In this criminal case, a police officer unlawfully detained defendant, a passenger in a car that the officer lawfully had stopped for a traffic violation, and then sought and obtained defendant’s consent to search his person. The case requires us to consider whether defendant established a minimal factual link between the illegal detention and his consent to a search of his person during that illegal detention. If he did establish the required link, then the burden shifted to the state to demonstrate that contraband seized during that search was not obtained as a result of an exploitation of the illegal detention. The case presents a further question: Must evidence found and incriminating statements made after defendant was arrested and advised of his rights under Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), be suppressed because they also were the product of the preceding illegal detention? We hold that defendant has shown the required minimal factual connection between the illegal detention and his consent. We also hold that the later administration of Miranda warnings did not sufficiently attenuate the taint of the illegal detention to permit this court to conclude that the defendant’s subsequent incriminating statements, and the evidence found as a result of those statements, were not the product of the prior illegality. We therefore affirm the decision of the Court of Appeals, State v. Ayles, 220 Or App 606, 188 P3d 378 (2008), to that effect.
The following facts are undisputed. On June 7,2005, at 9:47 a.m., state police trooper Hunt observed a car driving 67 miles per hour in 55 miles-per-hour zone on Highway 26. He also noticed that the car did not have a front license plate. Hunt stopped the car for the two violations. The stop occurred some 15 miles east of Seaside, Oregon, and about two miles from the nearest gas station-convenience store. The area was wooded and there were no residences nearby. Hunt approached the driver and noticed that she appeared to be under the influence of methamphetamine. Defendant was sitting in the front passenger seat. Three other people were sitting in the back seat of the car.
*625Hunt explained to the driver why he had stopped the car. When Hunt then asked the driver if there was any methamphetamine in the car, defendant interrupted, asking the trooper how to rectify the license plate situation so that they could avoid being stopped again. Hunt answered defendant’s question. Although defendant had not done anything to cause Hunt to believe that defendant had committed a crime, Hunt found it suspicious that defendant had spoken up while Hunt was questioning the driver about methamphetamine. Hunt’s suspicions also were aroused by defendant’s demeanor, which Hunt described as “over friendly.”
Hunt asked defendant for his identification. Defendant handed Hunt a Department of Veterans’ Affairs identification card. Hunt took it and put it in his patrol car. He then had the driver get out of the car and told her that he suspected that she was under the influence of methamphetamine. He patted her down, did not find weapons or contraband, and told her to sit on the rear bumper of her car. He returned to the patrol car and ran a computer check on defendant and the driver. That check did not reveal anything of interest. Nonetheless, Hunt continued to retain defendant’s identification.
Hunt returned to the car and asked defendant to step out. Defendant did so. Hunt asked defendant if he had any weapons, and defendant replied that he did not. Hunt then asked defendant for consent to pat him down, which defendant gave. Hunt had defendant interlace his fingers and put them to the back of his neck, and then Hunt put one hand on defendant’s hands in preparation for the patdown. From his vantage point at that moment, Hunt could see down into defendant’s right breast pocket, where he observed an unlabeled prescription pill bottle that contained something wrapped in plastic. From Hunt’s training and experience, he believed that the pill bottle contained illegal drugs. He took the bottle out of defendant’s pocket and asked defendant, “Is that the meth?” Defendant admitted that it was. Hunt arrested defendant, handcuffed him, advised defendant of his Miranda rights, searched him more thoroughly, and placed him in the back seat of the patrol car.
*626Hunt then conducted field sobriety tests on the driver and arrested her for driving under the influence of intoxicants. He asked the three remaining passengers to step out of the car. As they were getting out, one of the passengers told Hunt that there was a blue backpack in the car that belonged to defendant. Hunt then went back to the patrol car and asked defendant to step out again. He asked defendant if the backpack was his, and defendant admitted that it was. Hunt then asked defendant if there was any additional methamphetamine in the backpack; defendant replied that there was and described in detail what Hunt would find in the backpack. Hunt searched the backpack and found the methamphetamine as defendant described, as well as other drug paraphernalia.
Defendant was charged with possession and manufacture/delivery of methamphetamine. Before trial, he moved to suppress all of his statements and the evidence obtained after Hunt took his identification. He argued that he was seized in violation of Article I, section 9, of the Oregon Constitution, when Hunt took and retained his identification, because Hunt had no reasonable suspicion at that time that defendant either had committed a crime or posed a threat to Hunt’s safety. The trial court denied the motion. The court ruled that defendant was not illegally seized when Hunt took defendant’s identification. In light of that ruling, the trial court concluded that defendant’s consent to search his person was voluntary, his subsequent arrest was lawful, and the statements that he made after receiving Miranda warnings also were voluntary.1 The trial court then conducted a stipulated facts trial and convicted defendant of the possession offense.
Defendant appealed his conviction to the Court of Appeals, assigning error to the trial court’s denial of his *627motion to suppress. In the Court of Appeals, the state conceded that the taking and retaining of defendant’s identification amounted to an unlawful seizure under Article I, section 9, of the Oregon Constitution. The Court of Appeals accepted that concession as well founded and held that the trial court erred in ruling to the contrary. Ayles, 220 Or App at 611.
The court then turned to the state’s arguments that defendant’s consent to search was not the result of an exploitation of the unlawful seizure, and that the giving of Miranda warnings attenuated the taint of the preceding unlawful police conduct. Id. The court quoted a statement from this court’s opinion in State v. Hall, 339 Or 7, 115 P3d 908 (2005), explaining that a defendant who seeks suppression of evidence obtained from a consensual search on the ground that the search was the product of illegal police conduct bears an initial burden to show a “ ‘minimal factual nexus between the unlawful police conduct and the defendant’s consent.’ "Ayles, 220 Or App at 611-12 (quoting Hall, 339 Or at 34-35). Under Hall, if the defendant has met that burden, then the burden shifts to the state to prove “that the defendant’s consent was independent of, or only tenuously related to, the unlawful police conduct.” 339 Or at 35. The state argued that defendant had failed to make the initial showing required of him in this case. The Court of Appeals rejected that argument, holding that there was a minimal factual nexus between the illegal taking and retaining of defendant’s identification and the ultimate discovery of contraband. The court then went on to hold that the state had failed to “demonstrate! ] the existence of any intervening circumstances or other factors that might mitigate the effect of the illegal detention of defendant.” Ayles, 220 Or App at 613. Finally, the Court of Appeals concluded that the evidence found in defendant’s backpack after he had been handcuffed, arrested, and advised of his rights under Miranda also should have been suppressed because, in this case, the Miranda warnings were not a sufficient intervening circumstance to purge the taint of the previous illegal police conduct. Id. at 616. Accordingly, the Court of Appeals reversed the judgment of the trial court.
The state seeks review of that decision. The state contends that the Court of Appeals erroneously concluded *628that there was a minimal factual nexus between defendant’s consent to search and the prior illegal police conduct simply because the illegal police conduct preceded the giving of consent and the making of statements. The state asserts that defendant was detained not just as a legal matter, by the taking and retaining of his identification, but also as a factual matter, by the lawful stop, in a remote location, of the car in which he was riding. According to the state, the factual considerations trump the legal ones: Because, as a practical matter, defendant could not have left the scene, Hunt’s request for consent to search defendant was causally unrelated to the unlawful police conduct.
Before we begin our analysis of the legal issues presented in this case, we pause to observe how limited the state, as petitioner here, has chosen to make them. First, the state has not asked this court to reconsider Hall. Second, the state does not argue that the Court of Appeals was wrong to conclude that the state had not met its burden to show that the H consent would have occurred independent of the illegality or that the connection between the unlawful stop and the consent was attenuated. Rather, as the state has presented the case to this court, the only issues are whether (1) defendant met his initial burden to show a minimal factual nexus between the unlawful police conduct and his consent to search, and whether (2) the giving of Miranda warnings was a sufficient intervening circumstance, standing alone, to mitigate the taint of the preceding unlawful police conduct on defendant’s later statements about the evidence in the backpack. We turn to those issues.
As the state has acknowledged, defendant was seized in violation of Article I, section 9, of the Oregon Constitution, when Hunt took and retained defendant’s identification without reasonable suspicion of criminal activity. Defendant consented to the search of his person during that illegal seizure.2 That consent was voluntary, i.e., there is no evidence in the record that defendant’s free will was overcome by the illegal police conduct. See Hall, 339 Or at 20-21 *629(suggesting distinction between two ways in which violation of defendant’s rights under Article I, section 9, may affect validity of defendant’s consent to search — situations in which police conduct renders defendant’s consent involuntary, and situations where consent is voluntary, that is, the illegal police conduct does not rise to level of overcoming defendant’s free will, but nevertheless affects defendant’s decision to consent). That is, even when consent is voluntary as a matter of “free will,” evidence obtained as a result of the ensuing search is not admissible unless the state also can “prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendant’s rights under Article I, section 9.” Hall, 339 Or at 27.
As noted above, in Hall, the court described a paradigm for analyzing the effect of an illegal detention on the admissibility of evidence obtained from a subsequent “consensual” search:
“After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant’s consent, then the state has the burden to prove that the defendant’s consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant’s consent. * * * Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances — such as, for example, a police officer informing the defendant of the right to refuse consent — that mitigated the effect of the unlawful police conduct.”
Id. at 34-35. And, as noted above, this case requires us only to examine what is required for the defendant to establish the “minimal factual nexus” that is mentioned in the first sentence of the foregoing paragraph.3
*630The state argues that, in this case, defendant has not proved that there was any factual nexus, even a minimal one, “between the illegal stop — the taking and retaining of defendant’s identification — and the trooper’s request for consent to pat down defendant,” because (1) defendant was a passenger in a car that was lawfully stopped in a remote location when the officer asked defendant for that consent, and (2) according to the state, there was evidence in the record that Hunt would have asked defendant for consent to search him even if Hunt had not asked defendant for identification. And, the state argues, “if the only preceding illegality — the taking and retaining of defendant’s identification — was not causally related to the trooper’s request for defendant’s consent to a patdown, then there was no taint to purge.” As the state stresses, “ ‘[b]ut for’ causation may require only a ‘minimal factual nexus,’ Hall, 339 Or at 25, but it is not devoid of all meaning and it is not the equivalent of post hoc ergo propter hoclT
There are two problems with the state’s argument. First, it misunderstands the Hall analysis. Second, it misunderstands the undisputed facts of the encounter. With respect to the first point, Hall requires the defendant to *631establish a “minimal factual nexus between unlawful police conduct and the defendant’s consent,” not the police officer’s request for consent. That is, the focus of the factual nexus determination is not on whether Hunt’s decision to ask defendant for consent was caused by his taking of defendant’s identification; rather, it is on whether defendant would have consented to the search that uncovered the evidence if the officer had not unlawfully seized him. The second problem with the state’s theory lies in its assertion that the only factual nexus that defendant has shown is that the unlawful police conduct preceded his consent. As noted, however, the illegal seizure did not simply precede the consent— it was ongoing at the time defendant gave his consent to the search; therefore, the two events were not just in close “temporal proximity,” Hall, 339 Or at 35, but were occurring simultaneously.
When we apply the law, properly understood, to the facts of the case, we conclude that defendant met his burden to establish a minimal factual nexus between the illegal police conduct and his consent to search. During defendant’s unlawful seizure, defendant was not free to leave. The unlawful police conduct thus made defendant available to Hunt for questioning. Although the state asserts that, as a practical matter, defendant would have remained at the scene regardless of the illegal seizure (because his driver had been lawfully stopped and the location of the stop was somewhat remote), the state has pointed to no evidence in the record that defendant would not have left had he not been illegally detained. Indeed, the state’s only argument on that point is that the nearest convenience store was about two miles away and the stop of the driver occurred 15 miles east of Seaside. Those facts alone do not establish that it would have been impossible, or even extremely difficult, for defendant to leave the scene. But our point is an even more fundamental one: Whether or not defendant would have asserted his personal liberty and left the scene once his identification was returned to him, we cannot conclude that the illegal seizure of defendant, while it was ongoing, had no factual nexus to defendant’s decision to consent. A defendant gains nothing from having a constitutional right not to be seized if the police can seize him and — by definition — use the circumstance of that *632seizure as a guarantee of an opportunity to ask him to further surrender his liberty. There was a minimal factual nexus between defendant’s illegal seizure and his decision to consent.
This court’s recent decision in State v. Thompkin, 341 Or 368, 143 P3d 530 (2006), provides strong support for that conclusion. In Thompkin, a police officer requested and retained the defendant’s identification during a lawful stop of the car in which defendant was a passenger. At that time, the officer did not have either a reasonable suspicion of criminal activity on the defendant’s part or a concern for the officer’s own safety. While the defendant was seized, an officer asked the defendant if she had any drugs or weapons on her person. In response, the defendant handed the officer a crack pipe. The officer then asked the defendant if she would consent to a search of her person. Defendant responded by getting out of the car and complying with the request to search. The ensuing search revealed a rock of crack cocaine.
This court held that the defendant had been unlawfully seized for purposes of Article I, section 9, of the Oregon Constitution, when the officer took and retained her identification without either reasonable suspicion of criminal activity or of a threat to his safety. Id. at 379. It then turned to the question whether suppression of the evidence obtained during that illegal seizure was required. The court began by setting out the Hall analysis to be used in situations such as these, then emphasized that,
“[o]nce a defendant demonstrates a minimal factual nexus between prior, unlawful police conduct and the evidence sought to be suppressed, deciding whether the state has carried its burden requires a fact-specific inquiry into the totality of the circumstances.”
Thompkin, 341 Or at 380. The court acknowledged that, in Hall and the cases that Hall relied on, the defendants consented to be searched during an unlawful seizure, whereas in Thompkin, the defendant directly surrendered incriminating evidence in response to police questioning during an unlawful seizure — but the court held that those slight factual differences were of no constitutional moment. Thus, the court held, because of the close temporal proximity between the *633illegal seizure of the defendant and her surrender of the crack pipe, as well as the absence of any intervening circumstances attenuating the effects of the unlawful police conduct, “the state failed to prove that [the] defendant’s decision to surrender incriminating evidence, even if voluntary, was not the product of the preceding violation of her rights under Article I, section 9.” Id. at 381. It followed, the court held, that the evidence obtained during the unlawful seizure had to be suppressed. Id.
The state points out that the court in Thompkin did not expressly find that the defendant there had established a “minimal factual nexus” between the unlawful police conduct and her surrender of incriminating evidence in response to police questioning; rather, the court appeared to have assumed such a connection without considering the matter. And, the state suggests, had the court properly considered the question, it would have concluded that, as here, there was no causal connection between the unlawful seizure and the defendant’s subsequent incriminating action.
We disagree. It is true that, in certain of this court’s cases, including Thompkin and even Hall itself, the court has not expressly found the existence of a minimal factual connection between illegal police conduct and a defendant’s decision to consent. Rather, the court in those cases appears to have assumed without discussion that the defendant had met that initial burden by establishing that the defendant had consented to a search during an illegal seizure. The court merely stated the requirement of a minimal factual nexus and then proceeded immediately to an examination of whether the state had met its burden to prove that the connection was too tenuous to require suppression.
On the other hand, the state has cited no case, and our research discloses none, in which a court has found the absence of a minimal factual nexus between an unlawful seizure that is ongoing and a defendant’s decision to consent to an officer’s request to search. We think that the reason both that the court sometimes assumes without discussion that a defendant has shown the required nexus when consent occurs during an ongoing seizure and that no case exists *634holding that there is no minimum connection in such circumstances is that the existence of a minimal factual nexus is obvious in cases in which the defendant consents to a search (or takes other incriminating action) during an illegal seizure. That conclusion is reflected in this court’s recent decision in State v. Rodgers / Kirkeby, 347 Or 610, 227 P3d 695 (2010). In that case, without any discussion or explanation, this court expressly concluded that the defendants in that case “ha[d] shown the required nexus” by showing that they consented to be searched during a period of unlawful detention. Id. at 629-30.
To summarize, then, we agree with the state that the “minimal factual nexus” standard is a true standard, not a resort to the logical fallacy, “post hoc ergo propter hoc.” However, a defendant establishes a more substantial connection than merely one thing occurring after another when that defendant establishes that he or she consented to a search during an unlawful detention. In such a circumstance, the fact that the defendant is not legally free to leave because of the illegal police activity cannot be discounted in motivating the defendant’s consent and, therefore, such illegal police conduct normally will be at least minimally connected to the defendant’s decision to consent.4 We hold that this is such a “normal” case — i.e., defendant in this case met his initial burden, thereby shifting the burden to the state to prove that the evidence obtained did not derive from exploitation of the unlawful police conduct. As noted, the posture of this case makes that remaining inquiry a narrow one. The state has not argued that it did or could meet its burden to prove that defendant’s consent to search was independent of, or only tenuously related to, Hunt’s unlawful seizure of defendant in violation of Article I, section 9, of the Oregon Constitution. Therefore, as the Court of Appeals correctly concluded, the trial court should have suppressed the evidence found in the ensuing search — viz., the prescription pill bottle containing methamphetamine.
*635We turn to the second part of the state’s argument— that, after defendant was given Miranda warnings, the incriminating statements that he made, and the evidence eventually found in his backpack, were admissible notwithstanding the prior illegality. The state asserts:
“In the state’s view, the giving of Miranda warnings always suffices to break the chain between a prior illegality and post -Miranda admissions or statements. Even if that is not true, at a minimum the giving of the warnings is an extremely strong indicator that post -Miranda statements were not obtained through exploitation of the prior illegality.”
The state also argues that, in holding that the Miranda warnings did not attenuate the taint of the preceding illegality, the Court of Appeals improperly minimized the effect of those warnings in this case. In fact, according to the state, the Court of Appeals went so far as to suggest that the giving of Miranda warnings itself has a coercive effect that negates the voluntariness of the subsequent statements, when the court stated that the warnings
“ ‘could perpetuate the person’s perception that his or her liberty continued to be restrained as the officer pursued a criminal investigation by seeking consent to a search.’ ”
Ayles, 220 Or App at 614 (quoting State v. La France, 219 Or App 548, 557, 184 P3d 1169 (2008)). On the contrary, the state notes, this court stated in Thompkin that Miranda warnings could, in fact, be an intervening circumstance adequate to break the causal chain between the defendant’s statements and the prior illegality. See Thompkin, 341 Or at 380 (so stating). The state then concludes that where (as it characterizes the situation), “the prior illegality amounted only to taking and retaining defendant’s identification[,] * * * the [later] giving of Miranda warnings, followed by defendant’s admission that more methamphetamine was in his backpack, served to dissipate the taint of the illegal proceeding.”
We agree with the state that the Court of Appeals’ statement creates an incorrect impression: The giving of the warnings, which is intended to assure voluntariness, cannot be used in the way that the Court of Appeals used it to prove *636a contrary theory. To be sure, it is clear from context that the Court of Appeals was not talking specifically about coercion or the voluntariness of post -Miranda statements at all. Rather, the court merely made the observation that, in the “totality of the circumstances” surrounding a defendant’s consent to search during an ongoing unlawful seizure, the Miranda warnings themselves could have an effect on a defendant’s feeling that his liberty was being restrained and, therefore, on his consequent decision to consent. We think, however, that the court’s statement is too prone to misinterpretation, and therefore should not be used in this way again.
We return to the central issue. As with defendant’s consent to search, defendant concedes that the statements that he made in response to Hunt’s questions after Hunt administered the Miranda warnings were voluntary — that is, they were not actually coerced by police conduct that overcame his free will. Nonetheless, like the evidence found after defendant’s consent to search, those statements, and the methamphetamine and related paraphernalia found as a result of those statements, are inadmissible unless the state can demonstrate that the statements and evidence did not derive from the preceding illegal seizure of defendant’s person.5 Again, Hall provides the paradigm for our analysis of whether the state has met that burden. For convenience, we repeat that paradigm here:
“Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant’s consent. * * * Although determining the existence of *637such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances — such as, for example, a police officer informing the defendant of the right to refuse consent — that mitigated the effect of the unlawful police conduct.”
339 Or at 35. As noted, the state argues that the giving of Miranda warnings was an “intervening circumstance” sufficient to attenuate any taint from Hunt’s unlawful conduct in taking and retaining defendant’s identification.
Hall requires us to conduct a “fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct” and the statements and evidence that defendant asks be suppressed. In this case, that totality of the circumstances includes the fact that Hunt gave defendant the Miranda warnings after Hunt arrested defendant for possessing the prescription pill bottle containing methamphetamine. That arrest was unlawful because it was based on evidence found in an unlawful search of defendant’s person. Moreover, after defendant’s arrest, and at the time that Hunt asked defendant about the backpack, defendant was handcuffed and in custody in the back of a patrol car. Hunt’s questions pertained to defendant’s possession of additional quantities of the same drug that he had already been arrested for possessing, and, at the time of the questioning, Hunt was holding the backpack that contained those drugs. Those facts all suggest that the initial unlawful police conduct — the unconstitutional seizure of defendant’s person — affected defendant’s actions from his initial consent to be searched through the time that he responded to Hunt’s questions about the backpack. That is, the “temporal proximity’ factor plainly weighs in defendant’s favor.
The question then is whether, notwithstanding those ongoing effects of the prior illegality, the state has met its burden to show that the Miranda warnings alone (the state has pointed to nothing else) were sufficient to ensure that the unlawful police conduct did not affect, or had only a *638tenuous connection to, defendant’s responses to Hunt’s questions or the later discovery of the methamphetamine in the backpack. This court considered a very similar question in State v. Olson, 287 Or 157, 598 P2d 670 (1979). In that case, the police had probable cause to arrest defendant for burglary. They went to his house late in the evening and knocked and announced their presence. After receiving no response, the officers opened the defendant’s door, entered his house, and found the defendant in bed with his girlfriend. They then searched the house without a warrant and, finding some items taken in the burglary, arrested the defendant and advised him of his Miranda rights. The defendant subsequently confessed. In deciding that the defendant’s statements must be suppressed, the court stated,
“The burden is also upon the state to prove that despite the illegal entry, arrest and search, the incriminating statements and ultimate confession were acts of defendant’s free will and that the primary taint of illegality was thus purged. It can be contended that the receiving of the Miranda warning by defendant was such an intervening circumstance indicating voluntariness. In Brown v. Illinois, 422 US 590, 602, 95 S Ct 2254, 45 L Ed 2d 416 (1975), as here, incriminating statements were made almost immediately upon defendant’s arrest followed shortly by a more detailed statement of the crime. There the Court suppressed the statements, which it found to be the product of an invalid arrest and search, even though given after a Miranda warning. Such a warning is evidence which may be considered in deciding whether a statement or a confession was unaffected by an illegal arrest and search. That decision is dependent upon all the circumstances, and we believe that in the present case the warning is inadequate to relieve the obvious taint resulting from breaking in, arresting defendant, and searching the premises.”
Olson, 287 Or at 166.
We think that here, as in Olson, the Miranda warning is “inadequate to relieve the obvious taint” of the unlawful police conduct. Given that defendant’s illegal seizure led to an illegal search of defendant’s person that revealed defendant’s possession of a controlled substance and that that discovery, in turn, led to defendant’s arrest (which triggered the giving of the Miranda warnings), it is impossible to conclude *639that the Miranda warnings alone were adequate to break the causal chain between the illegal police conduct and the subsequent incriminating statements and discovery of evidence. The Court of Appeals correctly held that the trial court should have suppressed defendant’s statements in response to Hunt’s questions along with the evidence found in defendant’s backpack.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
The trial court noted, however, that, if the taking and retaining of defendant’s identification were considered an illegal detention, then suppression would have been required because, the trial court found,
“[d]efendant’s identification was held during the stop where a reasonable person would not feel free to leave. The consent for search was in close proximity to obtaining defendant’s identification and asking him to exit. The state did not produce any evidence regarding inevitable discovery, independent discovery or a tenuous factual link that would still allow the search.”
This, therefore, is not a case in which the unlawful police conduct merely “preceded” defendant’s giving of consent. The record is clear that the unlawful detention here was ongoing — Hunt continued to retain defendant’s identification— when defendant gave his consent to the search.
It is important to emphasize again that we need not determine whether the state has met its burden to show that there is no causal connection between the *630preceding illegality and defendant’s consent that would require suppression of the evidence found as a result of the ensuing search. That is so because the state did not argue below, and does not argue in this court, that, if defendant had not established the requisite minimal factual nexus, the state did or could meet its burden to prove that defendant’s consent (and the consequent discovery of the prescription pill bottle containing methamphetamine) was independent of, or only tenuously related to, the unlawful police conduct. As noted, the trial court observed that “[t]he state did not produce any evidence regarding inevitable discovery, independent discovery or a tenuous factual link that would still allow the search.” 348 Or at 626 n 1. The state has never challenged that observation.
The dissent does not acknowledge this posture of the case. The dissent states:
“As a matter of causation, two independent causes prevented defendant from leaving. One was lawful; the other was not. Under those circumstances, any causal connection between the retention of defendant’s identification card and his voluntary consent to the patdown search was so faint that defendant’s voluntary consent was sufficient to break the causal chain.”
348 Or at 646 (Kistler, J., dissenting). The dissent then goes on to explain why, in its view, the state had met its burden to prove attenuation with respect to the consent to the patdown search. The problem with the foregoing, of course, is that it purports to explain why the state should prevail here, when the state did not argue the dissent’s theory either to this court or to the Court of Appeals. The state is the petitioner here. It must live with what it has raised and argued — a small enough requirement, but one from which the dissent is not entitled to relieve it.
We say “normally,” because this is not a per se rule. Among many other sce-j narios, it is always possible that the state will be able to produce, for example, an admission by defendant to some other person to the effect that he would have remained at the scene or consented in any event.
As we held in the first part of this opinion, defendant met his initial burden to establish a minimal factual nexus between the illegal police conduct and his decision to consent to the first patdown of his person. The burden then shifted to the state to prove that all of defendant’s subsequent statements, including his later consent to the search of his backpack, and the evidence discovered as a result of those statements, including the drugs and paraphernalia found in the backpack, did not derive from exploitation of the illegal seizure of his person. As noted, the state did not argue that it had met its burden with respect to the evidence found in the search of defendant’s person. However, the state does argue that defendant’s consent to the search of his backpack was so attenuated from the initial illegal police conduct that the evidence found therein should not be suppressed.