¶ 28. (dissenting). The problem with this case, as the State's brief explains, is that "[a]t the suppression hearing, the defense and the prosecution could have been two ships passing in the night." Brief for State at 11.1 agree with the State's characterization of the suppression hearing. Apparently so did the court of appeals. This record produced three opinions in the court of appeals: the "lead opinion" by Judge Sundby, a concurrence by Judge Gartzke, and a dissent by Judge Dykman. State v. Caban, 202 Wis. 2d 417, 551 N.W.2d 24 (Ct. App. 1996).
*612¶ 29. I would dismiss this petition as improvidently granted. I believe the court of appeals did not erroneously exercise its appellate discretion in reviewing the merits of the defendant's probable cause challenge despite its finding that the defendant had waived the issue of probable cause.
¶ 30. Furthermore, I do not think this court can, on this record, add anything to the body of law about probable cause, so I would not review the court of appeals' decision on this issue, regardless of whether I agreed or disagreed with it.
¶ 31. I will first discuss how this court should review the court of appeals' discretionary decision to address the issue of probable cause to search the defendant's car. I will then discuss various approaches the court might take to determine whether the defendant in this case "waived" or "conceded" the probable cause issue, were it appropriate to reach this issue.
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¶ 32. The State presented the following issue m its petition for review: "When a defendant concedes probable cause in the trial court, challenging a search solely on the ground that a warrant was required because there were neither exigent circumstances nor consent, may the defendant challenge probable cause in his appeal?"
¶ 33. As a general matter, when a party fails to raise an issue in the circuit court, the issue will not be considered as a matter of right for the first time on appeal. Binder v. Madison, 72 Wis. 2d 613, 618, 241 N.W.2d 613 (1976). The rule of waiver is, however, a rule of administration and the rule does not limit an appellate court's power to address the issued waived. *613Majority op. at 610; Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d .140 (1980).
¶ 34. The State prevailed on the issue of concession or waiver in the court of appeals. Two judges of the court of appeals, Judge Gartzke in concurrence and Judge Dykman in dissent, found that the defendant had waived his challenge to the existence of probable cause to support the search and thus lost his right to appeal. These two judges agreed that the court of appeals could nevertheless address the issue as a matter of discretion, but they disagreed whether the court of appeals should reach the issue. A different pair of judges, however, concluded that the court of appeals should review the merits of the issue, Judge Sundby in the lead opinion recognizing the defendant's right of appeal, and Judge Gartzke in concurrence recognizing that the court could review the issue as a matter of appellate discretion. Thus, in effect, the court of appeals addressed the issue of probable cause as a matter of discretion. Neither the parties nor the majority opinion suggests that the court of appeals had no such discretion. .
¶ 35. The supreme court has emphatically stated that it is reluctant to interfere with a court of appeals' exercise of discretion and will ordinarily refrain from reviewing a discretionary determination of the court of appeals. State v. McConnohie, 113 Wis. 2d 362, 369-72, 334 N.W.2d 903 (1983). Were this court to review a discretionary decision of the court of appeals, the standard of review would be whether the court of appeals had erroneously exercised its discretion. Id. at 368.
¶ 36. Thus in order to reverse the court of appeals decision in this case on the ground that the defendant waived or conceded the issue of probable cause, the court must first find that the court of appeals *614erroneously exercised its discretion in addressing the issue of probable cause, and only then should it decide whether the defendant failed to preserve his right to appeal that issue.
¶ 37. The majority opinion, however, fails to review the court of appeals' discretionary decision to reach the issue of probable cause. I can find no erroneous exercise of discretion by the court of appeals in deciding to reach that issue. I believe that waiver has ceased to be an issue in this case because the court of appeals properly exercised its discretion to look beyond the waiver to the merits of the defendant's constitutional claim. I therefore conclude that the majority opinion errs in deciding whether the defendant waived or conceded the issue of probable cause.
¶ 38. Under these circumstances, I believe the proper disposition is to dismiss the petition as improvidently granted. Because waiver has ceased to be an issue absent erroneous exercise of appellate discretion, all that remains is the issue of probable cause. Were we to review the court of appeals' disposition of the probable cause issue, we would be acting outside our principal function as a law defining and law developing court. Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997). The law on probable cause is clear; the task of the circuit court and court of appeals is to apply the rules of law to specific fact situations. Were we to rule on probable cause we would be performing merely an error correcting function which as we have said numerous times, is not the function of this court but is the principal function of the court of appeals. State v. Minued, 141 Wis. 2d 325, 327-28, 415 N.W.2d 515 (1987) (per curiam) (dismissing as improvidently granted; "Review in the present case by this court [of the issue of sufficiency of the evidence to warrant a jury *615instruction] is inappropriate because it would amount to a review for correctness"); McConnohie, 113 Wis. 2d at 370-71.
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¶ 39. Although I believe we should not address probable cause and we may not address waiver absent a finding that the court of appeals erroneously exercised its appellate discretion, I add some thoughts on the application of waiver principles to the somewhat confused record in this case.
¶ 40. I begin by stating what I believe distinguishes this purported waiver from most. In this case the defendant does not simply claim for the first time on appeal that there was no probable cause. Rather, the defendant objects to the dispositive holding of the circuit court that there was probable cause. Although the defendant did not raise the issue of probable cause in the circuit court, it appears that it was both raised and ruled upon by the circuit court.1 Indeed, it became the sole dispositive legal issue in the case.
¶ 41. Both the court of appeals (except for Judge Sundby) and the majority opinion conclude that the defendant has lost his right to appeal the issue of probable cause under these circumstances. I do not believe that either the court of appeals or the majority opinion has fully analyzed the waiver question.
¶ 42. To explain my concern, I turn to the record and examine the positions of the State, the defendant and the circuit court. I then discuss the legal issues of waiver and concession.
*616A.
¶ 43. At the suppression hearing before the circuit court, neither the State's nor the defendant's position rested on probable cause. Both the State and the defendant relied on arguments other than probable cause to support their positions on the validity of the search of the defendant's car.
¶ 44. In the circuit court the State advanced two chief theories to justify the search of the defendant's car. First, the State argued that because the defendant's car was on the Hollingsworth premises, it was within the ambit of the search warrant. Second, the State argued that the search of the defendant's car was a valid search incident to the defendant's arrest. In addition, the State put forth evidence which might show the existence of probable cause either to arrest the defendant or to search his car.
¶ 45. In his motion to suppress the evidence seized from his car the defendant raised a general claim that the seizure of the marijuana found in the search of his car "was not done with lawful authority and was in violation of the defendant's rights as set forth in the U.S. Constitution, Article IV" and article I, section 11 of the Wisconsin constitution.2 Both in his *617motion to suppress and in his arguments before the circuit court, the defendant contended that the car was not included in the search warrant and further asserted the following: the car was not occupied at the time of seizure; the defendant was not in close proximity to the car; the car did not pose any threat. At the suppression hearing the defendant further argued that the police could have easily obtained a search warrant for the car.
¶ 46. The circuit court concluded that the warrant the police were executing did not authorize a search of the defendant's car but that the search of the car was valid, apparently as incident to the defendant's valid arrest. On appeal, however, the State conceded that the defendant's car was not covered by the search warrant and that the defendant had not been placed under arrest until after his car had been searched. Apparently the court of appeals agreed, nor does the State now argue that the search was authorized by the warrant or incident to a valid arrest.
¶ 47. While not entirely clear, it appears that independent of its mistaken view of the timing of the defendant's arrest and the search of the car, the circuit court found the search valid as supported by probable cause and therefore justified as within the automobile exception to the warrant requirement. The State so interprets the circuit court's holding, brief for State at 4, and so did Judge Gartzke. Accordingly, the circuit court's sole extant legal basis for denying the motion to suppress the evidence found in the car was that there was probable cause to search the car.3
*618¶ 48. ‘ Neither the State nor the defendant argued in the circuit court whether the search was valid because it was supported by probable cause. But the record makes clear that the circuit court viewed probable cause as an issue. According to the State, the prosecutor knew that probable cause was a significant issue and introduced some evidence relevant to probable cause. The State further asserts that the prosecutor was prevented from introducing additional evidence relating to probable cause because the defendant objected. Brief for State at 11-13.
B.
¶ 49. With this background of the events in the circuit court, I turn now to the waiver of the issue of probable cause and the right to appellate review of this issue. Because the positions of the parties at the circuit court were unclear and the circuit court's rulings were in part erroneous, the waiver issue is itself clouded. The record is sufficiently clear, however, to suggest the following observations.
¶ 50. Had neither party raised in the circuit court the issue of probable cause to search the car and had the circuit court not ruled on the issue, this case would present the traditional circumstances of waiver. See, e.g., State v. Gove, 148 Wis. 2d 936, 940-41, 437 N.W.2d 218 (1989). The losing party (the defendant here) would have waived the issue of probable cause and could not, as a matter of right, raise the issue on appeal.
¶ 51. Yet the present case does not present the traditional circumstances of waiver because the circuit court ruled on the issue of probable cause.
¶ 52. While the defendant did not raise the issue of probable cause, and the State may or may not have, *619the circuit court ruled as the sole dispositive legal ruling in the case that there was probable cause to search the defendant's car. Under such circumstances, the losing party (the defendant here) should be able to argue on appeal against the circuit court's dispositive probable cause ruling because the issue was one raised by the circuit court and the losing party had no meaningful opportunity to address it after the circuit court raised it and ruled on it. A party should not be found to have lost its right to appeal when there otherwise would be no avenue for review of the circuit court's sole legal ruling.
¶ 53. The state argues that the defendant not only failed to raise the issue of probable cause but conceded the issue at the suppression hearing. The State further suggests that the circuit court accepted the defendant's concession and so should the appellate courts.
¶ 54. I question the majority opinion's conclusion that under this interpretation of the record, the defendant has lost his right to appeal the issue. The majority opinion's conclusion seems to contravene precedent. Our case law is that a party who has conceded a legal question4 which is then the sole legal basis for the circuit court's ruling can argue that legal question on appeal.
¶ 55. The court has concluded that a concession with respect to a matter of law "is binding upon neither *620the parties nor upon any court. . . .Conclusions of law may not be reached by the process of judicial admissions. . . .'To be binding the admission must be one of fact, rather than a conclusion of law.'" Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 168, 178, 456 N.W.2d 788 (1990) (citation omitted) (emphasis added in Fletcher).5
¶ 56. On this record it is unclear whether this case presents a concession of law. Any concession by the defendant would be by implication; no concession about probable cause was expressed. It may be that the defendant's argument that the police could easily have obtained a search warrant implicitly conceded that the police had probable cause to search his car.6
*621¶ 57. In the lead opinion in the court of appeals Judge Sundby took yet another position on the issue of waiver and the right to appeal. I believe his position merits consideration. Judge Sundby understood the facts to be as follows: the defendant moved to suppress evidence on both general and specific grounds (but not specifically stating probable cause), including that a warrant was needed for the search and none authorized this particular search; the State put on evidence probative of probable cause at the suppression hearing; the defendant objected to some of the evidence relating to probable cause; and the circuit court ruled that there was probable cause.
¶ 58. The lead opinion concluded that under such circumstances there was no waiver by the defendant because the State had the burden of proving probable cause and the defendant had no obligation to raise or to contest the issue in order to preserve it for appeal. The reasoning of the lead opinion appears to be that because the search was without a warrant, as the circuit court held, it is per se unreasonable under the Fourth Amendment and the burden of proving that the search and subsequent seizure were constitutional is on the State. The defendant need do no more, urges the lead opinion, than make a colorable showing that the search is not supported by a warrant. The burden of proving probable cause then shifts to the State, according to Judge Sundby, without any further showing in order to give effect to the presumption against war-*622rantless searches. Caban, 202 Wis. 2d at 420-21 (citing State v. Pozo, 198 Wis. 2d 705, 710 n.2, 544 N.W.2d 228 (Ct. App. 1995)).
¶ 59. Because the court of appeals in effect exercised its discretion to review the merits of the defendant's claim of probable cause, it is not necessary to determine whether this case presents traditional circumstances of waiver and, if not, what legal rules control.
¶ 60. I conclude that this record does not lend itself to a decision by the court on the issues for which the court took the case. I would therefore dismiss the petition as improvidently granted.
¶ 61. For the reasons set forth, I dissent.
¶ 62. I am authorized to state that Justice Ann Walsh Bradley joins this opinion.
It is arguable that the State raised the issue of probable cause in the circuit court. The key, in any event, is that probable cause was the only dispositive legal issue on which the circuit court ruled.
The burden is on the State to prove that its officers complied with the Fourth Amendment when a defendant alleges otherwise. The question is what degree of specificity should the courts require of the defendant in asserting objections to the introduction of the evidence when the defendant cannot depose the State's witnesses.
This court has held that raising the issue of the Fourth Amendment in a petition for review in an automobile search case preserves for purposes of review any argument addressing the issue. State v. Weber, 164 Wis. 2d 788, 789-91, 476 N.W.2d 867 (1991).
The defendant does not contend that the automobile exception is inapplicable and the State does not contend that the automobile exception obviates the requirement that there be probable cause for an automobile search.
Whether a set of facts rises to the level of probable cause is a question of law. See, e.g., State v. Moats, 156 Wis. 2d 74, 84, 457 N.W.2d 299 (1990) (whether there is probable cause to support bindover is matter of law); State v. Tompkins, 144 Wis. 2d 116, 121-22, 423 N.W.2d 823 (1988) ("existence of probable cause and the propriety of the search conducted present questions of law").
The circuit court in Fletcher concluded that the defendant made a judicial admission that it was a state actor. The court of appeals found that the state action issue had been waived by virtue of this concession. Fletcher v. Eagle River Mem'l Hosp., Inc., 150 Wis. 2d 145, 153, 441 N.W.2d 297 (Ct. App. 1989).
In the supreme court the plaintiff argued that the defendant, by conceding a dispositive issue, had foregone the right to appeal that issue. Brief for plaintiff in Fletcher at 4-5. The supreme court did not discuss waiver or the defendant's right to appeal but ruled on the merits of the purportedly conceded issue. The court concluded that the defendant was not barred from arguing a position contrary to its concession on the issue of law.
On the other hand, one could read this argument as claiming that the police had the obligation to seek a search warrant under these circumstances and that the police could easily have sought one.
There may be instances in which an accused's concession puts the State on notice but at the same time effectively bars the State from putting forth evidence to support its position. If the State can show that it was likely prejudiced by such a conces*621sion it should be given the opportunity to put on additional evidence to support its position on the issue.
Although the State argues that had probable cause not been conceded by the defendant it would have been able to elicit more evidence of probable cause, the State does not seek an opportunity to put on additional evidence.