dissenting.
For nearly 100 years the U.S. Supreme Court construed the fifth amendment as rendering inadmissible confessions “ ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight....’” Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 42 L. Ed. 568 (1897); Hutto v. Ross, 429 U.S. 28, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976). The decisions of this court were in accord. See, State v. Hall, 237 Neb. 169, 465 N.W.2d 150 (1991); State v. Mayhew, 216 Neb. 761, 346 N.W.2d 236 (1984), citing Bram, supra.
In Arizona v. Fulminante,_U.S__., 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), the Supreme Court summarily discarded Bram as no longer stating the standard for determining the voluntariness of a confession. In its place the Supreme Court adopted the “totality-of-the-circumstances” approach relied upon by this court today.
This court has in the recent past implicitly concluded that the opinions of the U.S. Supreme Court define for both the federal Constitution and our own state Constitution the extent of the protections afforded persons accused of crime. After reaching its high water mark in such landmark cases as Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the Supreme Court has retreated from those positions, sometimes steadily, sometimes precipitously.
As I am unable to agree that today’s holding is either sound constitutional doctrine or a desirable social policy, I abandon my previous limited adherence to the primacy of the U.S. Supreme Court in defining state constitutional rights and dissent.
In State v. Favero, 213 Neb. 718, 724, 331 N.W.2d 259, 263 (1983), I wrote:
It may well be necessary, in view of the decisions of the U.S. Supreme Court which have considerably weakened the once absolute strictures of Miranda, for this Court to . . . formulate, as have a number of the states, a state *501constitutional basis to deal with police conduct violative of Miranda.
See, also, State v. Arnold, 214 Neb. 769, 336 N.W.2d 97 (1983) (White, J., concurring) (addressing the same concerns for search and seizure cases). That day is here. Since the decision in Favero, the U.S. Supreme Court has continued to modify many of its prior decisions in the fourth, fifth, and sixth amendment contexts, severely limiting the protections afforded persons accused of crimes.
In the fourth amendment area, the Court has relaxed the requirements for the issuance of a search warrant based on an informant’s tip to the police. At one time an officer seeking a warrant based on such information had to show some factual basis for the informant’s knowledge, as well as facts establishing either the veracity of the informant or the reliability of the information in a particular case. See, Aguilar v. Texas, supra; Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Court abandoned this two-prong test, however, in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Today, decisions whether probable cause exists to support issuance of a search warrant are based on a “totality-of-the-circumstances” approach. Gates, supra at 462 U.S. at 230. Though the approach is designed to remove unnecessary impediments to effective law enforcement, Justice White warned that the Court’s new approach threatens to eviscerate the traditional probable cause standard. Gates, supra (White, J., concurring).
The Court has also significantly enhanced the power of the police to search automobiles without a warrant. In 1925, the Court held that a warrantless search of an automobile requires probable cause that evidence is contained therein and that exigent circumstances make it unlikely that the car or the evidence will still be available when a warrant is obtained. See Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). Later, the Court engrafted an exception to the Carroll rule, allowing admission of evidence discovered during an inventory search of an automobile impounded for overtime parking to protect the owner’s property. See South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 *502(1976). Finally, in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), the Court extended Opperman to allow inventory searches of closed containers in impounded vehicles. So long as the search is conducted pursuant to standing police regulations and is not undertaken solely to discover evidence, the search is valid even if the owner is available, there is no threat of loss of the property, and there is no probable cause that incriminating evidence is located in the car. Bertine, supra.
The Court has also retreated from the rule that even minimally intrusive “stop and frisk” activities require at least an articulable suspicion that the subject is engaged in illegality. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the Court held unconstitutional the random stopping of automobiles to check for valid operator’s licenses. However, 11 years later the Court upheld the use of fixed checkpoints to check the sobriety of each driver passing through. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). The Sitz Court reasoned that the magnitude of the drunk driving problem and the minimal intrusion on motorists’ privacy justified departure from the articulable suspicion standard.
The balancing approach adopted by the Sitz Court has appeared in several other cases broadening the power of the police to engage in warrantless searches. See, Treasury Employees v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989) (suspicionless drug testing of Customs Service employees involved in drug interdiction activities or who carry a weapon is valid given compelling government interests involved); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (mandatory drug testing of railroad employees involved in certain accidents permissible under balancing approach); Illinois v. Rodriguez, _U.S__, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (warrantless entry based on consent of third party whom police reasonably believe to possess common authority over the premises is valid, even if that person in fact lacks such authority).
*503The Court’s move toward limiting the protections afforded persons accused of crime is not limited to the search and seizure area. Fifth and sixth amendment protections are eroding as well. A defendant’s sixth amendment right to counsel is violated when the police “deliberately elicit” incriminating statements in the absence of an attorney. Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). In United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980), the Court reversed a conviction based in part on statements made to an informant paid by the police to listen for inculpatory remarks. Though the informant in Henry complied with strict instructions not to question the defendant regarding the charged crime, the Court nevertheless found that the informant deliberately elicited the statements by initiating casual conversation with the defendant. In Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986), however, the Court unnecessarily reached out to decide that statements made to an informant placed in close proximity to the defendant, but who makes no effort to stimulate conversation, are admissible.
In the fifth amendment context, the Court, in the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), held that the giving of specific warnings and a valid waiver are prerequisites to the admissibility of statements made by an accused while in custody. The Court has chipped away at this protection as well. Statements obtained in violation of a defendant’s Miranda rights are now admissible to impeach the defendant’s direct examination testimony as to matters directly related to guilt or innocence. See Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The Court went even further in United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980), allowing the use of illegally obtained evidence to impeach statements made for the first time by the defendant on cross-examination. In dissent, Justice Brennan noted the severe impact of these decisions on the defendant’s fifth amendment right to an unfettered decision as to whether to testify on his own behalf. Havens, supra (Brennan, J., dissenting).
The Court also long took the position that any conviction *504based in whole or in part on an involuntary confession was invalid. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The Court specifically rejected as an “impermissible doctrine” the suggestion that admission of a coerced confession could be harmless error. See Lynumn v. Illinois, 372 U.S. 528, 537, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963). The Court based this unbending rule on the highly probative nature of confessions and on juror inability to comply with directions to ignore such evidence. See Arizona v. Fulminante, _U.S__, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (White, J., dissenting), citing Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987) (White, J., dissenting); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (White, J., dissenting). Nevertheless, the Court recently rejected Lynumn and held that harmless error analysis does apply to convictions based in part on admission of a coerced confession. See Fulminante, supra. See, also, Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (confessions resulting from mental or emotional condition which prevents the exercise of free will but which confessions are not the result of coercion are admissible).
The Nebraska Constitution guarantees its citizens the rights to due process of law and against compulsory self-incrimination. See Neb. Const, art. I, §§ 3 and 12. It is time for this court to decide whether these provisions afford persons accused of crime greater protection from the use of coerced confessions than does the federal Constitution. In my view, we should interpret the Nebraska Constitution as continuing to require the exclusion of confessions obtained by any direct or implied promises, however slight. Contrary to the majority’s assertions, under our prior cases using this standard, the trial court erred in admitting Haynie’s confession in this case.
In State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990), this court reversed the conviction of a defendant who confessed to the crimes charged only after a police officer told him that it could help him if he confessed and that it would look better for him if he did confess. The court held that the officer’s statements constituted an implied promise of leniency rendering the confession involuntary as a matter of law and *505therefore inadmissible.
Here, the officer who interrogated Haynie admitted telling Haynie that he would make a report indicating Haynie’s cooperation and that the report would probably be taken into consideration in determining the number of cases filed against him. As in Porter, the officer’s statements were an implied promise of leniency rendering Haynie’s subsequent confession involuntary as a matter of law.
The majority attempts to distinguish Porter by noting that there the interrogator told the defendant he was sure the judge would take the defendant’s cooperation into consideration. However, neither in that case nor in this case did the interrogator promise that the defendant’s cooperation would definitely help him. In both cases the police held out the possibility that a judge or prosecuting attorney might respond favorably if informed of the defendant’s cooperation as an inducement to making a statement. It is this implied promise of leniency which we held impermissible in Porter.
State v. Thomas, 232 Neb. 490, 441 N.W.2d 186 (1989), is similarly unavailing as support for the majority’s decision. In that case the police interrogator did not promise to voluntarily report the defendant’s cooperation, but only speculated as to the effect of such knowledge if the court became aware of it. The majority in the present case errs in focusing on the interrogator’s musings as to the effect of his report on the prosecuting attorney. The improper inducement occurred, however, when the interrogator definitely promised to include in his report that Haynie talked freely, without any hesitation. The discretionary inclusion of such editorial comments, combined with speculation as to their effect on the court, certainly constitutes at least “slight” inducement to make a statement. Because the trial court erred as a matter of law in admitting Haynie’s confession, this cause should be remanded for a new trial.
I also point out that in announcing its “totality-of-the-circumstances” test, the majority lists a number of “potentially material considerations” for the trial judge to address. Because we have never before indicated that such considerations are relevant when a confession is induced, the *506the trial court in this case did not assess the voluntariness of Haynie’s confession in light of these factors. Such an assessment involves factual determinations which this court is not competent to make on appeal. Therefore, in any event, this cause should be remanded to the trial court for a determination of the voluntariness of Haynie’s confession under the court’s new test.