concurring in part; dissenting in part.
I agree with the majority’s conclusion that Maloney’s frisk of defendant was unlawful. However, because I believe that Maloney did not exploit his prior unlawful conduct in obtaining defendant’s consent to search, I would affirm the trial court’s denial of defendant’s motion to suppress.
The majority has done an excellent job of formulating the proper exploitation analysis under the existing case law, which is less than precise. I agree with the majority’s formulation to the extent that it concludes that exploitation occurs when the police, through unlawful conduct, obtain information that focuses their attention on the defendant and prompts them to seek consent to a search. My difference with the majority is in our understanding of what constitutes “prompting” under the test. In my view, the majority’s understanding of the term eliminates the distinction set forth in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), between a mere “but for” causal connection and exploitation. Thus, the majority’s position threatens to eliminate the rule, embodied in State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search.
*539In my view, a proper application of the exploitation test must take into consideration the nature of the information gained during the officer’s unlawful conduct. I believe that we can conclude that exploitation exists only when, under the particular circumstances of the case, the information disclosed by the unlawful police conduct implicates in some way the defendant’s possible involvement in illegal activities. Because the information gained by Maloney during his unjustified frisk was completely innocent and did not implicate defendant in any way in illegal activities, I would hold that his consent was not the product of exploitation.
In Rodriguez, the court explained the distinction between a mere causal connection and “exploitation”:
“Whether suppression is required in any such case will * * * depend on the nature of the connection between the unlawful police conduct and the evidence sought to be suppressed. As we have noted previously, evidence is subject to suppression in a criminal prosecution if it was ‘obtained in violation of a defendant’s rights under [Article I, section 9]’ State v. Davis, supra, 313 Or at 253 (emphasis supplied). Under that standard, there will have to be, at the very least, a causal connection between the unlawful police conduct and the evidence uncovered during the subsequent consent search * * *.
“A causal connection alone, however, still is not sufficient to require suppression. This court has rejected the so-called ‘but for’ test, which would require the suppression of any evidence that would not have been discovered ‘but for’ the unlawful conduct. State v. Quinn, 290 Or 383, 394-97, 623 P2d 630 (1981); State v. Kennedy, 290 Or 493, 500-01, 624 P2d 99 (1981). Thus, the fact that ‘but for’ the unlawful conduct, the police would not have been in a position to (for example) seek a person’s consent does not, in and of itself, render any evidence uncovered during the ensuing consent search inadmissible.
“In what circumstances, then, does unlawful police conduct render evidence obtained in a later consent search inadmissible, where the consent to the search is voluntary? 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 *540that the evidence discovered subsequently was ‘obtained in violation’ of a defendant’s rights under Article I, section 9.” Rodriguez, 317 Or at 39-40 (emphasis supplied).
As mentioned above, I think that the majority’s understanding of the exploitation analysis does away with the difference between mere “but for” causation and exploitation. The majority attempts to explain the difference by stating that “but for” causation “give[s] police * * * the opportunity to seek consent,” while prompting, as part of the exploitation test, “provide[s] a reason for doing so.” Stanley, 139 Or App at 534 (emphasis in original). That explanation is unsatisfactory, however, because it does little more than answer the question with another question. We are still left with uncertainty as to how to determine whether the information gained during the unlawful police conduct provided the reason for the officer’s request for consent to search. Unfortunately, the majority’s application of the exploitation test to the facts here fails to demonstrate how that inquiry is to be made. The majority’s application of the exploitation test provides no guidance as to when permissible “but for” causation becomes exploitative “prompting.”
That lack of guidance threatens to do more than just produce confusion for the bench and bar; it also threatens to eviscerate the rule, embodied in Kennedy, that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search. The majority states:
“[W]e conclude that the illegal frisk revealed information — the container’s presence in defendant’s pocket — that focused Maloney’s attention on defendant and prompted him to request consent to search.” Stanley, 139 Or App at 536.
The majority clearly implies that a consent to search will be the result of exploitation anytime that it follows unlawful police conduct that has yielded any information. However, it is difficult to imagine an encounter between a police officer and a defendant that will not yield some information to the officer’s trained eye. By ignoring the need to analyze the nature of that information and the likely role that it played in the officer’s decision to seek consent to a search, *541the majority creates a situation, where all consents given after unlawful police conduct could be the product of exploitation, thus completely undermining Kennedy.
In my view, to make a principled determination as to whether information gained during unlawful conduct “prompted” the officer’s request for consent, the analysis must take into consideration the nature of the information. Exploitation has been found consistently when the unlawful police conduct disclosed information that, under the circumstances,1 implicated in any way a defendant’s possible involvement in illegal activities.2 When an officer’s unlawful conduct discloses such information, a court may readily conclude that that discovery prompted the officer to seek consent to a search and, consequently, that exploitation occurred.
State v. Martin, 124 Or App 459, 863 P2d 1276 (1993), is illustrative. In that case, an officer noticed a parked car in a convenience store parking lot. The defendant was slumped over the steering wheel, but the engine was running and the lights were on. Out of concern for the defendant’s safety, the officer approached the car and knocked on the window. When the defendant did not *542respond, the officer opened the car door and reached in and shook him. The officer immediately noticed that the defendant’s breath smelled of alcohol, his eyes were watery and bloodshot, and he was incoherent. The officer then arrested the defendant for DUII, handcuffed him, and conducted a “routine search incident to an arrest,” which disclosed a Dristan tin. The officer concluded that the contents of the tin did not sound like tablets, so she opened it and discovered methamphetamine. The Defendant was placed in a patrol car and given Miranda warnings. Another officer asked the defendant for consent to search his car, and the defendant replied affirmatively. After obtaining consent, the arresting officer went to the defendant’s car and seized a paper bag. She opened it and saw a box with a picture of some scales of a type that she testified were commonly used to weigh contraband. She then asked the defendant if the bag contained “more drugs,” and he said that it did and gave her permission to search the contents. The officer then discovered more methamphetamine.
The trial court held, and we agreed, that the officer’s opening of the Dristan tin was unlawful. The defendant then argued that the evidence of the methamphetamine found in the bag must be suppressed, because the officer obtained it by exploiting her prior unlawful conduct. We agreed:
“In this case, the officer had discovered methamphetamine dining the illegal search incident to arrest. Defendant was handcuffed, placed in the back of a patrol car and had been asked several questions about the contents of the Dristan tin. The officer then confronted him with the paper bag and asked if it contained more drugs. There is a direct connection between asking that question and the fact that the officer had illegally discovered methamphetamine in the earlier search. We conclude that the methamphetamine and scales discovered in the bag must be suppressed, because the police obtained them by trading on evidence that they had only as a result of the illegal search incident to arrest.” Id. at 467 (emphasis in original).
In Martin, the officer’s exploitation of her prior unlawful conduct was apparent. Before asking the defendant for consent to search the paper bag and whether it contained “more drugs,” the officer had illegally seized *543from the defendant evidence of methamphetamine. We could easily conclude that finding methamphetamine — evidence that implicated the defendant’s involvement in illegal activity — prompted her to seek the defendant’s consent to an additional search. Maloney’s conduct here was materially different, in that his unlawful frisk revealed only an innocuous metal container, not evidence of a crime or any other information that would reasonably indicate that defendant was involved in illegal activities. Indeed, after feeling the object, Maloney did not even seize it. In that respect, Maloney’s conduct was no different from that of the officers in Rodriguez, who, but for their unlawful conduct, would not have been standing in the door of the defendant’s apartment. As in that case, suppression is not mandated simply because of the mere fact that, “but for” his prior unlawful conduct, Maloney would not have been in a position to ask for defendant’s consent to a search.3
Analyzing the nature of the information discovered during the officer’s unlawful conduct provides a principled way to determine whether that information could have “prompted” the officer’s request for consent. Such an inquiry, unlike the majority’s broad, conclusory approach, preserves the rule of Kennedy that prior unlawful police conduct does not automatically render inadmissible any evidence discovered during a subsequent consent search. It also preserves the distinction, formulated in Rodriguez, between mere “but for” causation and exploitation. I believe that Maloney’s request for consent here was not “prompted” by his discovery of an innocuous metal container. Thus, in my view, the court properly denied defendant’s motion to suppress. Accordingly, I dissent.
The majority points to Quinn as a case in which exploitation should have been found, but asserts that the evidence discovered during the unlawful police activity — women’s underwear — “by itself does not indicate illegal activity.” 139 Or App at 537. However, under my approach, the determination as to whether or not there is any indication of possible criminal activities certainly must consider the circumstances in which the information is found. The discovery of women’s underwear in the defendant’s car under the circumstances of Quinn clearly implicated the defendant’s involvement in criminal activities, i.e., residential burglaries or even murder of an elderly woman. Thus, the majority’s and Justice Gillette’s (see State v. Weaver, 319 Or 212, 874 P2d 1322 (1994) (Gillette, J., concurring)) view of Quinn is not inconsistent with my exploitation analysis.
See State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993) (no exploitation where police found no evidence of illegal activity during presumptively illegal arrest); State v. Williamson, 307 Or 621, 772 P2d 404 (1989) (exploitation where police detected the smell of marijuana emanating from truck stopped at illegal roadblock); State v. Wilkinson, 132 Or App 531, 889 P2d 351 (1995) (no exploitation where police found no evidence of illegal activity during illegal arrest); State v. Martin, 124 Or App 459, 863 P2d 1276 (1993) (exploitation where police found methamphetamine during illegal search); State v. Land, 106 Or App 131, 806 P2d 1156 (1991) (no exploitation where illegal entry by police onto defendant’s premises did not yield evidence of illegal activity); but see State v. Quinn, 290 Or 383, 623 P2d 630 (1981) (no exploitation even though police found evidence that, under the circumstances, indicated illegal activity); State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994) (same).
I agree with the majority that our holding in State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994) is questionable. In that case, the police obtained, through their unlawful conduct, information of criminal activities that precipitated their seeking the defendant’s consent to a search.