¶1specially concurring.
¶2I know of no authority applying the doctrine of collateral estoppel to rulings on the admissibility of evidence in either civil or criminal cases. The suppression order at issue here, albeit a pretrial ruling, was essentially nothing more or less than an order sustaining an objection to preferred evidence.
¶3specially concurring.
¶4The only constitutional question presented here is whether petitioner was denied effective counsel because his attorney at his 1973 criminal trial did not *344assert the doctrine of collateral estoppel in support of a motion to suppress evidence obtained as a result of a warrantless search of an automobile in which petitioner and a friend were riding. Petitioner’s friend had gone to trial first and had successfully contended in a pretrial hearing that there was no probable cause to support the warrantless search. The state did not appeal.
¶5The majority would have us believe that there is no problem because the law in Oregon was clear in 1973, and is clear now, that collateral estoppel is inapplicable to criminal cases, even with respect to pretrial motions. This is so, it is suggested, because collateral estoppel, as applied in the criminal context, is a constitutional concept, a part of former jeopardy, and therefore is available only to the defendant in the original proceedings, even though former jeopardy has no application to pretrial motions because jeopardy has not attached.
¶6While I concur with the majority’s disposition of the case, I do not agree that collateral estoppel has no application to criminal cases independent of constitutional law or res judicata, at least as to issues determined in pretrial motions to suppress. I see no reason why the state should have as many "bites of the apple” as there are defendants to establish that a given warrantless search was valid. I agree with petitioner that the application of the doctrine in civil cases in Oregon since 1970 was clear at the time of his trial: collateral estoppel precludes a party from re-litigating an issue, decided adversely to that party, in a subsequent lawsuit involving a litigant who was not a party to the prior proceeding. Bahler v. Fletcher, 257 Or 1, 472 P2d 329 (1970). It makes no difference that the second litigant may not be bound by a prior determination in favor of his adversary; mutuality of estoppel is not required. As restated in State Farm v. Century Home, 275 Or 97, 550 P2d 1185 (1976), there are two essential conditions for the application of *345collateral estoppel by a nonparty against one who was a party to a prior action:
"First, there must exist an identity of issue between the prior action and the action in which estoppel is asserted; and second, the party against whom estoppel is sought must have had a full and fair opportunity to contest the issue decided adversely to him.” 275 Or at 102.
¶7Both of those conditions were met in this case.
¶8Its application to criminal cases, however, is not so clear. It is true that ORS 136.430 provides:
"The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specifically provided in the statutes relating to crimes and criminal procedure.”
¶9It is also true that no statute specifically provides that collateral estoppel is inapplicable in criminal proceedings.
¶10Further, the Oregon Supreme Court in State v. George, 253 Or 458, 455 P2d 609 (1969), applied collateral estoppel, as distinct from former jeopardy, in a criminal case, rejecting the idea that collateral estoppel is exclusively a constitutional concept. The Court stated: *346State v. Mozorosky, 277 Or 493, 561 P2d 588 (1977), did not alter that conclusion.
*345"The basis for this decision is not former jeopardy which applies only when the prosecution in both cases is for the same offense. … For present purposes, it may be assumed that the killing of Kirk and the killing of Eggsman, albeit by the same bullet, were separate offenses, and therefore, that the case is not governed by the constitutional provision against double jeopardy. … Nevertheless, '[T]he conclusiveness of a fact which has been competently adjudicated by a criminal trial is not confined to such matter only as is sufficient to support a plea of double jeopardy.’ United States v. De Angelo, 135 F2d 466, 468 (3d Cir 1943). We recognized this rule in State v. Dewey, [206 Or 496, 292 P2d 799 (1956)] where we applied to a criminal case the doctrine of collateral estoppel.” 253 Or at 466. (Emphasis added.)
¶11*346However, petitioner has cited no Oregon cases, and we have found none, where the doctrine has been applied in criminal cases in favor of a defendant not a party to the first determination. On the other hand, I do not accept the apparent position of the majority opinion that collateral estoppel, as applied in the criminal context, is exclusively a constitutional concept, a part of former jeopardy, although the majority concedes that the Supreme Court may wish to expand the application of the doctrine. It is sufficient to point out that former jeopardy may be applicable even though collateral estoppel or res judicata is not: a defendant may be put in jeopardy without his guilt or innocence being resolved, Ex Parte Tice, 32 Or 179, 49 P 1038 (1897); State v. Chandler, 128 Or 204, 274 P2d 303 (1929); State v. Embry, 19 Or App 934, 530 P2d 99, rev den (1975). Further, former jeopardy does not apply to pretrial determinations.
¶12While I see no policy reason why collateral estoppel should not preclude the state from relitigating a pretrial determination that a warrantless search was *347not based upon probable cause, the question had not been decided in Oregon at the time of petitioner’s trial in 1976, and the law was not clear as to its application to these facts. Even if we were to decide now that petitioner would prevail in 1979 if the question were presented, I cannot say that he would have prevailed in 1976 had his counsel argued the point in support of the motion to suppress.
¶13Considering the state of the law, I can say that a particularly astute lawyer would have raised the question, and that he might have prevailed ultimately. Such a conclusion, however, does not result in petitioner having been denied effective counsel. State v. Abel, 241 Or 465, 406 P2d 902 (1965); Benson v. Gladden, 242 Or 132,407 P2d 634 (1965), cert den 384 US 908 (1966); North v. Cupp, 254 Or 451, 461 P2d 271 (1969), cert den 397 US 1054 (1970).
¶14North v. Cupp, supra,involved the failure of counsel to raise the issue of the inadmissibility of evidence obtained in a search where there was "little doubt that the search and seizure was in violation of the Fourth Amendment.” 254 Or at 453. Although the court noted that "[i]ncompetence of counsel, is not asserted as a ground for relief,” 254 Or at 454, it proceeded, by way of dictum, to state:
"Lest it be thought that in fact counsel was incompetent because he failed to object to the evidence, we quote with approval language quoted in State v. Abel, 241 Or 465, 469, 406 P2d 902, 904 (1965):
" ' "As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every law suit. He made some mistakes. The printed opinions that line the walls in our offices bear *348mute testimony to that fact. His client is entitled to a fair trial, not a perfect one.”
" 'U. S. ex rel Weber v. Ragen (CA 7 Ill) 176 F2d 579, 586, per Minton, J.’
Also see Benson v. Gladden, 242 Or 132, 140-41, 407 P2d 634 (1965).”
¶15The most rigorous standard, set forth in Moore v. United States, 432 F2d 730, 736 (3rd Cir 1970), was quoted in our opinion in Rook v. Cupp, 18 Or App 608, 526 P2d 605, rev den (1974):
" '… The standard or adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.’ …” 18 Or App at 612.
¶16Our decision in Rook, however, did not rest on the quoted language because the conduct of the attorney whose performance was claimed to be incompetent rested on a tactical judgment.
¶17Even if we were to apply the standard quoted above from Moore to this case, there is no evidence in this postconviction proceeding to support the proposition that the trial attorney’s failure to assert collateral estoppel did not measure up to the standard which normally prevailed at the time and place in question. I cannot say as a matter of law that an attorney who fails to assert a proposition which, if successful, would make new law, is incompetent or has not rendered effective assistance to the defendant.
¶18I would hold that petitioner has not sustained his burden of proof, and the trial court erred in granting him postconviction relief. For the foregoing reasons, I concur in the reversal of the judgment below.
¶19In Mozorosky, defendant was charged in eight indictments with theft from his employer, all of which were consolidated for trial. A jury acquitted him on two of the indictments, but was unable to agree on the remaining six. The trial court, on defendant’s motion, dismissed the remaining six on the grounds of double jeopardy, res judicata and collateral estoppel. This court, on appeal, affirmed, holding that because the same evidence was used with respect to all eight indictments, even though each covered a different time period, the doctrine of collateral estoppel, as a component of double jeopardy, precluded the state from relitigating the issues presented. The Supreme Court granted review "because of the perplexing questions concerning the application of the doctrine of collateral estoppel.” (277 Or at 495.) It concluded that the jury, "acting rationally, could have acquitted the defendant on the charges made in the first two indictments "upon an issue other than that which the defendant seeks to foreclose from consideration’; that is, thefts during the periods covered by the last six indictments.” (277 Or at 500.) Accordingly, the Court correctly concluded that collateral estoppel was not applicable.
¶20We adopted the following test from State v. Thomas, — W Va-, 203 SE2d 445, 461 (1974):
"Where a counsel’s performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client’s interests, unless no reasonably qualified defense attorney would have so acted in the defense of the accused.”