The opinion
SCHUMAN, J.,
dissenting.
A warrantless search, even when it is lawful because it falls within one of the exceptions to the warrant requirement in Article I, section 9, of the Oregon Constitution, is the unilateral act of one branch of government, the executive, unchecked by judicial oversight. As such, the search runs counter to a fundamental principle — perhaps the fundamental principle — of American constitutionalism: distrust of unchecked executive power. For that reason, we should do everything within the law to encourage law enforcement officers and other members of the executive branch to avail themselves of the warrant process. One thing we can do is to take very seriously the mandate that, “[i]n testing an affidavit, a court is to construe it ‘in a commonsense, nontechnical and realistic fashion * * *.’ State v. Charlesworth/Parks, 151 Or App 100, 116 , 951 P2d 153 (1997), rev den[,] 327 Or 82 (1998) (quoting State v. Evans, 110 Or App 46, 51 , 822 P2d 1198 (1991)).” State v. Wilson, 178 Or App 163, 167 , 35 P3d 1111 (2001).
Under that standard, I conclude that the unchallenged and uncontroverted portions of the affidavit in this case, recited at 215 Or App at 272-73 n 11 (Edmonds, J., dissenting), justified the magistrate’s decision to issue the warrant. The reviewing judge erred in ruling otherwise. In other *275 words, even if we were to decide that Loewen’s statements were properly excised and that Judge Jones’s legal analysis deserves deference, the necessary result would nonetheless be reversal.
Landau, J., joins in this dissent.