dissenting.
I disagree only with the majority’s conclusion that defendant’s consent to the search of his house was obtained by exploitation of illegal police conduct, because I believe that it does not reflect the teachings of State v. Kennedy, 290 Or 493, 624 P2d 99 (1981). Because the majority’s incorrect definition of “exploitation” is determinative of the outcome of this case, I dissent.
Defendant invited thé search without any request for consent from Valladolid. After defendant said, “Go ahead and look,” Valladolid asked, “Can we search?” Apparently, Val-ladolid was cautiously insuring that defendant’s invitation was genuinely voluntary. The majority acknowledges that defendant’s consent to the search was voluntary.
*552In my view, the determination that the consent was voluntary ends our inquiry. In State v. Jacobus, 106 Or App 496, 499, 809 P2d 108 (1991), we explained the holding of State v. Kennedy.
“The court rejected the concept that, because the unlawful police conduct put the defendant in a position so that his consent could be requested and obtained, consent was therefore invalid.” (Emphasis supplied.)
The problem with the majority’s conclusion is that it appears to apply a “but for” test to determine if evidence is illegally seized. That is, but for Valladolid’s presence in defendant’s home as a result of his improper use of an administrative warrant, defendant would not have been in a position to consent. The majority ignores the significance of defendant’s voluntary consent and apparently defines “exploitation” as the circumstances under which the officer came to be present to receive defendant’s consent. However, Kennedy specifically rejected the “but for” test. The proper inquiry is, instead, whether there were circumstances that might have coerced defendant to give his consent.
In State v. Williamson, 307 Or 621, 772 P2d 404 (1989), police had stopped the defendant by means of an unlawful roadblock. When the defendant refused to give his consent to search his truck, the police threatened him with indefinite detention of his truck while the officers obtained a search warrant. The defendant then “decided” to consent, because he felt that he had no other reasonable choice. The court distinguished Kennedy, in which the defendant’s consent had been voluntary, because the facts of Williamson clearly indicated coercion. The court explained:
“We do not hold that consent can never legitimize a search when the occasion to give or refuse consent followed some unauthorized act of the police. We hold only that a search is not legitimized by consent obtained under the pressure of police action that became available to police only by the prior unauthorized conduct.” 307 Or at 626.
Similarly, we should distinguish the present case, in which there is no dispute but that defendant’s consent to search his house was voluntary. Neither does there appear to be a disagreement that defendant could have refused to give his *553consent. Accordingly, the officer was justified in seizing the firearms, and the trial court properly denied defendant’s motion to suppress.