concurrence">UNIS, J.,

concurring.

Although I join in the opinion of the court, I write separately to express my view that the holding in this case brings into focus matters that deserve consideration by the legislature.

OEC 101(2) states that, with a number of exceptions, the Oregon Evidence Code applies generally to “criminal actions and proceedings.” Those exceptions are found in OEC 101(4). A motion to suppress evidence obtained through an allegedly illegal search or seizure, however, is not one of those exceptions. Nonetheless, this court correctly concludes “that a hearing on a motion to suppress evidence involves a preliminary question of fact concerning the admissibility of evidence to which OEC 104(1)[1] applies.” 315 Or at 129. The court reaches that conclusion by relying on OEC 101(4)(a), which provides that the Oregon Evidence Code (with the exception of the rules relating to privileges) does not apply to “[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under [OEC 104].” Specifically, the court concludes that OEC 801 to 806, the rules relating to hearsay, do not apply at a hearing on a motion to suppress evidence obtained through an allegedly illegal search or seizure.

OEC 101(4) cannot be read literally. If the Oregon Evidence Code as a whole (with the exception of the rules relating to privileges) does not apply to preliminary fact determinations under OEC 104, as OEC 101(4) literally suggests, the result is nonsensical: OEC 104 itself does not *134apply to any situation to which OEC 104 applies. Obviously, that is not what the legislature intended.

If the Oregon Evidence Code, with the exception of the rules relating to privileges, does not apply to such suppression hearings, it is not clear what evidentiary standards are applicable. This court’s holding in this case suggests that a prosecutor, when faced with such a motion, can simply introduce the police reports or summarize for the court the officers’ testimony. Under this court’s holding in this case, OEC 8022 is not a proper basis for excluding hearsay or multiple hearsay evidence.3 Yet, because it is unreliable, much hearsay is excluded at trial. 2 McCormick on Evidence, § 245 (4th ed 1992). The receipt of hearsay at a suppression hearing presents confrontation clause and due process concerns. Evidentiary standards, and particularly rules governing the admissibility of hearsay, are important in hearings on motions to suppress, and I suggest that the legislature should determine what evidentiary standards are applicable.

It has been nearly 12 years since the adoption of the Oregon Evidence Code. I believe that it would be appropriate for the legislature to review the Oregon Evidence Code in order to determine whether the experience of nearly 12 years has illuminated areas that need to be clarified, modified, or expanded. In particular, it would be helpful for the legislature to augment the Oregon Evidence Code with specific legislation prescribing the rules of evidence that apply at a hearing on a motion to suppress evidence in a criminal case, such as the legislature has done in ORS 135.173, that prescribes the rules of evidence that apply at a preliminary hearing conducted pursuant to ORS 135.070 to 135.225. See, e.g., ORS 135.173 and 135.185, quoted supra, 315 Or at 130 n6 & 131.4

Van Hoomissen, J., joins in this concurring opinion.

See State v. Carlson, 311 Or 201, 208, 808 P2d 1002 (1991) (describingjudge’s role in determining preliminary questions of fact under OEC 104(1)).

OEC 802 provides:

“Hearsay is not admissible except as provided in ORS 40.450 to 40.475 or as otherwise provided by law.”

See OEC 805 (hearsay within hearsay rule).

The function of a preliminary hearing under ORS 135.070 to 135.225 is simply to determine whether probable cause exists to hold the accused for trial.

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