dissenting.
The majority recognizes, as it must, that this court has responsibility for the guarantees of individual liberty provided in Oregon’s Bill of Rights, article I of the Oregon Constitution. That recognition means much, even if the court divides on the outcome of the present case. It is elementary that determination of Oregon law is antecedent to any claim under the federal fourteenth amendment, since a state does not *283violate that amendment if its own constitution and laws, as enforced by its courts, in fact protect the claimed right. State v. Valdez, 277 Or 621, 561 P2d 1006 (1977).
This court enforced Oregon’s constitutional guarantee against warrantless or unreasonable searches and seizures, Or Const art I, sec 9, many years before this became a federal issue. See, e.g., State v. Laundy, 103 Or 443, 204 P 958, 206 P 290 (1922); State v. McDaniel, 115 Or 187, 231 P 965, 237 P 373 (1925). In this case the majority chooses to adopt a rule that a search and seizure which would normally require a search warrant does not invade a person’s constitutional rights if he or she has "consented” to the search without being "coerced,” even though the person is in custody in a police station and is unaware of having any legal right to refuse consent, but rather believes that the police are entitled to do as they wish. Such a rule is hostile to the search warrant requirement of article I, section 9, and to the great principle that it embodies.
Because other matters discussed by the majority are not in dispute, the following should be clearly ■understood:
First. The central issue concerns the use of evidence obtained in a search made by the police without a search warrant. This issue does not concern the Mirandai1 warnings, which deal with police questioning rather than searches, nor the use of statements obtained from the defendant.
Second. The issue in this case is not the legality of a search incident to an arrest, neither of a defendant’s person nor of his automobile or immediate surroundings. Rather it involves the search without a warrant of a location remote from the arrest, when a warrant might readily have been sought, and rationalized only by defendant’s supposed "consent” while in custody in *284the police station. The fact that the search was of a locker is immaterial on the constitutional issue. See United States v. Chadwick, — US —, 97 S Ct 2476, 53 L Ed 2d 538 (1977). It must be understood that the majority’s view, dispensing with a search warrant under these circumstances, will apply exactly the same if any man or woman, in custody and ignorant of constitutional law, "consents” to letting the police use the keys taken from a pocket to go and search his or her home at leisure. Under this rule, such a search would not depend on a magistrate’s independent finding of "probable cause” nor on describing "the place to be searched and the person or thing to be seized,” the essential safeguards of the constitutional guarantee. See also ORS 133.525-133.615. Any assent, whether given from misconception of the law, misplaced bravado, or fear short of coercion, opens the door.
Third. The rule chosen by the majority is in no way compelled by any federal law or federal decision, as the majority acknowledges. It must stand on its own merits as a matter of Oregon law. Oregon v. Hass, 420 US 714, 95 S Ct 1215, 43 L Ed 2d 570 (1975); State v. Florance, 270 Or 169, 527 P2d 1202 (1974).
Fourth. The question is not whether article I, section 9 was meant to embody the same principle as the federal fourth amendment, the guarantee against warrantless or unreasonable searches and seizures. Of course it was. It may equally be pointed out that the fourth amendment meant to embody that principle from the state constitutions that preceded the federal Bill of Rights. For instance, the Pennsylvania Declaration of Rights, adopted at the moment of Independence, declared:
That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not *285particularly described, are contrary to that right, and ought not to be granted.2
The rule adopted by the majority is far from the spirit of these early declarations.
The question is, rather, what safeguards this principle embodied in article I, section 9, extends to the people of Oregon. That question is not answered by the decisions in Schneckloth v. Bustamonte, 412 US 218, 93 S Ct 2041, 36 L Ed 2d 854 (1973) and United States v. Watson, 423 US 411, 96 S Ct 820, 46 L Ed 2d 598 (1976). It cannot be answered by the Supreme Court of the United States but only by this court. Obviously, if the present case had arisen before Schneckloth, supra, this court would have had to form its own judgment.3 It does not escape that responsibility after Schneckloth.
We turn, therefore, to the merits of the view which the majority takes from Schneckloth and Watson, the view that a warrantless search may be based on the uninformed assent of a suspect in police custody.
That view was criticized and rejected in a postSchneckloth report by the experts who prepared the model Code of Pre-Arraignment Procedure for the American Law Institute, and by the A.L.I. in approving that code. The institute adopted the position that before undertaking a search on the basis of consent, an officer must inform the individual whose consent is sought that he need not consent and that anything found may be used as evidence, and if the individual is in custody, further inform him of his right to consult *286counsel or friends before deciding; in short, the institute would treat waiver of the protection of a search warrant the same as waiver of the right to remain silent. A.L.I. Code of Pre-Arraignment Procedure sec. SS 240.2 (1975). The accompanying commentary stresses these points:
If there is one thing that comes through clearly from almost all of the cases on this issue, whichever way they come out on the warning requirement, it is the extreme difficulty of determining from the record the extent to which the person whose consent was sought acted on the assumption that the police had a right to make the search.
It seems unlikely that there is any greater knowledge of one’s right to refuse a search than the right to silence. The law relating to availability of a warrant, the right to search without a warrant and the admissibility of evidence seized is at least as confusing to the layman as the law relating to oral admissions.
Furthermore, in at least two respects the argument for requiring warning in the case of a consent search seems clearly stronger than that for requiring warning prior to interrogation. First, by the consent search the officer is seeking to short-circuit another means available to him—the use of a warrant—to obtain evidence. No such alternative exists with respect to information sought by interrogation. It seems far less justifiable to omit the protection of the warning when, by the very act of seeking consent, the officer is depriving the person from whom it is sought of the protective screening of judicial involvement in the issuance of the warrant. . . .4
*287But we need not in this case go so far as the American Law Institute. The constitutional protection of a search warrant may certainly be waived by the person whom it protects; the question to be determined in each case is whether it has been knowingly waived. On that question, the fact that the person was explicitly informed before giving consent is certainly the strongest evidence, but it is not the only evidence. Sometimes it may be possible to prove by other means that even without a warning, the consent was given with full knowledge that it could be refused.5 This is the view of warrantless "consent” searches taken by the Supreme Court of New Jersey after Schneckloth, even where the suspect was not in custody:
We conclude that under Art. I, par. 7 of our State Constitution the validity of a consent to a search, even in a non-custodial situation, must be measured in terms of waiver; i.e., where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.
Many persons, perhaps most, would view the request to a police officer to make a search as having the force of law. Unless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request, his assenting to the search is not meaningful. One cannot be held to have waived a right if he is unaware of its existence. State v. Johnson, 68 NJ 349, 346 A2d 66, 68 (1975).
The court remanded the case for specific findings of fact by the trial court bearing on the individual’s knowledge of her right to refuse consent to the search. We do not know whether the New Jersey court would go further to require warnings when the suspect is in *288custody. In any event, it is distressing to think that the rights of Oregon citizens should not be safeguarded as much in the stress of police custody as those of New Jersey’s are on the street.
A requirement of knowing consent, rather than merely uncoerced consent,6 would require reversal on the record of this case. Indeed, in its concentration on overruling State v. Williams, supra, and falling in line with Schneckloth and Watson, the majority has given insufficient attention to the question whether, on its facts, this case passes the test of those decisions. This is doubtful at best. In Watson, decided only last year, the United States Supreme Court took the trouble to point out that Watson’s consent to the search "was given while on a public street, not in the confines of the police station,” and that, after being given the Miranda warnings, he "was further cautioned that the results of the search of his car could be used against him.” 423 US at 424-425, 96 S Ct at 828, 46 L Ed 2d at 609. Neither factor is present in this case. Instead, the following occurred in the police station. The questions and answers were translated into and from Spanish, which is omitted here. Defendant was asked:
Q. Did you give us the keys and say it was all right to go up and look in those lockers? [Translated into Spanish] * * *
*289A. * * * Yes, you asked for the keys and I gave them to you. [Translated from Spanish]
q * * * Did we force you into givin’ us those keys, did you tell us it was all right to go up there and go in there?
A. Yes, all right.
Q. You said that was all right?
A. Yes, all right.
Q. (To officer Murillo:) You ask him if he tinder-stands that we didn’t force him, that he said it was all—OK for us to go up there and look in those lockers. [Translated into Spanish]
A. OK, you are the officers and then, of course, I have to cooperate with you. If an officer asks you for something I have to give it to you. No I don’t say that I have been forced, but anyway I have to give it to you. [Translated from Spanish]
Q. Did you understand that you didn’t have to give ’em to us? [Translated into Spanish]
A. OK, it’s not that I don’t want to give you the keys, but as I am telling you, you are the officers, it is my obligation to deliver—or show you identification or any other thing—so I’ll be free to go if I cooperate, but it wasn’t possible—I wasn’t free to go after all. [Translated from Spanish]7
It may well be that the record here does not make out a "voluntary consent” to a warrantless search of remote premises under Schneckloth and Watson. But if Schneckloth and Watson do mean that a person in such circumstances has abandoned the protection of a search warrant, those decisions should not be adopted in applying Oregon’s Bill of Rights.
Denecke, C.J., and Lent, J., join in this dissenting opinion.Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974 (1966).
Pennsylvania Declaration of Rights, section X (1776). See also Delaware Declaration of Rights, section 17 (1776), Maryland Declaration of Rights, section XXIII (1776), Virginia Declaration of Rights, section 10 (1776).
The court in fact had to do as much in State v. Williams, 248 Or 85, 432 P2d 679 (1967), when it adopted the view that evidence could be seized by "consent” only if the suspect had been informed that he could refuse consent. The fact that defendant in that case, and the court, skipped article I, section 9, to rely on the fourteenth amendment reflects the litigation habits of the 1960’s.
Id. at 533, 534. The commentary also reports:
It has been the practice of the FBI for decades to obtain from a person whose consent to a search is sought a written from of authorization. As reflected in the form itself, the Agent is to warn the person whose consent is sought of his rights. It is not entirely clear what the FBI’s practice with respect to warning is when Agents are actually invited to search, but apparently an oral warning of rights is given even when a suspect refuses to sign the form.
The Bureau of Narcotics and Dangerous Drugs uses a consent form similar to that of the FBI and the regulations require that agents have *287it signed before making a consent search. The Bureau’s manual is also explicit that even after a person has been arrested and been given the Mimnda warning, he must be warned again as a condition of obtaining consent to search. Id. at 535-536.
See Justice Marshall’s dissent in Schneckloth v. Bustamonte, supra, 412 US at 286, 93 S Ct at 2078, 36 L Ed 2d at 897.
Adoption of "voluntariness” or "coercion” as the test whether a constitutional right has been unknowingly sacrificed takes the courts and the police back to the morass of case-by-case evaluation of factors (such as age, ethnic background, education, prior experience, number of interrogating officers, etc.) bearing on the susceptibility of the suspect and the atmosphere of the police station that occupied the courts in the 1940’s and 1950’s. See the cases listed by Justice Clark, dissenting, in Haynes v. Washington, 373 US 503, 520, 83 S Ct 1336, 1347, 10 L Ed 2d 513, 526 (1963), e.g., Lynumn v. Illinois, 372 US 528, 83 S Ct 917, 9 L Ed 2d 922 (1963); Gallegos v. Colorado, 370 US 49, 82 S Ct 1209, 8 L Ed 2d 325, 87 ALR2d 614 (1962); Reck v. Pate, 367 US 433, 81 S Ct 1541, 6 L Ed 2d 948 (1961); Haley v. Ohio, 332 US 596, 68 S Ct 302, 92 L Ed 224 (1948), and also Blackburn v. Alabama, 361 US 199, 80 S Ct 274, 4 L Ed 2d 242 (1960). See Comment, The Coerced Confession Cases in Search of a Rationale, 31 U Chi L Rev 313 (1964). Given that prospect, police and prosecuting officers may well consider it a sensible precaution to obtain a written or tape recorded, informed waiver before conducting a "consent” search, even if the present decision does not make it indispensable.
State’s Exhibit 44, taped statement of defendant at police station. It should be noted that the trial court’s findings, quoted by the majority, appear to relate to the rights mentioned in the Miranda warnings; the state does not claim that the record shows defendant to have been advised with respect to the search.