dissenting.
I dissent from the majority opinion, because I believe that the action taken by Officer Pert was authorized by ORS 506.550 and that the statute complies with Article I, section 9, of the Oregon Constitution and the Fourth Amendment.
The majority acknowledges that in State v. Westside Fish Co., 31 Or App 299, 570 P2d 401 (1977), we upheld a warrantless search and seizure of unlawfully possessed fish under the authority of a similar statute, ORS 506.620, but concludes that Westside Fish has no application here. The majority begins its explanation of that conclusion with a discussion of Fourth Amendment cases because, in its view, our decision in Westside Fish was dependent on United States v. Biswell, 406 US 311, 92 S Ct 1593, 32 L Ed 2d 87 (1972), and “the federal line of reasoning.”
The majority correctly sets out the criteria for determining if a warrantless inspection of a pervasively regulated business will be deemed constitutionally reasonable. The majority holds that the first two criteria under New York v. Burger, 482 US 691, 107 S Ct 2636, 96 L Ed 2d 601 (1987), are satisfied, that there is a significant public interest in protecting our important public resource and that a warrantless inspection program is necessary to carry out the regulatory scheme. It decides, however, that ORS 506.550 does not satisfy the last criteria, because “it does not even marginally *497implement a routine inspection program.” 103 Or App at 493. I disagree.
Under the third criterion in Burger, the regulatory statute must perform the two basic functions of a warrant: It must advise the owner of the premises that the search is made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. In analyzing whether the statute at issue in Burger that authorized warrantless inspections of automobile junkyards met this criteria, the Court concluded that it did, because:
“The statute informs the operator of a vehicle dismantling business that inspections will be made on a regular basis. Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. Section 415-a5 also sets forth the scope of the inspection and, accordingly, places the operator on notice as to how to comply with the statute. In addition, it notifies the operator as to who is authorized to conduct an inspection.” 482 US at 711. (Citations omitted.)
Similarly, here, persons participating in the commercial fishing industry are aware that inspections of their property may be conducted pursuant to the commercial fishing laws by state game officers, as well as other authorized agents of the Director of the Department of Fish and Wildlife. The scope of the inspection under both ORS 506.550 and ORS 506.620 is also sufficiently defined. The statutes and regulations relating to commercial fishing clearly advise persons involved in commercial fishing operations how to comply with those laws.
The majority concludes that, although ORS 506.620 satisfies the third criterion, ORS 506.550 does not, because the two statutes perform quite different functions:
“The statute at issue in this case, ORS 506.550, is part of a remedial program of enforcement of the criminal provisions of the commercial fishing laws, see ORS 506.506, while the statute at issue in Westside Fish was an implementing force to seek compliance with the commercial fishing regulations.” 103 Or App at 493-94.
However, that conclusion does not really describe any meaningful distinction between the two statutes. There is, in fact, *498no difference between “a remedial program of enforcement of the commercial fishing laws” and “an implementing force to seek compliance with the commercial fishing regulation,” because all violations of commercial fishing laws are crimes. ORS 506.991. Enforcing the criminal provisions of the commercial fishing laws and forcing compliance with commercial fishing regulations are the same thing. Under both, state game officers or other authorized agents of the Department of Fish and Wildlife may enter commercial fishing operations, look around to see if the commercial fishing laws are being complied with and issue a citation or make an arrest if they are not.
The majority finds a significant difference in the statutes, because ORS 506.620 authorizes officers to “enter and inspect” and ORS 506.550 authorizes them to “search and examine.” That is a distinction without a difference.1 The actions that may be taken under both statutes are essentially the same. The majority acknowledges that what an officer physically does under each statute may be the same but notes that, in the context of the federal cases, inspection has a particular significance.
“As we interpreted ORS 506.620 in Westside Fish, it provides for routine inspections without the need for cause to believe that a violation will be discovered. Interpreted in that way, the statute provides the proprietor with the requisite knowledge that named places and things related to his commercial fish business will be periodically inspected to insure compliance with the relevant regulations. By contrast, the authority to search in ORS 506.550, when the officer has ‘reason to believe’ that there is evidence of a violation of commercial fishing laws, is the antithesis of the type of regulatory inspection program described in Westside Fish, Biswell, New York v. Burger, supra, and Donovan v. Dewey, [452 US 594, 101 S Ct 2534, 69 L Ed 2d 262 (1981)].” 103 Or App at 493.
The problem with the majority’s conclusion is that it misreads ORS 506.550. That statute does not require that an officer have “reason to believe” that there is evidence of a *499violation of the commercial fishing laws before entering. Rather, the “reason to believe” requirement qualifies the last phrase in the statute. An officer must have “reason to believe” that a package, box or bundle held for storage or shipment contains evidence of a violation before he can examine it.2
The majority also distinguishes the two statutes on the basis that ORS 506.620 limits searches to premises used in the commercial enterprise of fish taking and processing and ORS 506.550 allows a search of any place where food fish may be kept, sold or secreted. Arguably, the language of ORS 506.550 could be read quite broadly to authorize a search of any place that theoretically could be used for hiding fish. However, we ought to read the language to authorize only the inspection of places where commercial food fish are ordinarily kept or sold. This reading of the statute is consistent with the purpose of the statute to ensure compliance with commercial fishing regulations and is consistent with the latter portion of the statute that limits the inspection of packages, boxes or bundles to those used for shipment or storage of food fish. Further, this construction of the statute is consistent with the principle that statutes should be given a narrowing construction to avoid concerns about constitutionality. Molodyh v. Truck Insurance Exchange, 304 Or 290, 299, 744 P2d 992 (1987).
I would hold that ORS 506.550 satisfies the criteria in Burger for a warrantless inspection and, therefore, complies with the Fourth Amendment. As with ORS 506.620, ORS 506.550 provides a person involved in the industry with notice that named places and things related to his commercial fish business will be periodically inspected to insure compliance with the relevant statutes.
I would hold also that ORS 506.550 complies with Article I, section 9, which protects the privacy interest that an individual has from particular forms of government scrutiny. State v. Campbell, 306 Or 157, 759 P2d 1040 (1988).
“A privacy interest, as that phrase is used in this court’s *500Article I, section 9, opinions, is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. * * *
“Government scrutiny aside, individual freedom from scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping.” 306 Or at 170.
Whether government conduct in a particular instance is an overly intrusive form of government scrutiny, and therefore a search, depends on the nature and purpose of the government’s conduct, as well as the nature of the individual’s privacy interest.
As discussed above, in State v. Westside Fish Co., supra, we found that there is a strong public interest in the protection of Oregon’s fish runs, which are a precious natural and economic resource. We also recognized that the commercial fishing industry is pervasively regulated and has been extensively regulated throughout this century. ORS 506.550 has not been amended since 1965, and the warrantless inspection authority, from which the present statute derives, has existed since 1921. Or Laws 1921, ch 105, § 26. As discussed above, persons involved in the commercial fishing industry must be aware of the law and, therefore, must have an expectation that their commercial fishing activities will be subject to government scrutiny.
In addition to the fact that government inspections are a common and expected occurrence in the commercial fishing industry, the authority to inspect is critical to the effectiveness of the regulatory scheme. As we recognized in State v. Westside Fish Co., supra, because the object of the regulations is of such transient and disposable nature, advance notice of inspection would likely make inspection ineffective. In adopting ORS 506.550, the legislature has balanced the need for this enforcement tool against the privacy interest of persons engaged in the industry by allowing war-rantless searches under limited circumstances. I do not think that the legislature’s judgment on this issue violates section 9.
Even if it were determined that ORS 506.550 does not authorize this search and seizure, there were probable cause *501and exigent circumstances to justify the action taken. The trial court held, and the majority agrees, that Pert had probable cause to believe that the package that he seized contained evidence of a crime.
I would hold that there were also exigent circumstances to justify the warrantless seizure.3 The trial court found exigent circumstances to justify Pert’s seizure of the package. It found that “[i]t is difficult for the officer to actually intercept the shipments as they are at the air terminal for only about 1 hour from receipt to shipment. Air freight employees will not hold the shipments until the officer gets there.” The trial court then concluded that, although Pert could lawfully seize the package, “it was incumbent upon the State to show why it could not get a warrant” before searching its contents.
I agree with the trial court’s determination that the seizure was justified. As the trial court concluded, it is difficult to intercept shipments, because they are at the airport only about one hour and the air freight employees will not hold the packages. In fact, Pert had missed stopping two shipments the year before. It is reasonable to infer that, if he had not seized the package, he would have lost all access to it.
After Pert lawfully seized the package, he could search its contents without a warrant, if he had probable cause to believe that it contained evidence of the crime. State v. Herbert, 302 Or 237, 243, 729 P2d 547 (1986); State v. Larsen, 84 Or App 403, 405-06, 734 P2d 362 (1987). I conclude that he did have probable cause. The label on the package announced that the package contained 44 pounds of sturgeon roe. On the basis of his training and experience, he knew that it was highly unlikely that that amount of roe could be obtained from legal *502size sturgeon. Therefore, because he had lawfully seized the package and had probable cause to believe that it contained evidence of a crime, his subsequent search of the package was lawful. State v. Herbert, supra, 302 Or at 243; State v. Larsen, supra, 84 Or App at 406.
Warren, J., joins in this dissent.In Westside Fish, we did not seem to believe that there was a difference between the terms. There, we characterized the action taken by the police under ORS 506.620, which authorizes entry and inspection, as a search: “[T]he search of defendant’s freezer and the seizure of his fish were lawful.” State v. Westside Fish Co., supra, 31 Or App at 303. (Emphasis supplied.)
The discretion of inspecting officers is actually more limited by ORS 506.550 than ORS 506.620. Under ORS 506.550, a container may not be examined unless the officer has reason to believe that it contains evidence of a violation. Under ORS 506.620, fishing gear and all property used in commercial fishing activities may be inspected without any belief that evidence of a violation is there.
Defendant insists that, even though Pert was not aware that there would be a package at the airport when he went there for a periodic inspection, he should have obtained a warrant before going, because he had a continued interest in intercepting a shipment of roe from defendant’s company. Such a requirement would be unreasonable. Pert had been watching for a shipment of roe from defendant’s company since he noted its extensive shipments in 1986. Although he had periodically checked shipments at the airport, he had been unable to intercept any in 1987. Under defendant’s theory, Pert should have obtained a warrant every time that he went to the airport. However, it is doubtful whether under those circumstances he could have obtained one, because he usually would not have had sufficient information to describe with particularity the item to be searched as required by ORS 133.545(4).