dissenting.
I believe that the majority downplays the significance of State v. Porter, 312 Or 112, 817 P2d 1306 (1991). I can understand the instinct that motivates the majority to do that because, if it were to heed the words of that opinion, it would certainly have to reach a different result in this case.
Porter is based on the language of ORS 810.410(3):
“(3) A police officer:
* * * *
“(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”
*267After quoting part of the legislative history, the court said:
“From that history, we glean that the legislature sought to keep traffic infractions decriminalized and to reduce the attendant law enforcement methods as much as necessary to accomplish that goal. The legislature intended to satisfy the concerns expressed in Brown v. Multnomah County Dist. Ct., [citation omitted], and thus to permit only minimal intrusions on Oregon drivers stopped for traffic infractions. The words of ORS 810.410(3)(b) reflect that intent by requiring that any investigation be ‘reasonably related to the traffic infraction, identification and issuance of citation.’ ORS 810.410(3) defines the authority of the police to respond to a traffic infraction; by implication, the statute proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction. A search that explores for evidence of other crimes or infractions is not ‘reasonably related to the traffic infraction, identification and issuance of citation.’ ORS 810.410(3)(b) (emphasis [supplied]).” 312 Or at 119.
The applicability of that language to this case seems obvious to me. Defendant was stopped for traffic offenses, and that is all that the officers were then “investigating.” They suspected no crime until defendant said that his operator’s permit had been suspended and was unable to produce any other identification. The officer decided to take defendant into custody for failure to display an operator’s license. ORS 807.570. Searching defendant or his car (let alone his house1) had, and could have had, nothing at all to do with any offense for which defendant had been stopped or that he had admitted. As the Supreme Court said in Porter:
“This is not a case in which, while acting within the scope of the statute permitting investigation of the traffic infraction, the officer observed something that gave him probable cause to investigate a crime (when, of course, the warrant requirement still must be observed or excused).” 312 Or at 120.
*268Entirely aside from the defects in the Supreme Court’s opinion as an opinion, its meaning is either very clear when applied to this case or is entirely misleading and requires further explanation. By their questioning, the police entered into an investigation that was entirely separate from any investigation that they were permitted to do under ORS 810.410(3)(b). The Supreme Court has said that that is exactly what the statute was intended to prohibit — and, unfortunately, it is exactly what the majority here would not only permit but encourage.
Defendant raised and preserved this reversible error in the trial court. His motion to suppress was based in part on this proposition:
“ ‘Police may * * * stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.’ ORS 810.410(b) (emphasis added [sic]). However, ‘traffic stops should be the minimal possible intrusion on Oregon motorists and not an excuse to begin questioning, searching or investigating that is unrelated to the traffic reason for the stop.’ State v. Carter/Dawson, 34 Or App 21, 32 (1978), aff’d 287 Or 479 (1979). Thus, when officers!’] questioning is unrelated to or exceeds the permissible scope of questioning which justified the stop the fruits of that inquiry should be suppressed.”
Aside from the impact of State v. Porter, supra, I would conclude that, even though we are bound by the trial court’s finding that defendant consented to the search of his person and his car, he was in arrest custody and was not furnished any warnings of his right to refuse to consent. I would hold that the situation was inherently coercive and that the state failed to bear its burden to prove that any consent was voluntary.
I also believe that, in these circumstances, the majority’s search-incident-to-arrest analysis under State v. Owens, 302 Or 196, 729 P2d 524 (1986), is wholly wrong. It was either a consent search or it was unlawful.
I dissent.
The record of the suppression hearing has an interesting element. The arresting officers testified that defendant consented to searches of his person, of his car and of his house. Without much explanation, the trial court explained that it believed that defendant had given the first two consents but not the third. That is, the trial court believed the officers’ testimony as to two of the searches but not as to the third. That is impossible to comprehend — but it is not involved in this case, because the state does not challenge the suppression of evidence found in defendant’s home.