from one in which an officer, who happens to pass by chance an open doorway to a residence, observes what he believes to be contraband inside. See, e.g., Payton v. New York, 445 U.S. 573, 585-589 [100 S.Ct. 1371, 1379-1381, 63 L.Ed.2d 639] (1980); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).”
For me this handwriting on the wall is too clear to justify any conclusion other than the conclusion that Jessee v. State, 640 P.2d 56 (Wyo., decided 1982) would be reversed if it came to the attention of the Supreme Court of the United States. Since I am so persuaded I believe that we should grant the Petition for Rehearing and take another look at this situation. Despite the claim of exigent circumstances I think the reference to “an officer, who happens to pass by chance an open doorway to a residence” aptly describes what occurred in this case. It would seem from the comments of the minority members of the Supreme Court of the United States in Washington v. Chrisman, supra, that all nine of those Justices would hold that this search violates the provisions of the Constitution of the United States.