dissenting.
Despite the majority’s breathless incantation of Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988), it commits the very same error Pooler attacked. It is also inconsistent with other precedent. Accordingly, I dissent.
In Pooler, the Supreme Court stated:
*431“Without discussion, the Court of Appeals concluded that the arrest in this case was invalid because the stop was invalid. Pooler v. MVD, supra, 88 Or App [475] at 478-79[, 746 P2d 716 (1987)]. That approach, however, begs the question. An arrest is not invalid simply because a stop is somehow unlawful; an arrest is invalid if it follows as a consequence of and depends upon the unlawful stop. The intermediate step, or connecting link, between stop and arrest is the probable cause for the arrest. A stop may produce the evidence which forms the basis for probable cause for an arrest. Accordingly, an unlawful stop may ‘invalidate’ an ensuing arrest, but only through the exclusion of evidence garnered from the stop.” Pooler v. MVD, supra, 306 Or at 52. (Emphasis supplied.)
Similarly, a search is not invalid “simply because” the prior stop was invalid. Pooler and earlier cases require that we look at whether intervening circumstances, such as voluntary consent, exist which would make the illegality of the initial stop irrelevant. Since consent is the intervening circumstance here, in order to supress evidence obtained as a result of that consent we would have to find that the consent was not voluntary. The reasoning of the majority leads to the conclusion that if, but for an improper stop, the conversation in which a defendant gave consent would not have occurred, the voluntariness of that consent is irrelevant. That is inconsistent with prior cases.
The majority’s suggestion that State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), is no longer viable is without merit. Pooler did not overrule cases concerning consent searches; that case has nothing to do with consent. All it says is that we must analyze the causal relationship between an illegal stop and a subsequent arrest to see whether the causal chain between stop and arrest is broken; if so, the arrest is valid. More generally, Pooler admonishes us to avoid conclusory analysis and proceed through all the steps in the causal chain after an illegal stop. 306 Or at 52.
Despite the fact that Kennedy cited federal caselaw, see State v. Caraher, 293 Or 741, 653 P2d 942 (1982), Kennedy remains the leading case on consent searches. See State v. Penney, 87 Or App 357, 742 P2d 660 (1987); State v. Glenn, 83 Or App 650, 732 P2d 946 (1987); State v. Smith, 73 Or App 287, 698 P2d 973 (1985); State v. Earls, 69 Or App 75, 683 P2d 1387, rev den 297 Or 824 (1984); State v. Hageman, 59 Or App *43296, 650 P2d 175 (1982). See also State v. Wolfe, 295 Or 567, 669 P2d 320 (1983).
Turning to the issue of consent, and our case law, the historical facts as found by the trial court demonstrate that defendant’s consent here was voluntary and that the search was therefore valid. No coercive atmosphere was present. Defendant was stopped by the side of the road, in daytime, by two officers. He received Miranda warnings and was advised of his right not to consent to the search. The entire conversation between him and Becker appears to have taken place while defendant was seated in his truck. Defendant’s attempt to use the officer’s desire to search the boxes as leverage to negotiate a citation instead of an arrest is further evidence that he was aware that he need not consent to the search. He was given the choice between the certain delay of waiting for a warrant or consenting to the search and perhaps being sent on his way. Defendant made the latter choice; his choice was apparently based on what was most convenient for him. Aside from the stop itself, there is no evidence of coercion involved. Under the totality of the circumstances, I would hold that the state has met its burden of proving that defendant’s consent to the search was voluntary. See State v. Kennedy, supra; State v. Earls, supra. We should affirm the trial court.