dissent">CARTER, Justice

(dissenting).

I dissent.

As the Supreme Court recognized in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980):

It is true that the area that may legally be searched is broader when executing a search warrant than when executing an arrest warrant in the home.... This difference may be more theoretical than real, however, because the police may need to check the entire premises for safety reasons....

Payton, 445 U.S. at 589, 100 S.Ct. at 1381, 63 L.Ed.2d at 652 (citations omitted). It appears without dispute in the combined testimony of the witnesses on this issue that defendant opened the door when the police announced their presence and was never allowed to exit the room or close the door on the officers. That was because the officers were in the process of arresting defendant pursuant to a valid arrest warrant. In so doing, it was up to the officers to determine on which side of the threshold the arrest would be completed. The officers elected to complete the arrest on the motel-room side of the threshold and, in so doing, were in a place where they had a right to be. Apparently, the marijuana seized was in plain view. But, if it was not, the search that occurred did not go beyond that which is allowed in a search incident to a valid arrest.

I would affirm the judgment of the district court.

CADY, J., joins this dissent.

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