dissenting.
I dissent because I believe the result in this case is controlled by the holdings in State v. Dunlap, 395 A.2d 821 (Me.1978), accord Niro v. United States, 388 F.2d 535 (1st Cir.1968). I find that the clear failure of the State to carry its evidentiary burden of justifying the warrantless search is fatal in this case.
In Dunlap, we articulated certain basic “threshold” rules, binding on this Court, for addressing a State’s appeal from a decision of the Superior Court finding a warrantless search unjustified. We stated: “searches conducted without a warrant are per se unreasonable, subject only to a few carefully drawn and much guarded exceptions.... Third, the burden is on the State, by a preponderance of the evidence, to establish the existence of such an exception.” Dunlap, 395 A.2d at 824 (citations omitted). “Exigent circumstances” is an exception as to which the State has the burden of proof. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); State v. Cress, 344 A.2d 57 (Me.1975); State v. Walker, 341 A.2d 700 (Me.975); State v. Stone, 294 A.2d 683 (Me.), application for bail denied, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972); State v. Chapman, 250 A.2d 203 (Me.1969).
Our own definition of such an exigency is the clearest definition found in the decisional literature of any jurisdiction:
*812the warrant requirement may be constitutionally dispensed with if there are exigent circumstances which demand immediate search and seizure, or both, to prevent likelihood of removal, concealment, destruction or other loss of the articles lawfully subject to seizure, provided, of course, that the search and seizure is limited as to the method, place and time to be commensurate with such exigency.
Stone, 294 A.2d at 691 (emphasis added). Further, Dunlap establishes that a State’s claim of exigent circumstances justifying a warrantless search where probable cause already exists
must be evaluated in terms of the time when the law enforcement authorities first had an opportunity to obtain a search warrant, not merely from the time the emergency arose, and the authorities must come forward with a satisfactory explanation of their failure to obtain a warrant.... In most cases applying the exigent circumstances doctrine[,] the police have neither the time to obtain a warrant nor the opportunity to avoid the ensuing emergency.
Dunlap, 395 A.2d at 824 (emphasis added) (citations omitted).
As I understand, Dunlap held that an exigency justifying a warrantless search cannot be one created by the law enforcement authorities’ unreasonable delay. Dunlap, 395 A.2d at 825. The keystone of that rule is the observation by Chief Justice Aidrich in Niro, 388 F.2d at 540, that “[hjaste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle.” (emphasis added). See Dunlap, 395 A.2d at 825. If we may take the Court of Appeals at its word in United States v. Ferrara, 539 F.2d 799 (1st Cir.1976), rather than artfully reinterpreting the case as the majority does, this distinction between Ferrara and Niro is simple and straightforward: in the former, the agents were never “in a position where they should have realized that a warrant ‘could readily have been had.’ ” Ferrara, 539 F.2d at 802 (quoting Niro, 388 F.2d at 539). In Niro, the Court specifically stated: “[Wje hold that the government cannot rely upon an expected arrest to seize stolen goods, the presence of which it long had probable cause to know of, simply to avoid the inconvenience of obtaining a search warrant.” Niro, 388 F.2d at 539-40. The Court made it plain that “failure to obtain a warrant when one could readily have been had ... will be fatal unless there are at least some countervailing factors.” Niro, 388 F.2d at 539.
The distinction articulated in Ferrara does not undermine the holding of Niro, as the majority suggests. Rather, that distinction represents the application of the Niro holding to a particular set of facts. The foundational premise of the Niro holding, that a warrant could “readily be had,” was not present under the facts in Ferrara. The applicable legal principles are easily discerned. If the officers could readily have obtained a warrant under the circumstances in advance of the actual seizure, a showing of legitimate exigency cannot be made in the absence of proof of some “countervailing factors” justifying the delay in attempting to obtain the warrant. The burden is on the State in such a case to make a showing of the existence of such countervailing factors in order to support a valid determination of exigency.
We review this suppression order on an Agreed Statement of Facts.1 I read the *814Agreed Statement in vain to find a single factual assertion that addresses an explanation for the officers’ delay, after 9:30 a.m. on the day of the search, in seeking a warrant to search the vehicle in question upon its return to the Houlton area later in the day.
In the absence of any explanation of that delay, it is impossible for either the trial court or this Court to judge the reasonableness of the delay which caused the exigency when the vehicle returned. It is crystal clear that the State not only failed, but did not even attempt, in this case, to make any showing of “countervailing factors” that justify the delay of five hours and twenty minutes referred to in the Agreed Statement. In point of fact, the total period of delay on the basis of the times set out in the Agreed Statement is nearly seven hours. The determinative question, therefore, is whether the officers should reasonably have known that a warrant could readily be had on the basis of what was known to them at 9:30 a.m. on the day of the search. Niro, 388 F.2d at 539.
There is no doubt that if Deputy McHat-ten had appeared before a magistrate at any time after 9:31 a.m. on the morning of the search and showed that magistrate, by affidavit, the facts Deputy McHatten then knew, he would have made a sufficient showing of probable cause to obtain a warrant to search the car on its return. This conclusion is more graphically made if we assume, arguendo, that Deputy McHatten followed that course and, in fact, obtained a search warrant, executed on the vehicle’s return. If the Defendant’s attack was now on the sufficiency of the showing of probable cause for the issuance of the warrant, I cannot, for a single moment, doubt that this Court would sustain, and validly so, the issuance of the warrant. If that were the postured issue, the majority opinion would not say that:
probable cause was not self-evident. .. At 9:30 a.m. on the day of the search the deputies were armed with only three bits of information: 1) the informant’s merely predictive statement that defendant was going to go to Bangor for drugs; 2) the fact that defendant went home immediately after work, as the informant had predicted; and 3) the fact that defendant commenced a trip south, in the general direction of Bangor. The probable cause, if any, existing at that point was weak indeed... That defendant went home immediately after work proves nothing; that is not an unusual occurrence. That the following morning defendant traveled toward a point south of Limestone is an almost equally slender thread upon which to hang a search warrant request; the better part of Maine, and indeed of the entire country, lies south of Limestone; defendant might have been going to any number of places.
457 A.2d at 810 (emphasis added). Rather, I would visualize that this Court’s opinion evaluating the evidence of probable cause in that case would be likely to read as follows:
The deputy was called by a known informant, who had on four prior occasions provided to the deputy information which proved to be reliable. See Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). The informant told the deputy that the defendant had stated to the informant that after getting off work at 10:30 p.m., he would go home to get some rest and that in the morning he would be leaving to go to Bangor to procure some marijuana. That information did not result from any conclusion of the informant produced by the application of his own mental processes to indirect or circumstantial evidence. Rather, the information was a recitation of the defendant’s own direct declaration of his intended course of action and purpose, relayed through an informant of proven reliability. As such, it was properly to be given great weight as accurately reflecting what defendant would likely do on the morrow.
*815In addition to stating his purpose, the defendant specified his intended «itinerary and timetable. The deputy confirmed by his own personal observation that the defendant’s movements over the next nine hours and forty-five minutes were strictly in accordance with that schedule and itinerary. When last seen in Monticello, the defendant was headed south in the direction of the location to which he had declared he would go to procure the contraband.
The defendant asserts that the fact that he was observed going home after work proves nothing because that is not an unusual occurrence. The officer was not required to believe that defendant inexorably went home at 10:30 in the evening after finishing his daily labor. The fact that he did on this occasion did prove something; he was, in fact, conducting himself in accord with his own avowed program of action that would eventuate in his acquisition of the contraband. The deputy and the magistrate were permitted, for two reasons, to infer from the defendant’s southerly route of travel that he was going to Bangor for his avowed purpose; 1) that is the direction in which Bangor lay and 2) that is where he had, himself, stated that he was going. “At that moment, if not well before, the totality of the facts and circumstances within the officer’s knowledge ripened without the slightest doubt into probable cause” to issue a warrant to search the vehicle on its return. State v. Smith, 379 A.2d 722, 725 (Me.1977).
If the issue of probable cause were so postured in this case and so resolved, I have no doubt that the opinion of the Court would be unanimous. If that is true, to turn the intellectual tables on the defendant is an exercise in judicial unfairness. The determination that the officer’s knowledge as of 9:30 in the morning was insufficient to establish probable cause cannot be supported by reason and is completely destructive of the most rudimentary tenets of analytical consistency. No other Maine case can be found in which so much proof is found to constitute so little cause for rational conclusion.
If, as I believe is the case, probable cause existed at 9:30 a.m., the burden was on the State to show proof of “countervailing factors” justifying the seven hour delay during which no effort was made to either obtain a warrant or to “diligently seek further proof”2 as to what defendant was about. *816457 A.2d 810. The majority’s attempt to justify the delay for the latter reason is simply without support in this record. This record does not reflect that the deputies were involved in any effort to ferret out further evidence to establish either probable cause or the guilt of the defendant. They simply waited for the car to return from Bangor, where they well knew that it had gone, comfortable in the knowledge that when it did appear they would, without fail, stop it and search it. When it returned, they would have stopped and searched it, with or without the pretext of “evasive” driving, and the officers would have had probable cause to stop the car, on a showing of exigency. Likewise, they could have obviated the need to make such a showing of exigency by the simple expedient of obtaining, during that seven hour period, a search warrant, which they could most certainly have secured and which would, with equal certainty, have been legally issued.
The United States Supreme Court continues to stress the desirability of officers seeking and obtaining a search warrant when they may reasonably be expected to do so. See, e.g., Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (fact that agents “did no more here than they might properly have done with prior judicial sanction” does not validate conduct). Here, the officers had reliable knowledge of sufficient probative force to justify the issuance of a warrant. The record suggests that they had nothing else to,do until the vehicle returned from Bangor; according to the record, the officers did nothing else except sit and wait. That is precisely the result that Dunlap, Niro, and even Ferrara, relied on by the majority, proscribe. The purpose of the rule articulated in those cases is to secure a desirable and constitutionally mandated re-suit; “[i]f no penalty will ever attach to a failure to seek a warrant, as distinguished from the officers making their own, correct, determination of probable cause, warrants will never be sought, as least when the search is expected to be accompanied by an arrest.” Niro, 388 F.2d at 539.
I believe this ease is well within the principle stated by the Massachusetts Supreme Judicial Court: “We hold here only that where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them.” Commonwealth v. Forde, 367 Mass. 798, 803, 329 N.E.2d 717, 721 (1975). As we have, ourselves, stated the gist of the rule, “[i]n sum, an exigency that will justify a warrantless search cannot be one which was created by unreasonable delay on the part of the law enforcement authorities.” Dunlap, 395 A.2d at 825.
. The substance of the Agreed Statement of Facts is as follows:
1. On Friday, November 27, 1979, at approximately 8:00 o’clock p.m. Deputy Carl McHatten of the Aroostook County Sheriff’s Department received a phone call from a confidential informant.
2. The informant identified himself and told Deputy McHatten that while working with Michael Patten at Loring Air Force Base the Defendant stated that he would be getting done work at about 10:30 p.m., that he would then go home to get some rest and that in the morning he would be leaving to go to Bangor to procure marijuana.
*8133. The confidential informant has on at least four (4) prior occasions provided information to Deputy McHatten which proved to be reliable.
4. Deputy McHatten observed Michael Patten arrive at his residence at 22 School Street in Limestone, Maine, at approximately 10:35 p.m. on November 27, 1979, in the previously described Dodge automobile.
5. McHatten continued surveilance [sic] of the Patten residence until 12:00 midnight at which time Mr. Patten apparently had not left the residence.
6. At 6:00 a.m., November 28, 1979, Deputy McHatten resumed surveillance of Defendant’s residence and at 8:15 a.m. observed the Defendant and another person get into the Defendant’s car and leave Limestone headed south on Route 165.
7. Deputy McHatten then contacted the Aroostook County Sheriffs Department and asked that someone watch for the Patten vehicle at some point south of Limestone.
8. At approximately 9:30 a.m. the Defendant’s car was observed in Monticello by Deputy Keith Wheeler headed south on Route 1.
9. Deputy McHatten then contacted the Aroostook County Sheriffs Department and made arrangements with Sargetn [sic] Edgar Wheeler to have surveilance [sic] set up in the Houlton area.
10. Deputy McHatten advised Sargent [sic] Wheeler that if the Defendant did go to the Bangor area that McHatten expected that he would be returning to the Houlton area between 2:00 p.m. and 3:00 p.m. that day.
11. At approximately 1:00 p.m. that day McHatten and Chief Johndro of the Limestone Police Department left Limestone to go to the Houlton area to assist on surveilance [sic],
12. At approximately 2:50 p.m. Deputy Keith Wheeler again observed the Defendant’s car proceeding north on U.S. Route 1 in Monticello.
13. The distance between Bangor and Monticello is approximately 125 miles one way and the round trip from Monticello to Bangor and back to Monticello could be accomplished in approximately five (5) hours.
14. Approximately five (5) hours and twenty (20) minutes had lapsed between the time Deputy Keith Wheeler first observed the Patten vehicle heading south on U.S. Route 1 in Monticello and the time he observed the Patten vehicle proceeding north on U.S. Route 1 in Monticello.
15. When advised by Deputy Keith Wheeler that he had spotted the Patten vehicle in Monticello, Deputy McHatten requested that Deputy Wheeler attempt to keep the vehicle in view and Deputy McHatten and Chief Johndro proceeded north from Houl-ton.
16. At approximately 3:00 p.m. Deputy McHatten was advised by Deputy Keith Wheeler that the Patten vehicle had pulled into the Smith Truck Stop in Blaine and then back on to U.S. Route 1 without stopping. At that point Deputy Keith Wheeler felt that the occupants of the Patten vehicle may have observed him following them and that Patten may attempt to lose him.
17. At that point Deputy McHatten advised Deputy Wheeler to obtain assistance from Deputy Hugh Turner in Mars Hill in assisting Wheeler in stopping the vehicle and also advised Wheeler that he should stop and hold the Patten vehicle until McHatten arrived.
18. In Mars Hill the Patten vehicle turned off U.S. Route 1 and was driven to an area behind the Exxon station in Mars Hill, an area obscured from the view of persons travelling along U.S. Route 1 and an area where commerce does not take place under normal circumstances.
19. At approximately 3:05 p.m., Deputy Wheeler and Deputy Turner drove along side the Patten vehicle for the purpose of detaining the vehicle as instructed by McHatten.
20. Deputy Wheeler and Deputy Turner approached file Defendant’s vehicle and determined that Michael Patten was in fact the operator of the vehicle and that Michael Bell of Limestone was a passenger in the previously described Dodge vehicle.
21. At approximately 3:08 p.m., Deputy McHatten and Chief Johndro arrived at the scene.
22. Deputy McHatten showed Michael Patten identification and advised Patten that there was reason to believe that Patten had drugs in his vehicle.
23. McHatten asked Patten if he could search Patten’s vehicle and Patten refused.
24. McHatten then advised Patten that due to the circumstances McHatten had reason to search the car and intended to do so.
25. McHatten then proceeded to search the Patten vehicle. McHatten observed in the back seat area of the right side of the car a jacket partically [sic] covering a brown paper bag. Deputy Turner removed the jacket and opened the brown paper bag.
26. McHatten looked inside the brown paper bag and observed a plastic bag filled with plant material packaged in several smaller plastic bags, which material McHatten believed to be marijuana.
27. McHatten look [sic] possession of the brown paper bag and its contents and the trunk of the Patten vehicle was searched by Deputy Keith Wheeler and Deputy John York.
28. McHatten and Chief Johndro then took Michael Patten to the Mars Hill Sheriffs Department office where he was advised of his rights and formally advised that he was under arrest.
. The majority attempts to rely on a finding by the Superior Court Justice that the officers certainly did not have probable cause at 9:30 a.m. and were justified in seeking further evidence to support a showing of probable cause. That reliance is misplaced because (1) no such “finding” was made and (2) there is no evidence to support any finding, if made, as to why the officers delayed in seeking a search warrant or what they did, if anything, while waiting for the car to return from Bangor. The trial justice simply observed:
It is possible that probable cause existed at the time police officers noticed the defendant driving south on Rt. 1 in Monticello at 9:30 a.m. on November 28, 1979. The State was entitled to gather further evidence to better substantiate its case on probable cause before seeking a search warrant. Clearly, it had a much stronger case of probable cause when the police officers observed defendant returning north at about 2:50 in Monticello.
(Emphasis added.)
The existence of probable cause is a matter of law; the “clear error” standard does not properly apply on appellate review of a determination of whether probable cause existed. To interpret the first sentence of the Justice’s observation as a determination that probable cause definitely did not exist (a manifestly questionable interpretation), is simply legally erroneous. The immediately following determination that the State was “entitled” to delay for the gathering of further evidence is, therefore, also legally in error. Niro, 388 F.2d at 538; Dunlap, 395 A.2d at 825.
The court makes no specific factual finding that either (1) the officers delayed seeking a warrant in order to gather further evidence or (2) that they, in fact, sought any further evidence during the period of the delay. If the justice had done so, such finding would have been clearly erroneous. The record does not contain a scintilla of evidence showing, or from which any inference can be made as to (1) what the officers did, if anything, during the period of delay, (2) why the delay occurred, or (3) that they had any concern whatever about their ability to make a showing of probable cause *816between 9:30 a.m. and 2:50 p.m. on the day of the search.