dissenting.
Even a casual reading of this case shows that the majority has permitted its outrage with what the *598police did to obscure the legal principles we are called upon to rationally and dispassionately apply:
1. "Five police officers proceeded to pound on the door.” (Slip opinion at 1.) Aside from creating a rather comical picture of five men simultaneously assaulting one door, this version of the facts is not totally supported by any of the witnesses. No one agrees how many officers were present. Two witnesses — whom the trial judge apparently disbelieved in other respects— claim someone "pounded” on the door. The defendant himself said someone "knocked.”
2. "The official misconduct here was flagrant * * *. It was purposeful.” (Slip opinion at 6.) Unless all clearly illegal conduct is per se "flagrant,” this overstates. What the officers did was wrong, without question, but they did it without harassing tactics. Once the incorrect decision to "secure” had been made, there is nothing in this record to suggest the officers behaved in a manner which would have been deemed unreasonable if the "securing” had been justified. In fact the majority, which decries "bootstrapping” (slip opinion at 5), uses the very language quoted above in an attempt to "bootstrap” its way under the rhubric of Brown v. Illinois,, 422 US 590, 603-604, 95 S Ct 2254, 45 L Ed 2d 416 (1975):
"* * * The question whether a confession is a product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, (footnote omitted) the presence of intervening circumstances, * * * and, particularly, the purpose and flagrancy of the official misconduct are all relevant. * * * The voluntariness of the statement is a threshold requirement. * * * *599And the burden of showing admissibility rests, of course, on the prosecution.” 422 US at 603-04,45 L Ed 2d at 427. (Citations omitted.)
Brown v. Illinois dealt with a fact situation quite unlike this one; a fact situation which demonstrated what the Supreme Court meant by using such words as "purposeful” and "flagrant.” In Brown, defendant was arrested without a warrant and without probable cause. He was given his Miranda warnings. While still in custody, he made two inculpatory statements. The entire sequence of events — illegal arrest at gunpoint, interrogation in a closed room at the police station, his first confession, his participation with the arresting officers in the search for an accomplice and his second confession all followed in unrelieved fashion. The Court specifically noted,
"The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright and confusion.” Id., at 605.
Nothing that followed the arrest gave rise to an opportunity for defendant to reassess his situation.
In this case, in contrast to Brown, a sufficient length of time transpired following the original illegal entry to permit sober reflection and a calming of the nerves. Further, defendant was advised of his Miranda rights at the time the search warrant was served, then later readvised and told he was not then under arrest in an interview which took place in a car outside defendant’s home. It was still later, after being so advised, that he finally made the statements which led to the discovery of the firearm. At the time he gave them, he knew he was not a suspect. In fact, it was clear from the context in which the question about guns was asked that the officers were simply trying to find weapons defendant’s stepson may have used in commiting armed robbery. They were not looking for anything to incriminate defendant. The illegality of an arrest will not necessarily vitiate the admissibility of statements made thereafter where intervening *600Miranda warnings have been given. Brown v. Illinois, supra, 422 US at 605.1
As I understand State v. Warner, 284 Or 147, 585 P2d 681 (1978), our function in reviewing for constitutional error is to take the facts as found by the trier of fact, analyze them in light of the relevant constitutional principles, and then adopt as our holding the most reasonable construction to be given those facts in deciding such ultimate, "constitutional” facts as voluntariness. In my view, the most reasonable construction of the facts here is that defendant fully knew what his rights were and chose to talk. The majority view on this point is also reasonable, but barely so.
As to the search of the car trunk, the majority’s view is not reasonable at all. Not only had defendant been advised of his Miranda rights and that he was not under arrest, but he was also twice told — once verbally and once in writing — that he did not have to consent to the search. This advice was more than he was entitled to — see State v. Douglas, 260 Or 60, 72-74, 488 P2d 1366 (1971), see Schneckloth v. Bustamonte, 412 US 218, 93 S Ct 2041, 36 L Ed 2d 854 (1973) — and far more than enough to attenuate any taint from his arrest.
On this record, I would hold that the statements and the gun were properly received in evidence, and would affirm.
I respectfully dissent.
Schwab, C. J., Thornton and Joseph, Judges, join in this dissent.The majority also neglects to mention one very important factor: in this case, unlike most cases, defendant testified at the motion to suppress. His testimony specifically covered the time during which he made the incriminating statements about the gun, yet he never claimed that he felt forced, threatened, intimidated or coerced into saying what he did. The question was defendant’s state of mind — a subject most uniquely within his own knowledge. Yet he chose not to talk about it. A party which produces less satisfactory evidence when it was within the party’s power to produce more satisfactory evidence usually does so because the better evidence does not exist.