(concurring in part and dissenting in part) :
I concur in the conclusion of the Court upholding the appellant’s conviction in Count II, possession of the controlled substance LSD, although I would reach the search and seizure issue presented with respect to introduction of the exhibits connected with that count and hold that the exhibits seized from he kitchen table were properly seized by the police because they were within the plain view of the arresting officers who had to enter the kitchen to make an arrest. State v. Pontier, 95 Idaho 707, 518 P.2d 969 (1974).
I cannot, however, concur in the Court’s result affirming the judgment of conviction in Count I, for delivery of the controlled substance phencyclidine for three reasons. First, the only evidence upon which conviction for the phencyclidine count could be based was improperly admitted; secondly, the prosecution did not prove that Collinsworth delivered the substance he had been charged with delivering; and third, the prosecution failed to prove that the substance which Collinsworth delivered to the undercover officer or the substance found in the green bank bag was a controlled substance as defined by I.C. § 37-2709.
First, the evidentiary issues. The state introduced into evidence two exhibits which the state’s expert witness, Richard Groff, a forensic chemist employed by the State Department of Health, testified contained phencyclidine hydrochloride. These were exhibit 2, a green bank bag containing baggies of powder containing phencyclidine hydrochloride, which was seized from a cupboard or closet in Collinsworth’s residence, and exhibit 5, a baggie containing a powder which contained phencyclidine hydrochloride and which the state contends Collinsworth sold to the undercover officer J. C. Pruett.
The majority point out that, “Although the record and the exhibits suggest a sharp conflict as to the legality of the seizure of exhibit 2, trial counsel did not move to suppress the evidence; rather, trial counsel objected to the introduction of the evidence at trial.” Ante at p. 265, (footnote omitted). The majority dispose of Collinsworth’s argument that exhibit 2 was improperly admitted, even though the evidence presented a question of the legality of the seizure of the exhibits, by stating:
“Trial counsel presented no reason as to why such a motion could not have been made prior to trial. A review of the exhibits and the affidavit for a search warrant without reference to the testi*916mony at trial, suggests factual conflicts which should have been apparent to counsel prior to trial and which should have been resolved by a hearing on a motion to suppress, not by a motion at trial. Thus, we conclude that the trial judge did not abuse his discretion when he denied the motion to suppress.” Ante at p. 266.
I cannot agree with these statements, nor has the majority pointed out what these conflicts are. Counsel for one of Collinsworth’s co-defendants made the following explanation for failing to make a motion to suppress prior to trial:
“Your Honor, at this time I would move the Court to suppress No. 1 through 4 on the ground and for the reason that evidence developed during the course of this trial comes as a surprise to counsel and that no motion to suppress could have been anticipated on the grounds of the inaccuracies stated in the affidavit in support of the search warrant. ... I would move the Court at this time to suppress that evidence on the testimony that has been given and admissions by Officer Pruett that the affidavit in support of the search warrant was not accurate from what actually took place and also based upon the evidence that was given as to the way in which the entry was made in violation of Idaho statutes requiring that an officer not only knock but announce his presence and the purpose of his entry.” (Rptr. Tr., pp. 150-151).
Trial counsel stated that evidence developed during the course of the trial came as a surprise to them and that they could not have earlier made a motion to suppress because they had first become aware of possible inaccuracies in the affidavit in support of the search warrant only after the trial began. Trial counsel very definitely presented a reason why such a motion could not have been made prior to trial.
The majority also say that a “review of the exhibits and the affidavit for a search warrant . . . suggests factual conflicts which should have been apparent to counsel prior to trial and which should have been resolved by a hearing on a motion to suppress, not by a motion at trial.” This is not true with regard to exhibit 2. The affidavit for a search warrant, defendants’ exhibit B, shows that Officer Pruett appeared before the magistrate at 12:55 a. m. on the morning of December 2, 1971, to obtain the search warrant, while the time listed on exhibit 2 itself shows it being logged in at 1:15 a. m. that morning. The times listed on exhibits 1, 3 and 4 show them logged in at 12:10 a. m. Thus, exhibit 2 and the affidavit for a search warrant do not suggest that exhibit 2 was seized without a warrant, although the times listed on exhibits 1, 3 and 4 show that they were seized without a warrant. However, Officer John L. Lyon of the Boise City Police Department Vice and Narcotics Squad gave the following testimony with regard to the search of the house and the seizure of items within it:
“Q. Did you participate in the search of the residence on that evening?
“A. Yes, I did.
“Q. What did you recover or observe recovered ?
“A. I observed the items on the table and I observed Officer Marcum take these into evidence. I observed Detective Agent McCoy from the Attorney General’s Office secure a bowl, kind of a wood bowl I believe with a plunger deal in it with some substance inside. I also observed Agent J. C. Pruett find a bank bag — a green bank bag which had substance in it in individual packages.
“Q. What did you do with these articles?
“A. I took these articles from the people who found them, they indicated by hollering they had found them and I would go to them and take the items, took it down to Detective *917Marcum and he would take it into evidence.” (Rptr. Tr., pp. 81-82).
This testimony indicates that the bank bag, which was contained in an upstairs cupboard, was seized at the same time as the other evidence, long before Pruett obtained a search warrant. This testimony conflicts with the testimony of Officer Pruett, who testified that exhibit 2 was not seized until he had returned from the magistrate’s home with a search warrant. Trial counsel was surprised by this development and from examination of the exhibits could not have anticipated that there would be evidence to indicate that the bank bag was not seized pursuant to the search warrant. Neither the affidavit in support of the search warrant nor the notations on the exhibit itself gave any indication that exhibit 2 was not seized pursuant to the warrant; therefore, when testimony at trial indicated that there was some' question concerning whether the exhibit was seized pursuant to á • warrant, the trial judge abused his discretion by ruling that the motion to suppress had not been timely made and that the defendant had waived his rights to suppress the evidence. Given these circumstances, the trial court should have considered whether there was cause shown to grant relief from the waiver rather than denying the motion on grounds of untimeliness.
Collinsworth also argues that there is a gap in the evidentiary chain and that it was never proven that the item he sold to undercover Officer Pruett was the same item introduced as the state’s exhibit 5. I believe there are two gaps in the evidentiary chain and that the state has failed to show that the item Collinsworth sold to Officer Pruett was the same item introduced as state’s exhibit 5. First, the evidence is clear that the item Pruett purchased from Collinsworth was turned over to Officer Tom. L. Taylor. Taylor gave the following testimony concerning material he received from Officer Pruett:
“Q. What did you receive from Officer Pruett?
“A. The first item I received from Officer Pruett was I believe a bag of marijuana.
“Q. Did you receive anything else from Officer Pruett at this time?
“A. The second item I received was a small bag of a pinkish type substance that had been purchased out of a residence and was sold to him as — presented—
“Q. What did you do with this package after receiving it ?
“A. I placed it into an Idaho Bureau of Narcotics envelope, sealed the same for deliverance to the safe in our office.
“Q. Did you have occasion to see that article again?
“A. No, I have not.” (Rptr. Tr., pp. 70-71).
While he did indicate that he had prepared the envelope for delivery to the safe, Officer Taylor never testified that he took the item Officer Pruett had given him and returned it to the safe in the police department. On the contrary, he testified that he did not have occasion to see that article again. It is unclear what happened to the item; thus, this is the first break in the evidentiary chain. But, even if the item was taken to the safe, there is another gap in the chain.
The second gap occurs after Officer Taylor took what was purportedly the item Collinsworth had sold Pruett from the office safe to the state laboratory for testing. There was no testimony given at trial which showed that the item another officer, Robert Gholson, retrieved from the state laboratory, and which the evidence at trial indicates was the same item that was introduced as state’s exhibit 5, was in fact the same item that Officer Taylor had taken to the laboratory. The majority says that a laboratory report, state’s exhibit 6, provides the missing link. It is apparently the majority’s contention that the laboratory report shows that the item Officer *918Gholson retrieved from the laboratory was the same item that Pruett had given to Taylor. The laboratory report does not supply this missing link. The laboratory report contains a statement by the state’s chemist that he analyzed the contents of an evidence envelope which contained the following description:
“On December 6, 1971 at 4:00 p. m., Detective Tom Taylor of Boise City-County Vice and Narcotic Squad delivered to this laboratory a sealed, standard Department of Health evidence envelope marked, ‘Case No. 113-696 City Boise Date 12-1-71 Time 11:45 PM Agency Requesting Analysis City County Vice & Intelligence Defendant(s) 1: Orion Collingsworth 2: Thomas E. King Address 1032 Floral St Boise 2 : 207 N. 17th # 2 Boise Charge Poss of Control Substance held for delivery (T.H.C.) Arresting Officers Taylor, Pruett, Marcum, Thompson, Heaton, McCoy Lyons Evidence, where found Sold to Agent JC Witnessed by Taylor, Marcum, McCoy, Lyons, Heaton, Thompson Evidence itemised 1 Plastic Baggie cont white powder Substance represented to be T. H.C. (Synthetic Grass).” (State’s Exhibit 6).
But when Officer Taylor was asked what was written on the envelope in which he had placed the item that Pruett had given him, he gave the following testimony:
“The case number would have been written on the envelope, the name Orian Collinsworth was on the envelope, the date 12-1 of ’72, the time was 11:36 PM that I received the envelope and the address, 1032 Floral Lane, Boise, Idaho, the charge sale of narcotics, the arresting officers were myself, Officer McCoy and Officer J. C. Pruett.” (Rptr. Tr., p. 72).
Taylor’s testimony concerning what was written on the envelope contrasts with the description of the envelope contained in the laboratory report: the times differ and the arresting officers differ. Thus, this laboratory report cannot be the missing link tying the item Pruett gave Taylor and the item Gholson retrieved from the state laboratory. Therefore, the state failed to establish a chain of evidence linking exhibit 5 with Orian Collinsworth and a conviction based upon this exhibit cannot be sustained. I believe that exhibit 5 was inadmissible.
The only other evidence upon which the conviction in Count I may be sustained is that pertaining to exhibit 2. Assuming arguendo that exhibit 2, the bank bag containing baggies, is in fact admissible, the question becomes whether the conviction can be sustained upon the chemist’s testimony that these baggies contained a controlled substance. I think not. Collinsworth was not charged with possession of the controlled substance phencyclidine; he was charged with delivery of the controlled substance phencyclidine. If he possessed baggies containing a controlled substance, that is not proof that the baggie he delivered contained a controlled substance. Indeed, the state’s expert witness, in discussing why he had mixed the contents of three of the nine baggies contained in the bank bag to analyze the contents of the baggies, gave the following explanation for this procedure:
“[T]hese things are clandestine because sometimes one baggie will be essentially zero and the other one will have twice the amount it is supposed to . . . .” (Rptr. Tr., p.211).
Thus, the state’s own-witness testified that it is not uncommon for one baggie among many to contain “essentially zero,” i. e., none of a controlled substance, while another will contain twice the amount it is supposed to. Thus, if the bank bag contained baggies which contained the controlled substance, the testimony of the state’s own expert witness shows that this is no guarantee that the baggie delivered to Officer Pruett also contained the controlled substance. Because the charge brought against Collinsworth was delivery of the controlled substance, it was an essential element of the state’s case to prove *919that the baggie Collinsworth delivered to Pruett contained the controlled substance. In light of the testimony of the state’s expert witness that the fact that one baggie in a batch containing a controlled substance is no guarantee that another also does, the burden of proof that the baggie delivered contained a controlled substance cannot be sustained by evidence that the other baggies which were not delivered contained a controlled substance, if indeed they did contain a controlled substance.
Even if these evidentiary matters are ignored and it is assumed for the sake of discussion for the remainder of this dissent that exhibits 2 and 5 were properly admitted, that does not mean that the state proved its case. There are two reasons for this: first, Collinsworth was charged with delivery of the controlled substance phencyclidine, but the testimony of the state’s expert witness indicated that he delivered the substance phencyclidine hydrochloride. There is a material variance between the charge and the evidence, and therefore no conviction can be sustained on that count. People v. Williams, 27 Cal.2d 220, 163 P.2d 692 (1945); see State v. Love, 76 Idaho 378, 283 P.2d 925 (1955). See also State v. Bollander, 110 Ariz. 84, 515 P.2d 329 (1973).
However, even assuming for pleading purposes that charging a defendant with delivery of the controlled substance phencyclidine and proving the delivery of a different substance — phencyclidine hydrochloride — is not a material variance, the state has nevertheless failed to prove that phensyclidine hydrochloride is a controlled substance.
First, the state’s expert witness never testified that phencyclidine was present in the substances he analyzed. He always referred to the substance he found as phencyclidine hydrochloride. There was no basis upon which the jury could conclude that Collinsworth delivered phencyclidine when the state’s expert witness testified that he found phencyclidine hydrochloride in the state’s exhibits; the jury must consider phencyclidine and phencyclidine hydrochloride to be distinct substances so long as they are distinctly named, and thus there was no evidence introduced upon which a conviction for delivery of the controlled substance phencyclidine could be sustained.
Even if it is assumed that Collinsworth was charged with delivery of the substance phencyclidine hydrochloride, the state never proved that phencyclidine hydrochloride was a controlled substance. The Uniform Controlled Substances Act explicitly declares phencyclidine to be a controlled substance ; it nowhere explicitly refers to phencyclidine hydrochloride. However, the Act does provide as follows:
“37-2709. SCHEDULE III. — (a) The controlled substances listed in this section are included in schedule III.
“(c) Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system;
“(7) Phencyclidine;
The majority says that phencyclidine hydrochloride is a controlled substance because (1) “[a] 11 the statute requires is that the state prove that Collinsworth delivered a substance which contains a drug which the legislature or the Board of Pharmacy has determined to be a substance ‘having a potential for abuse associated with a depressant effect on the central nervous sytem,’” and that “[t]he evidence indicates that Collinsworth delivered phencyclidine hydrochloride and that phencyclidine hydrochloride is a substance containing phencyclidine.” There is no evidence to support these assumptions.
With regard to the latter, the state need not merely prove that a substance contains phencyclidine for that substance to have *920been legislatively determined to be a controlled substance. I.C. § 37-2709(c) requires the state to prove that a substance containing a § 37-2709(c) controlled substance such as phencyclidine must be a “material, compound, mixture, or preparation” of the substance listed in that section. “Material, compound, mixture, or preparation” are technical, chemical terms and the fact that the substance may contain another substance does not mean that the former is a “material, compound, mixture, or preparation” of the latter. For example, concrete contains water, but I very much doubt that concrete would be described as a “material, compound, mixture, or preparation” of water. The state’s expert witness never testified that phencyclidine hydrochloride was a “material, compound, mixture, or preparation” of phencyclidine, and there is no basis upon which the jury could have so concluded. And there is absolutely no evidence to support the majority’s conclusion “that phencyclidine hydrochloride is a substance containing phencyclidine.”
Finally, assuming that there had been expert testimony that phencyclidine hydrochloride is a material, compound, mixture or preparation of phencyclidine, I do not believe that merely because a substance is a “material, compound, mixture, or preparation” of a schedule III controlled substance that such a compound itself is necessarily a schedule III controlled substance. In such a case the state must prove that the material, compound, mixture or preparation of the schedule III controlled substance has a “potential for abuse associated with a depressant effect on the central nervous system” in order to show that the compound is itself a schedule III controlled substance. The fact that a substance is harmful does not necessarily mean that all of- its compounds are harmful, e. g., the harmful gas chlorine when combined with sodium becomes the relatively harmless compound of table salt. Thus, it is by no means apparent that phencyclidine hydrochloric is a substance having a potential for abuse merely because phencyclidine, which the majority assumes is one of its components, has been determined to have a potential for abuse. Accordingly, proof of such “potential for abuse” is necessary in order to establish that a “material, compound, mixture, or preparation” of any substance listed in I.C. § 37-2709(c) is a controlled substance included within schedule III. The critical language of § 37-2709 which leads to this conclusion follows:
“37-2709. SCHEDULE III. — (a) The controlled substances listed in this section are included in schedule III.
“(c) Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system: . . . ” (Emphasis supplied).
The phrase “having a potential for abuse associated with a depressant effect on the central nervous system” would appear to refer to and modify the words “material, compound, mixture, or preparation” rather than the word “substances” since the substances in question have already been legislatively determined to be schedule III controlled substances, and subsection (c) only concerns itself with whether or not the mixture or compounding of the controlled substance with other matters renders the mixture or compound to also be a controlled substance.1
*921I therefore conclude that where the Pharmacy Board has not previously listed phencyclidine hydrochloride in schedule III, a proper construction of I.C. § 37-2709(c) requires the state to prove that phencyclidine hydrochloride is a “material, compound, mixture, or preparation” of phencyclidine “having a potential for abuse associated with a depressant effect on the central nervous system” in order to show that phencyclidine hydrochloride is a controlled substance under schedule III.2 Without the introduction of expert testimony on the matter of whether phencyclidine hydrochloride may have a depressant effect on the central nervous system and, if so, whether there is a potential for abuse associated with that effect, judges and jurors, who are laymen in the fields of chemistry and pharmacy, have no basis upon which to determine whether phencyclidine hydrochloride is a schedule III drug.3 In my opinion, a conviction not based on such expert testimony should be set aside.
Accordingly, because the state introduced no evidence upon which a conviction for delivery of a controlled substance in Count I could be upheld, and because even if the improperly admitted exhibits are considered, the state has failed to prove that the exhibits contained the substance that Collinsworth was accused of delivering, or if they did, that this substance was a controlled substance, I would set aside the conviction for Count I.
. This .analysis of subsection (c) is supported by I.C. § 37-2709 (f), which gives the State Board of Pharmacy authority to remove any compound, mixture or preparation of any of the substances determined by the legislature to be schedule III controlled substances in I.C. § 37-2709 (c) “if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.” (Emphasis supplied). *921Subsection (f) recognizes that compounding or mixing of controlled substances described in I.C. § 37-2709 (c) with other ingredients may “vitiate the potential for abuse of the substances” and that therefore the Board may by rule except any such compound or mixture from schedule III. Thus, even though the legislature has specifically provided in I.C. § 37-2709 (c) that compounds of phencyclidine having a potential for abuse are controlled substances, it has also provided in I.C. § 37-2709 (f) that the Board may remove any compound or mixture of phencyclidine from the schedule if it determines that the compounding has “vitiate [d] the potential for abuse of [phencyclidine].”' Also, I.C. § 37-2702 authorizes the Board to add substances to the schedules under procedures established in title 67, chapter 52, Idaho Code, “if it finds the substance has a potential for abuse.” I.C. § 37-2702 (b). I.C. § 37-2708 sets forth the standards for adding a substance to schedule III, including that “abuse of the substance may lead to moderate to low physical dependence or high psychological dependence.” I.C. § 37-2708(c). This further confirms the conclusion that compounds of the substances described in I.C. § 37-2709 (c) are controlled substances only if it is demonstrated that such compounds have “a potential for abuse associated with a depressant effect on the central nervous system.”
.This does not mean, however, that if pursuant to the authority granted to it under I.C. §§ 37-2702, -04, -06, -08, -10 and -12, the State Board of Pharmacy adds phencyclidine hydrochloride to the list of controlled substances that proof of potential for abuse is necessary. If phencyclidine hydrochloride is explicitly included within the controlled substances by the Board acting pursuant to its authority, the question of whether it is described by I.C. § 37-2709 (c) would become moot.
. Meyers, Review of Medical Pharmacology (3d Ed. 1972), refers to phencyclidine, the chemical structure of which is more accurately described as phenyl-cyclohexyl-piperidine (CeHj CeHu' (NH CgHio)), which is also known as POP and is sold as a veterinary tranquilizer under the name Serylan, as “an agent used in veterinary practice to immobilize primates and a drug commonly, if illegally, used by ingestion or smoking to produce euphoria and a fantasizing state.” At 194. The text does not refer, however, to any compounds of phencyclidine, such as phencyclidine hydrochloride, or describe whether such compounds have a similar effect upon the nervous system. This textbook, and the other reference works we have examined, such as Hackh, Chemical Dictionary (4th Ed. 1969), do not refer to the compound phencyclidine hydrochloride, or any other compounds of phencyclidine. Although one of the issues in this case is whether it was proven to the jury that phencyclidine hydrochloride has a potential for abuse associated with a depressant effect on the central nervous system, not whether we may ascertain this fact by examination of various pharmacy and chemistry reference works, an examination of these works indicates that one unschooled in chemistry or pharmacy, even with access to reference works in the field, cannot easily ascertain the answer to this question and that expert testimony on the issue is essential.