The opinion
BUTTLER, J.,
dissenting.
Because I think the trial court properly held that the warrantless search of defendant’s clothing was without probable cause, I dissent.
Unless we are prepared to hold that there is probable cause to search any person present at the time a valid warrant to search for drugs is being executed, the majority opinion is wrong. We have never so held, and, in fact, have held to the contrary where there were facts lending substantially more support to a finding of probable cause for a search than exists here. In State v. Ford, 20 Or App 384 , 531 P2d 740 (1975), the defendant showed up at premises *279 where a search warrant was being executed in search of drugs. Defendant had sticking out of his pocket, in plain view, a bent spoon, which is commonly used in connection with the illegal use of drugs. A police officer removed the spoon from defendant’s pocket, and at that time observed a cannister which was also seized. We held that the officer was without probable cause to search defendant and seize the spoon and cannister.
In State v. Groda, 285 Or 321 , 591 P2d 1354 (1979), defendant appeared at the scene of an extensive drug search pursuant to a warrant after having called immediately prior to his arrival. He asked for Richard, and when the officer said Richard was busy, defendant said: "[T]his is Ronny — Tell him they’re done and I’m on my way over.” On those facts, the Supreme Court held that the officers had probable cause to arrest defendant and to search his person incident to the arrest. No such facts exist here. In Groda , the Supreme Court said:
"A search of a person without a warrant is permissible as an incident to arrest and the search of the defendant was valid for this reason. The reason a search without a warrant is permissible as an incident to arrest is to protect the officer and to avoid the destruction or disappearance of evidence. Chimel v. California, 395 US 752, 762-763 , 89 S Ct 2034 , 23 L Ed 2d 685 (1969); State v. Chinn, 231 Or 259, 267 , 373 P2d 392 (1962). These reasons are applicable in the search of the defendant in this case.
"In order to arrest a person without a warrant, the officer must have probable cause to believe that a crime has been or is being committed by the arrested person. (In this case we do not need to amplify on the nature of the crime.) In the present case the officers had to have probable cause to believe that the defendant was engaging in a crime encompassing the possession of drugs.” 285 Or at 325-26 .
Clearly, the officers had the right to pat down defendant’s trousers for a weapon, but when they *280 found none, that should have ended the matter. State v. Gressel, 276 Or 333 , 554 P2d 1014 (1976). See State v. Krogness, 238 Or 135 , 388 P2d 120 (1963), cert den 377 US 992 (1964).
I do not understand the majority’s statement that defendant did not have a reasonable expectation of privacy with respect to the contents of his trousers. He had as much expectation as the defendant did in State v. Elkins, 245 Or 279 , 422 P2d 250 (1966), where the police, after a valid arrest of defendant, patted him down for a possible weapon and seized an unlabelled bottle containing capsules and pills which subsequently were determined to be contraband.
The majority opinion does not cite any authority in support of its decision, other than those which support the proposition that the officers were entitled to pat down defendant for weapons for their own protection. The only other authorities discussed in the majority opinion are those which the majority contends are "inapposite,” and are those mentioned briefly in this dissent.
The state had the burden of proving that the officers had probable cause to search defendant. State v. Groda, supra. It failed to do so here.
Trial judges, as well as law enforcement authorities, are entitled to know what the ground rules are. The majority opinion does not further that cause; if anything, it makes them less distinct. At the very least, we should overrule State v. Ford, supra, if we are not going to follow it. We cannot, however, do anything about Groda, Gressel, and Elkins except to follow them.
Therefore, I respectfully dissent.