concurring in part and dissenting in part.
I agree with the majority’s conclusion that the police unlawfully stopped defendant under ORS 131.615(1) (1995) and, thus, unlawfully seized him under Article I, section 9, of the Oregon Constitution.
The larger question in this case, however, concerns defendant’s claim that the trial court erred in refusing to suppress the evidence that Officer Deese searched for and seized from defendant’s pocket during the unlawful stop. According to the record, Deese stopped defendant, saw bulges under his jacket, and asked for permission to search defendant’s person. In response, defendant gave his voluntary consent to the requested search.1
In this court, defendant acknowledges that his consent was voluntary, but argues that the court should disregard his voluntary consent because Deese exploited the prior *38illegal stop to obtain permission to search. Defendant does not argue that the trial court must reexamine the voluntariness of his consent in light of the unlawfulness of the initial stop and seizure.
Reduced to its essence, defendant’s argument asserts that he is entitled to the suppression of the evidence that Deese obtained from defendant’s pocket notwithstanding defendant’s voluntary consent to the exact search that Deese performed. The majority accepts that argument and requires suppression of the evidence on the theory that defendant’s consent was the “product” of the unlawful initial stop and that the state did not show that the consent was “independent of,” or was “only tenuously related to,” the unlawful stop. 339 Or at 36-37.
If Officer Deese had unilaterally searched defendant’s pocket without consent, or coerced defendant such that he overcame defendant’s free will, then the majority’s answer would be correct. But the fact that defendant voluntarily consented to the search makes (or should make) the crucial difference in the legal analysis of the reasonableness of the resulting search.
Instead of focusing correctly on the voluntariness of defendant’s consent, as our cases require, the majority’s analysis turns on facts that simply are inapposite, such as the fact that defendant’s consent (even though voluntary) was “not spontaneous” because Deese requested consent to search. Id. at 44. Similarly, the majority emphasizes that Deese’s request occurred immediately after Deese had questioned defendant about whether he was carrying any weapons or illegal drugs and while he was waiting for the results of a warrant check. Id. at 44-45. Those facts lead the majority to conclude that the state has failed to prove “that defendant’s decision to consent, even if voluntary, was not the product of the preceding violation of defendant’s rights under Article I, section 9, [ ] ” and, consequently, the unlawful stop vitiates defendant’s consent. Id. at 45.
The majority’s approach is erroneous because it accords no analytical weight to the key fact of defendant’s voluntary consent to the search. Instead, the majority’s analysis turns on whether the fact that allowed the search to occur — ■ defendant’s voluntary consent — was the “product” of (that is, *39whether the consent is the causal result of) the unlawful stop. According to the majority, because that causal relationship exists (or, rather, because the state failed to prove that that relationship did not exist), the resulting search is unconstitutional notwithstanding the voluntariness of defendant’s consent to the search. But that reasoning blurs the distinction between the circumstances of the stop that have a mere “but for” causal link with the search and the one fact that was the genuine cause of the search. Because its view of the causation inquiry is faulty, the majority simply fails to assess the significance of the fact that triggered the search of defendant’s pocket: defendant voluntarily consented to the search. The majority’s resulting conclusion — that Deese’s search of defendant’s pocket was unreasonable and, thus, unlawful even though defendant voluntarily consented to the search— is a difficult pill to swallow.
The majoritys reasoning represents a significant departure from the principles that have guided this court in previous consent search cases. First and foremost, this court has approved of the suppression of evidence only where the police conduct that brings the disputed evidence to light constitutes an unreasonable invasion of privacy. Here, Officer Deese’s stop of defendant unquestionably was an unreasonable seizure, but the act of stopping defendant did not expose the disputed evidence to Officer Deese. The discovery of the disputed evidence occurred only after defendant gave his voluntary consent to a search of his person. That is the legally dispositive fact. Defendant’s voluntary consent to the search demonstrates that the disputed evidence came to light as the result of a reasonable, not unreasonable, search.
The majoritys approach effectively cancels the legal significance of defendant’s voluntary consent and treats the officer’s simple act of asking for permission to search as if it were an invasion of privacy. Heretofore, police officers properly have understood that there is no harm in asking for voluntary consent to conduct a search. After today, that understanding is in jeopardy. As the following discussion demonstrates, the majority’s analysis results in a suppression of evidence without the necessary predicate that our cases require: an unreasonable invasion of privacy. Accordingly, I respectfully dissent from that aspect of the majoritys opinion.
*40Article I, section 9, creates a right in the people to be “secure * * * against unreasonable search, or seizure * * *.”A “search” occurs when the police invade a person’s privacy interest in their persons, houses, papers, and effects. A “seizure” occurs when police significantly interfere with a person’s possessory or ownership interests in property. See State v. Owens, 302 Or 196, 206-07, 729 P2d 524 (1986) (applying those definitions). This court vindicates that constitutional right in a criminal prosecution by suppressing evidence that the government has obtained in violation of that right. Thus, a key question in the resolution of defendant’s motion to suppress evidence is whether the police “obtained” the evidence in defendant’s pocket “in violation of’ defendant’s constitutional right to privacy.
Because defendant’s motion seeks suppression of evidence that Deese searched for and seized without a warrant, the state bears the burden to demonstrate that Deese’s search and seizure actions were reasonable and, therefore, lawful. Despite the absence of a warrant, a search or seizure is reasonable under Article I, section 9, if the police comply with the requirements of one or another of the recognized exceptions to the warrant requirement. See State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992).
The state relies here on the exception for searches and seizures conducted pursuant to a legally valid consent. The consent exception to the warrant requirement applies if the state demonstrates that someone with authority to do so voluntarily gave the police consent to search the defendant’s person or property and that the police complied with any limitations on the scope of the consent. State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994).
A violation by police of a defendant’s rights under Article I, section 9, may affect the validity of a subsequent search to which the defendant apparently has consented because the police conduct renders the defendant’s consent involuntary. See id. at 219. The state has the burden of proving voluntariness by a preponderance of the evidence. State v. Stevens, 311 Or 119, 137, 806 P2d 92 (1994). The trial courts bear the initial responsibility to determine whether the state has satisfied that burden by examining whether, *41under the totality of the circumstances, the defendant’s consent was an act of free will, or, instead, resulted from express or implied police coercion. See State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983). The totality of circumstances certainly includes the individual’s responses, emotional and physical state, maturity and sophistication. See Wayne R. LaFave, 4 Search and Seizure § 8.2(e), 90-93 (4th ed 2004). But it also embraces the manner by which the officer conveys his request, including an admonition — if any is given — that the individual is not required to consent to a search, and whether the officer, by word or deed, seeks to hasten a consent or otherwise to bring added pressure to bear on the individual. The point of the trial court’s comprehensive factual inquiry is to assure that the invasion by police of the individual’s constitutionally protected privacy interest is the product of an authentic voluntary choice and not mere resignation to the authority of the police or the exigencies of the stop or arrest.
Police assertion of authority or control over an individual, either through an arrest or a lesser seizure, bears distinctively on the question of voluntariness whether or not the police conduct is lawful. That is so because an officer’s assertion of control over a person’s liberty implies the further authority to maintain that control and, incident to that control, to search the person and seize any contraband. See LaFave, 4 Search and Seizure § 8.2(d) at 79-80 (discussing principle and citing authorities). If a defendant consents in acquiescence to a claim of lawful police authority, the trial court properly should conclude that the lawfulness of the assertion of police authority determines the vohmtariness of the resulting consent. See, e.g., State v. Williamson, 307 Or 621, 626-27, 772 P2d 404 (1989) (Carson, J., concurring). By contrast, unlawful police conduct can affect a defendant’s capacity to exercise his or her free will and, thus, may undermine the voluntariness of a consent to search for purposes of Article I, section 9. State v. Rodriguez, 317 Or 27, 38-39, 854 P2d 399 (1993). Finally, under certain circumstances, the police conduct, even if lawful, may coerce the defendant into consenting. A coerced consent, by definition, is not voluntary. See Rodriguez, 317 Or at 38 n 13.
In this case, as noted above, defendant asserts no challenge to the trial court’s implicit conclusion that defendant voluntarily consented to Deese’s request to search his *42pocket.2 Neither does defendant raise any question about Deese’s adherence to the scope of the consent granted. Defendant does not contend that the trial court’s error in concluding that Deese neither stopped nor seized defendant somehow undermines, or requires reconsideration of, the trial court’s determination that defendant’s consent to the later search of his person was voluntary. Defendant’s sole contention is that state and federal law requires suppression of the evidence that Deese searched for and seized from defendant’s pocket, notwithstanding defendant’s voluntary consent to that search, because suppression is necessary to vindicate the earlier violation of defendant’s rights, i.e., the unlawful stop.
Defendant rests that argument on an application of the “fruit of the poisonous tree” doctrine that this court’s cases have discussed. Although I ultimately reject defendant’s argument, I note that not all our cases have discussed that doctrine in a consistent manner. For that reason, I discuss in detail why the contents of defendant’s pocket are not subject to suppression under the “fruit of the poisonous tree” doctrine.
Under the “fruit of the poisonous tree” doctrine, this court examines the nature of the connection between unlawful police conduct and the evidence that the defendant seeks to suppress. In State v. Kennedy, 290 Or 493, 624 P2d *4399 (1981), this court, relying on an explanation of that doctrine by the United States Supreme Court, confirmed that more is required to justify a suppression of evidence than a mere “but for” causal link between the evidence and a prior police illegality:
“The United States Supreme Court has held that the existence of a police illegality does not automatically require suppression of evidence discovered subsequent to that illegality. In Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 LEd 2d 441 (1963), the Court rejected a “but for’ test which would require that evidence must be suppressed if it would not have been discovered “but for’ the illegal police actions. Instead, the Court said:
“ ‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ 371 US at 487-88.”
Id. at 500.
The determinative issue under that doctrine is whether, assuming an initial police illegality, the police have obtained (“come at”) the challenged evidence by an exploitation of that illegality or, instead, have obtained it by means sufficiently distinguishable to be purged of the taint of the initial police illegality. When applying that doctrine, we always must keep in mind two distinct policy justifications that bear on the answer to that issue.
The first is that the predicate for Oregon’s exclusionary rule is the court’s responsibility to vindicate the invasion by the police of a defendant’s personal rights under Article I, section 9, in obtaining evidence. This court has held that an individual’s personal right to be free from unreasonable searches and seizures under that provision also embraces a right to deny the state any ability to use evidence obtained in violation of that right to convict the individual of a crime. See *44State v. Davis, 313 Or 246, 249, 834 P2d 1008 (1992) (recognizing principle). Oregon’s rights-based exclusionary rule stands in contrast to the deterrence-based rationale that underlies Fourth Amendment jurisprudence. Because our exclusionary rule rests on a theory of protection of a personal right, the exclusion of evidence follows only from a demonstration that the police obtained the evidence by violating a right secured by Article I, section 9. See State v. Smith, 327 Or 366, 379-80, 963 P2d 642 (1998) (where evidence obtained after, but not by virtue of, unlawful police conduct, suppression not required).
The second is that, when determining whether the facts require the exclusion of evidence, this court seeks to restore a defendant to the same position as if “the government’s officers had stayed within the law.” Davis, 295 Or at 234. Thus, the fact that evidence comes to police attention following, or due only to “but for” causation by, police misconduct is insufficient to require a suppression remedy. Instead, the police misconduct, rather than some other independent agency, must be the source that causes the police to obtain the disputed evidence. For example, a showing that the observance of lawful procedures inevitably would have brought the evidence to light would obviate the need for suppression. See State v. Johnson, 335 Or 511, 526, 73 P3d 282 (2003) (discussing inevitable discovery of evidence).
Relying on the above-cited authorities, defendant argues that Deese exploited the unlawful stop, because he was in a position to observe the bulges in defendant’s coat solely by reason of the unlawful stop. Defendant claims that the bulges in the coat, in turn, motivated Deese to request consent to engage in a search of defendant’s person and that that request led immediately to the discovery of the disputed evidence. According to defendant, nothing attenuated the taint of the unlawful stop and its close factual connection to the discovery of the contents of defendant’s pocket.
Defendant’s arguments fail because they do not acknowledge the role of defendant’s voluntary consent in Deese’s discovery of the disputed evidence. In explaining that conclusion below, I demonstrate why several cases on which defendant relies in reality lend him only superficial support.
*45In State v. Quinn, 290 Or 383, 623 P2d 630 (1981), this court, relying on Wong Sun, emphasized that whether a police illegality creates a “taint” on a subsequent search or seizure of evidence depends on the influence of the illegality on the defendant’s exercise of free will in apparently consenting to the search or seizure, and does not depend on the influence of the illegality as a source of police knowledge. This court stated:
“The nature of the causal relationship between unlawful police action and subsequently obtained evidence, which triggers the exclusionary rule, was considered in the leading case of Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963), in which the United States Supreme Court elaborated on * * * ‘fruit of the poisonous tree’ doctrine. Under Wong Sun, the influence of the illegality on defendant’s exercise of will, rather than the source of police knowledge, determines whether there is taint. The facts of the case illustrate this principle. Two statements were involved in Wong Sun: one by Toy and one by Wong Sun. Government agents unlawfully entered and searched Toy’s home. Toy then and there confessed that he had obtained narcotics from one Yee. The agents then went to Yee who surrendered heroin to them. Yee said he obtained it from Toy and Wong Sun. The latter two were arrested and released on recognizance. Several days later, Wong Sun visited the agents. Upon being advised of his rights, Wong Sun made a statement. The United States Supreme Court required suppression of Toy’s confession because it was a direct result of the agents’ unlawful entry. Wong Sun’s statement, however, was held admissible because it was the product of intervening events and not the product of the unlawful entry even though the police had learned of Wong Sun’s involvement in a chain of events which began with the unlawful arrest.
“In so holding, the court rejected what might be called the ‘but for’ test under which evidence must be excluded if any link in the chain of circumstances leading to the evidence involves unlawful police action. Were that the rule, Wong Sun’s confession would have been suppressed. Rather, the dispositive consideration was whether Wong Sun’s decision to make a statement was a result of the illegality or due to other factors.”
Id. at 395-96 (footnote omitted; emphasis added).
*46Although I criticize below another aspect of the holding in Quinn, the passage quoted above states Oregon law correctly. Under the principle from Quinn emphasized above, the trial court’s wide-ranging inquiry into the voluntariness of the defendant’s consent to a search or seizure subsumes an assessment of the impact of any police illegality on the defendant’s exercise of will in granting consent. In the consent search context, the determinitive issue is whether the defendant decided to consent voluntarily or, instead, decided to do so due to other factors, such as any taint resulting from unlawful police conduct. The police illegality, as Quinn noted, may provide the police with information which, in turn, may motivate them to request consent. However, the decisive inquiry in the consent context is not the police motive for seeking consent but whether the defendant’s consent, under all the circumstances, was voluntary.
Another aspect of the analysis stated in Quinn deserves further comment. Quinn involved an unlawful search of the defendant’s vehicle during which the police discovered a pair of women’s underwear that linked the defendant to a murder. Without informing the defendant of their discovery, the police sought and obtained the defendant’s consent to search the vehicle. The police searched the vehicle again, seized the underwear, confronted the defendant with that evidence, and obtained the defendant’s confession to the murder.
On review before this court, the defendant challenged the admissibility of the underwear under Article I, section 9. Purporting to apply the rule in Wong Sun, this court rejected the defendant’s assertion that the initial unlawful vehicle search had tainted his decision to consent to the second search. The court reasoned that the defendant had no knowledge of the illegal first search of the vehicle and, therefore, that illegality could not “taint” his voluntary consent to the second search.
The Quinn court’s reliance on the defendant’s lack of knowledge of the first vehicle search may have been an error, although a determination of that issue, strictly speaking, is not essential to the correct resolution of this case. The first vehicle search was itself an unconstitutional invasion of the *47defendant’s right to privacy under Article I, section 9. Thus, and even if the police later seized the underwear after a second search with the defendant’s valid consent, the defendant nevertheless may have been entitled to the suppression of that evidence to vindicate the violation by the police of his constitutional right of privacy during the first vehicle search. I leave for another day whether this court should so hold in a case that presents that question.
Here defendant contends that, despite the voluntariness of his consent, the illegal stop disadvantaged him by affording the officer the opportunity to see the bulges in his jacket, thus creating the motivation to seek consent to search. Defendant argues that suppression is necessary to restore him to the position that he would have occupied had the officer not stopped him illegally.
My previous discussion of Quinn undermines defendant’s premise that a police illegality that precedes a consent to search mqy require suppression of evidence because, apart from its impact on the voluntariness of consent, it affords the police information that motivates them to seek consent to search. Despite that problem, defendant purports to find support for his position in Rodriguez and Kennedy. For the reasons discussed below, I disagree.
In Rodriguez, a governmental agent arrested the defendant at his apartment and asked whether the defendant had any drugs or guns in the apartment. The defendant responded by saying, “No, go ahead and look.” The agent questioned whether the defendant meant to authorize a search, and the defendant again stated his willingness to permit a search. The governmental agents searched the apartment and discovered two guns. 317 Or at 29-30.
On review, this court assumed that the arrest was unlawful but rejected the claim that Article I, section 9, required suppression of the guns. The court noted at the outset that the case presented no challenge to the trial court’s determination that the defendant had consented voluntarily to the search of his apartment. Id. at 38. Despite certain shortcomings that I note below, Rodriguez properly determined that the conduct of the governmental agents did not undermine the legitimacy of the defendant’s consent to a *48search. The court also correctly observed that, where a police illegality precedes a consent to search, suppression of evidence was an appropriate remedy only if the police obtained the evidence in violation of a defendant’s rights. Id. at 39.
The Rodriguez court provided two examples in which the facts would justify suppression. The first involved unlawful police conduct that undermined the voluntariness of consent. Id. at 38. The second involved an unlawful search or seizure that preceded a consent search:
“Where, as here, the question of the voluntariness of the consent has not been raised, or where the court has determined that the consent was voluntary, unlawful police conduct occurring before a consent search still may affect the admissibility of evidence seized during that search. This is so because that unlawful conduct — either an unreasonable search or an unreasonable seizure — occurring before the consent search was a violation of the defendant’s rights, even if the consent search by itself was not. Put differently: There may be cases in which suppression of evidence obtained during a consent search may be necessary to vindicate a defendant’s rights that were violated by earlier, unlawful police conduct.”
Id. at 39.
I note that the Rodriguez court’s second example, quoted above, reflects precisely the facts in Quinn, i.e., an illegal search that preceded a voluntary consent to conduct roughly the same search. Consistently with my preceding discussion of Quinn, I conclude that, if those facts require suppression, it is not because the police have exploited an illegality to obtain consent, but because the initial unconstitutional invasion of the defendant’s privacy by the police brought the challenged evidence to light notwithstanding the defendant’s subsequent consent. Properly understood, the court’s second example entailed the ordinary remedy — suppression — for an unlawful search, not an instance of the exploitation of a prior illegality that taints the voluntariness of a later consent.
Relying on its example of a purported “exploitation” of a police illegality, the Rodriguez court explained:
*49“We think that evidence obtained during such a search should be suppressed only in those cases where the police have exploited their prior unlawful conduct to obtain that consent. Only where such exploitation occurs can it be said that the evidence discovered subsequently was ‘obtained in violation’ of a defendant’s rights under Article I, section 9.”
Id. at 40.
I conclude that that attempted statement of the pertinent issue comes up short.3 As the passage from Quinn quoted above demonstrates, 339 Or at 45-46, the initial question under Wong Sun is whether the police have come at the disputed evidence, not merely the facts that motivate the police to seek the defendant’s consent, by exploiting a primary police illegality. Additionally, Wong Sun requires a determination whether, notwithstanding the prior illegality, the police have acquired the evidence by means sufficiently distinguishable to be purged of the primary taint. A defendant’s voluntary choice to consent to a search, notwithstanding a prior police illegality, can affect significantly the answer to each issue that Wong Sun describes. Finally, Rodriguez, failed to focus on the pivotal principle from Quinn, i.e., that the factor that determines whether a prior police illegality “taints” a discovery of evidence in a consent search is the influence of the illegality on the defendant’s exercise of will, not whether the illegality is a source of police knowledge.
Although the Rodriguez decision cited the Quinn case, it failed to follow correctly the “fruit of the poisonous tree” analysis that Quinn prescribed. The Rodriguez court should have determined, in accordance with Quinn, that, following the police illegality, the defendant had voluntarily consented to the search that produced the disputed evidence, the defendant did not challenge the voluntariness of his consent to the search, and, consequently, the police had not *50obtained the evidence in violation of the defendant’s constitutional right to privacy.
There was no reason for the Rodriguez court instead to have suggested, in contravention of the legal principle described in Quinn, that a defendant also might obtain a suppression of evidence by demonstrating that facts that had come to light by reason of the prior police illegality motivated the police to seek consent for a search. That suggestion adopts the wrong focus. The critical inquiry under Quinn, in the context of a consent search, is the voluntariness of the consent, not the source of police knowledge that may have triggered the request for consent. Rodriguez incorrectly placed the emphasis on the state of mind of the police, rather than the voluntariness of the defendant’s consent. That approach simply avoids answering the important analytical questions whether the police have obtained the evidence in violation of the defendant’s constitutional rights, and whether the initial police illegality bears more than a “but for” causal relationship to the evidence that the consent search produced.
I turn next to Kennedy. In that case, two police officers approached the defendant as he was leaving the Portland airport, asked if they could speak with defendant, and identified themselves as officers. The officers informed defendant that they had information that he might be carrying illegal narcotics on his person or in his luggage. The defendant denied that allegation. Without any prompting from the officers, defendant asked them if they wanted to search his luggage. The officers accepted, searched defendant’s bag, and subsequently discovered a small vial, which contained cocaine residue. Kennedy, 290 Or at 495-96.
On review, this court assumed that the police encounter with defendant had been unlawful. It determined, however, that the evidence was admissible due to “the absence of any coercive circumstances surrounding [the] defendant’s consent, and [the] defendant’s volunteering of consent, with no request by the police.” Id. at 506. Relying on Wong Sun, the court stated that “the evidence is to be suppressed only if it is found that the consent was gained by exploitation of the illegality or that defendant’s free will was *51tainted by the illegal police conduct.” Id. at 501. That statement, like the similar statement noted above in Rodriguez, suggests inaccurately that the “fruit of the poisonous tree” analysis addresses the circumstances that induce the police to request consent, rather than the voluntariness of the consent granted. However, consistent with the correct rule in Quinn, the balance of the opinion in Kennedy focused on whether the defendant consented to the search voluntarily. The Kennedy court held that, regardless of whether the police had stopped the defendant illegally, the defendant had consented voluntarily to a search of his luggage. Id. at 506. Thus, when construed properly, Kennedy supports the state here, not defendant.
I am not unmindful of defendant’s concern that an unlawful stop or arrest, and the varying sorts of pressure and anxiety that often surround the lawful or unlawful assertion of police authority over a citizen, easily can create a coercive atmosphere in which citizens do not give a genuinely voluntary consent to a search. But a trial court is well able to examine, and must examine, all of those concerns in the course of determining the voluntariness issue. That analytical inquiry fully vindicates the rights of the defendant. That approach is preferable to creating an entitlement to a suppression remedy for unlawful police conduct that merely precedes, but does not taint, a later valid consent to a search that brings disputed evidence to light. Recognizing a right to suppression of evidence, notwithstanding the voluntariness of the defendant’s consent to the search, might be consistent with the deterrence rationale that the federal courts employ in resolving search and seizure disputes. However, I see no justification for doing so pursuant to the rights-based approach that this court follows under Article I, section 9.
The legal principles discussed above lead to a straightforward answer on the facts of this case. The state obtained the evidence that defendant seeks to suppress by way of a search of defendant’s pocket. Before the search, defendant told Deese that he consented to that search. After examining all the pertinent circumstances, the trial court necessarily concluded that defendant’s consent was voluntary, and defendant makes no challenge to that determination in this court.
*52It is true that defendant gave his consent dining the course of an unlawful stop, that Deese requested defendant’s consent, and that the request occurred not long after the unlawful stop commenced. Deese’s observations during the stop may have aroused his suspicions. However, Deese did not unilaterally search for or seize any evidence in defendant’s possession. Rather, he asked for and received voluntary consent to search. Although the unlawful stop has a “but for” causal relationship to the search of defendant’s pocket, that is the most that can be said for it. The critical inquiry is whether any of the circumstances surrounding the stop tainted the later search and seizure by undermining the voluntariness of defendant’s consent. The undisputed answer to that question is no. Because the police did not obtain the challenged evidence in violation of defendant’s rights under Article I, section 9, the search was reasonable. The trial court properly denied defendant’s motion to suppress.
Finally, defendant advances in this court an argument that the stop and subsequent search and seizure violated the requirements of the Fourth Amendment to the United States Constitution. My examination of the record satisfies me that, in the Court of Appeals, defendant did not preserve his federal law claim for review by this court. Accordingly, I do not address that claim.
Because the trial court correctly refused to suppress the evidence seized from defendant’s pocket, I respectfully dissent from the majority’s contrary determination.
Gillette, J., joins this opinion.The trial court made the following express findings:
“10) The officer asked if he could search the Defendant’s person. The Defendant indicated okay. The officer then did a quick pat-down and felt no weapons.
“11) The officer reached in the Defendant’s jacket and felt and removed a [vial]. Based upon his training and experience, the officer believed the [vial] contained controlled substance.
“This case is similar to State ex rel [Juv.] Dept. v[.]Fikes, 116 Or App 618[,842 P2d 807] (1992). For the reasons set forth therein, Defendant’s Motion to Suppress is denied.”
In Fikes, 116 Or App 618, the Court of Appeals rejected a child’s claim that his consent to a search by a police officer was involuntary. The court concluded that “child’s consent was not the product of police coercion, but was voluntarily and knowingly given.” Id. at 625.
In this case, the trial court made no express determination that defendant’s consent to the search was voluntary. However, the trial court’s express findings, quoted above, the court’s citation of Fikes as “similar” to this case, the absence of any findings that Officer Deese coerced defendant to consent, and the trial court’s denial of defendant’s motion to suppress all confirm that, in the trial court’s view, defendant’s consent to the search was voluntary.
In State v. Warner, 284 Or 147, 158-59, 585 P2d 681 (1978), this court stated the following in describing this court’s authority to review a trial court’s finding that a consent to a search was voluntary:
“We now specifically hold that an appellate court is not bound by a trial judge’s finding of voluntariness of consent to a search or seizure if the appellate court finds the historical facts upon which the trial judge made his finding are insufficient to meet constitutional standards of due process. It follows, therefore, that neither the Court of Appeals nor this court is bound by the implicit conclusion of the trial judge in this case that defendant’s compliance with Myers’ ‘request for identification’ was voluntary.”
(Footnote omitted.) To the same effect, see State v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981), citing Warner and Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). Because defendant does not challenge the trial court’s implicit voluntariness determination in this case, I accept that determination.
Trial courts provide valuable assistance to our appellate courts when they make express findings of fact and conclusions of law on critical issues, such as the voluntariness of a defendant’s consent to a search.
Rodriguez purported to draw support for its approach to exploitation from a vehicle search case, State v. Williamson, 307 Or 621, 772 P2d 404 (1989). Rodriguez, 317 Or at 40-41. However, the Rodriguez court correctly observed, id. at 40 n 14, that this court resolved Williamson “on grounds of voluntariness, rather than simply exploitation.” Thus, the suggestion in Rodriguez that the result in Williamson “may also be explained as based on an exploitation analysis!,]” Rodriguez, 317 Or at 40-41 (emphasis added), overstated the degree to which Williamson supported the analysis offered in Rodriguez.