concurring.
I agree with the majority that defendant’s statements and the evidence .seized from his vehicle were not obtained in violation of his federal or state constitutional rights. I write *213separately to discuss briefly the “Mirandization” of Article I, section 12.
The discussion revolves around State v. Magee, 304 Or 261, 744 P2d 250 (1987), and State v. Smith, 301 Or 681, 725 P2d 894 (1986). When this court decided Smith, 70 Or App 675, 691 P2d 484 (1984), we said:
“We address defendant’s state constitutional argument, see State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983), only to say that we perceive no principled basis, and defendant has presented us with none, to require earlier warnings under Article I, section 12, of the Oregon Constitution than those required under the federal constitution.” 70 Or App at 680.
We proceeded on the assumption that “Miranda”-type warnings are required by Article I, section 12.
On review, the conflict was described somewhat differently in the Supreme Court by the lead opinion:
“The question is whether Article I, section 12, of the Oregon Constitution requires that persons detained for questioning by law enforcement officers be given warnings similar to those required by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), under the federal Fifth Amendment. We hold that it does not.” 301 Or at 683. (Footnotes omitted.)
The Chief Justice and five of the other six judges of the court participated in the decision. Three of the six participants concurred in the answer to the question posed in the opening paragraph of the lead opinion,1 and three took the opposite view.
Smith involved only a skirmish in the battle now joined in this case. If the Oregon Constitution requires “Miranda”-type warnings, the next issue is at what stage of the contact between a person questioned and a police officer must the warnings be given. The majority, the dissent and the special concurring opinion of Riggs, J., identify State v. Magee, supra, as the decision resolving both issues.
*214One would have thought that, because of the uncertainty left by State v. Smith, supra, the Supreme Court, in Magee, would have firmly resolved the preliminary inquiry. The concurring opinion in Magee expresses the view that the issue was still alive. However, the court, in a rather casual unsigned opinion, extinguished the smoldering controversy with a simple recitation of what had and had not been decided in Smith. In any event, what emerges, at least after State v. Vu, 307 Or 419, 770 P2d 577 (1989), is that “Miranda”-type warnings are required under the Oregon Constitution.
In Magee, the court said:
“The question is whether the officer questioned defendant under conditions that would lead defendant to feel ‘compelled’ to ‘testify against himself,’ Oregon Constitution, Article I, section 12, or to ‘be a witness against himself,’ United States Constitution, Amendment V, unless the officer first told defendant of the rights that safeguard him against such compulsion.” 304 Or at 263.
The answer to that inquiry by the majority, again, is rather casual and imprecise. The cryptic analysis seems to reject such terms as “formal arrest,” “full custody” and “custody” and replace them with a more elastic concept of “compelling circumstances.” I, like the majority here, find momentary succor in State v. Vu, supra, and its phrase “level of custody,” even though that phrase is only marginally more precise. Appellate courts, in some measure, devise rules for police officers, describing conditions under which they may collect evidence of crimes. The rules should fairly delineate the conditions from the perspective of the police officers who have to follow them. The three other opinions in this case fairly catalog the consternation of this court in trying to make a principled decision regarding Oregon law. Are we to tell law enforcement officers that a form of custody is the critical point or that, when the circumstances become compelling, advice must be given?
The lead opinion in the Supreme Court in State v. Smith, supra, as well as the dissent, recited the long judicial history of the present federal law of custodial interrogation. If Newman, J., and Riggs, J., are correct that “compelling circumstances” is the key analysis, we are beginning as torturous a trek under state law. I doubt that the Supreme Court *215intended to launch an entirely new approach in a casual per curiam opinion.
Rossman and Deits, JJ., join in this concurring opinion.The lead opinion’s ambitious description of the court’s holding is not accurate. Four judges agreed that the defendant’s conviction should be affirmed but the participating judges were equally divided as to the application of Article I, section 12.