specially concurring.
I concur in the affirmance of defendant’s conviction, but I disagree with the majority’s analysis of whether the gun should have been suppressed. I agree with its handling of the other claims of error.
A principal issue only lightly touched on in the majority opinion and the dissent is, assuming that defendant’s statements were properly suppressed, must the gun also be suppressed.
Defendant appeals his conviction for robbery in the second degree. He was also convicted in the same trial for the crimes of unauthorized use of a motor vehicle and being an exconvict in possession of a firearm. He does not appeal those convictions. The vehicle he used without authorization was a taxicab which he had stolen. The firearm he possessed unlawfully as an exconvict was the same firearm involved in the robbery charge and is the subject of the motion to suppress. Curiously, he does not challenge the use of the firearm as evidence in the charge of possession as an exconvict.
Defendant’s initial motion to suppress related only to oral statements which he made to his probation officer, Murray. The trial court’s written findings are:
“Defendant’s probation officer (Murray) was contacted by the City of Bend Police Department concerning defendant’s suspected involvement in an armed robbery. They requested that Murray contact defendant and procure a picture of him. Murray left a message for defendant to contact him with defendant’s wife and also at defendant’s place of employment. Later, defendant met Murray at Murray’s office. Murray asked defendant if he had ‘done the robbery.’ The defendant denied committing it and said he could account for his whereabouts. Murray phoned the police department. As he was *714talking to the dispatcher, the defendant blurted, T did it; I am sorry,’ and handed a gun to Murray that he had under his shirt.
“After asking the police to come to his office, Murray questioned defendant about the details of the armed robbery. In response to a question defendant said, ‘The clerk can I.D. me.’ When asked what he did with the money, he responded, T gave it to some bums.’ In being asked to account for his whereabouts, he admitted stealing a taxicab.
“Murray did not advise defendant of his Miranda rights. There were no threats or promises made and, although defendant had been drinking, his statements were made knowingly. Murray did not intend to allow defendant to leave until the police had talked to him and would have arrested him if defendant had tried to leave.”
The court concluded that defendant’s statements, “I did it; I am sorry,” “The Clerk can I.D. me” and “I gave the money to some bums” were in response to custodial interrogation and were suppressed because defendant was not advised of his constitutional rights. Defendant’s confession that he stole the taxicab was not suppressed, because the court concluded that it was not a product of custodial interrogation. Defendant does not claim that the court erred in refusing to suppress his admission that he stole the taxicab.
After defendant’s conversation with Murray, two police officers arrived and questioned him. He was arrested at that time for unauthorized use of a motor vehicle and he took the officers to where he had hidden the taxicab. Defendant filed a supplemental motion to suppress the gun which he had given to Murray. He cited State v. White, 297 Or 302, 685 P2d 983 (1984), and argued that discovery of the gun by Murray was a direct product of the unlawful interrogation. In the trial court, the state argued that the gun was voluntarily disclosed by defendant, not in response to any interrogation, that it was seizable as incident to the arrest that followed and that it would have inevitably been discovered by the police when they arrested him in Murray’s office.
Although I agree with the state that defendant’s act of giving the gun to Murray was a free and voluntary act, I do not agree that that is a particularily relevant conclusion. As defendant argues, the disclosure of the gun was a non-verbal communication in conjunction with his statement that he *715“did it,” which was a direct response to Murray’s question whether defendant had committed the robbery. His verbal responses to the questions were also freely and voluntarily made but were suppressed, because Murray had not properly advised defendant of his Miranda rights.
• The parties stipulated that Murray had authority to arrest defendant for a parole violation; but he did not in fact make such an arrest. The relationship between the surrender of the gun and the subsequent arrest of defendant for unauthorized use of a vehicle is too attenuated to support seizure of the gun incident to that arrest.
I agree with the state’s argument, presented to the trial court, that the gun should not be suppressed as physical evidence, because it would have inevitably been discovered in defendant’s possession when he was arrested. We described the concept of “inevitable discovery” in State v. Hacker, 51 Or App 743, 627 P2d 11 (1981); see also State v. Brown, 47 Or App 201, 613 P2d 1107 (1980); State v. Garrison, 21 Or App 155, 534 P2d 210, rev den (1975). In order to invoke this exception to the rule requiring exclusion of illegally secured evidence, the state must establish that the evidence would have been discovered and that the law enforcement officers did not act in bad faith to hasten the otherwise inevitable discovery of the evidence. State v. Hacker, supra.
In State v. Miller, 300 Or 203, 709 P2d 225 (1985), cert den-US_(1986), the court discussed the contours of the rule:
“We are persuaded that the doctrine of inevitable discovery encompasses a two-part test. The prosecution must establish by a preponderance of the evidence: (1) that certain proper and predictable investigatory procedures would have been utilized in the instant case, and (2) that those procedures inevitably would have resulted in the discovery of the evidence in question.” 300 Or at 226.
The evidence of defendant’s arrest is not disputed, and the court found that he admitted stealing the taxicab. He was arrested on the basis of incriminating statements which were not suppressed; a ruling which defendant does not challenge on appeal. The arrest was not based on unlawfully obtained evidence. Although there is no direct evidence that defendant was searched when arrested or when he was later lodged in jail, *716it is common knowledge that persons are searched when arrested and taken into custody and before being lodged in jail. It is a virtual certainty that when the police officer arrested defendant for unauthorized use of the taxicab they would have at least patted him down and it is predictable that the pistol tucked into his waistband would have been discovered. Although the court did not addfess this contention, it was posed and litigated and is a basis for upholding the court’s decision.
I concur in the result reached by the lead opinion.
Buttler, J., joins in this opinion.