
    Submitted on petition for review April 20,
    reversed and remanded June 20, 1978
    STATE OF OREGON, Respondent, v. JAMES CLIFTON FAIRLEY, Petitioner.
    
    (No. C 77-02-02660, CA 8857, SC 25736)
    580 P2d 179
    Marianne Oswald, Deputy Public Defender, and Gary D. Babcock, Public Defender, Salem, for the petition.
    Catherine Allan, Assistant Attorney General, James A. Redden, Attorney General, and Al J. Laue, Solicitor General, Salem, contra.
    MEMORANDUM OPINION.
    Tongue, J., filed dissenting opinion in which Howell and Bryson, J.J., join.
   MEMORANDUM OPINION.

The opinion of the Court of Appeals, 33 Or App 271, 576 P2d 38 (1978), is reversed for failure to suppress evidence seized in violation of ORS 131.625. State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977). There was insufficient evidence of danger to the police officer who made the seizure to justify failure to satisfy the statute.

The case is remanded with instructions to suppress the seized evidence.

TONGUE, J.,

dissenting.

I most respectfully dissent for the same reasons as stated in my dissenting opinion in State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977), and because, in my opinion, the facts of this case are different than those in Valdez.

I am authorized to say that Howell, J., and Bryson, J., concur in this dissent.  