pro tempore, dissenting.
The majority holds, for the first time, that State v. Porter, 312 Or 112, 817 P2d 1306 (1991), and ORS 810.410(3)(b) do not restrict the authority of a police officer, during a traffic stop, to request consent to search the vehicle. The officer’s request was not reasonably related to any investigative purpose related to the stop, and it was not prompted by any circumstance arising before or during the stop that gave the officer a basis to make the request. The majority holds that an inquiry into the officer’s authority to make the request is unnecessary, because defendant voluntarily consented to the search. The majority’s analysis defeats the legislature’s purpose in specifying the limits of an officer’s authority during a traffic stop and disregards Porter and other cases. I dissent.
The majority’s cardinal error is its failure to follow the correct methodology in assessing defendant’s challenge to Kelley’s authority during the stop. Unquestionably, the stop was a “seizure” under Article I, section 9, of the Oregon Constitution. State v. Painter, 296 Or 422, 426, 676 P2d 309 (1984). Painter requires that we scrutinize an officer’s authority to stop a citizen once we determine that a stop has occurred: “[H]aving found that defendant was stopped, we examine whether the stop was authorized.” 296 Or at 426. In Nelson v. Lane County, 304 Or 97, 102, 743 P2d 692 (1987), the court repeated that message in describing its analytical method in State v. Atkinson, 298 Or 1, 688 P2d 832 (1984), which involved the search of an impounded automobile:
“We declined to reach the question whether the search otherwise violated Article I, section 9, without first determining whether the activity was authorized by law and carried out pursuant to regulation.” (Emphasis supplied.)
In an accompanying footnote, the court said:
“We often have stressed the need to examine statutory authority and the limitations imposed by that authority before reaching any constitutional question.” 304 Or at 102 n 2. (Emphasis supplied.)
The court cited 12 Oregon Supreme Court cases in support of that proposition. In light of these authorities, I cannot accept the majority’s argument that it can abort any inquiry into *30Kelley’s authority during the stop, including any limitations on that authority, by leaping to the issue of the voluntariness of defendant’s consent.
This case does not concern a stop to investigate criminal activity. The officer had no specific, articulable facts that would give rise to a reasonable suspicion that defendant had committed a crime. ORS 131.615(1). In State v. Moya, 97 Or App 375, 775 P2d 927 (1989), we found a lack of reasonable suspicion for a stop on facts stronger than those in this record.
ORS 810.410 states the extent of, and limits on, Kelley’s authority during the traffic stop. It provides, as material:
“ (2) A police officer may issue a citation to a person for a traffic infraction * * * when the traffic infraction is committed in the police officer’s presence * * *.
“(3) A police officer:
“(a) Shall not arrest a person for a traffic infraction.
“(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.”
State v. Porter, supra, 312 Or at 119, states the legislature’s intention in adopting subsection 3(b):
“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., [280 Or 95, 570 P2d 52 (1977)] 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 810.310(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 added).”
*31In Porter, the officer stopped and arrested a driver on a fugitive warrant and placed the defendant in his patrol car. He saw an open beer can on the floor of the defendant’s car and seized it. He saw no other evidence of crime. However, he began searching the car, to see if he could find another can with more beer in it. The court held that the search for additional evidence of the open container violation was irrelevant to that traffic infraction because
“he had all the evidence he needed to cite defendant for violating the open container law. ORS 810.410(3)(b) instructed him to investigate no further.” 312 Or at 120.
The court stated its holding as follows:
“We hold that the search in this case exceeded the scope of investigation permitted by ORS 810.410(3) and that there was no other lawful basis for the search. The trial court should have suppressed the evidence obtained in violation of ORS 810.410(3), because the object of that statute is to define the authority of officers to respond to a traffic infraction. See State v. Davis, 295 Or 227, 236, 666 P2d 802 (1983) (‘when the object of the statute is to define the authority of officers to seize or to search a person or property, * * * the court * * * has given effect to the statute by denying the state the use of evidence that it would not have secured if its officer had respected the rights that the statute was designed to protect’).” 312 Or at 121. (Footnote omitted; omission in original.)
The central teaching of Porter is that ORS 810.410(3) “define[s] the authority of officers to respond to a traffic infraction.” 312 Or at 121. That statute “proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction.” 312 Or at 120.
The majority reasons that the search was independently authorized because, when Kelley asked for permission to search, defendant consented. That evades the issue. We must first ask: Does ORS 810.410(3) limit Kelley’s authority to request permission to search the car? Questioning a driver about whether he will consent to a search is a proscribed “further action by the police,” 312 Or at 120, unless that police action has some basis other than the traffic infraction.
*32The majority’s response to Porter is to evade it. The majority says:
“[I]t is clear from the court’s discussion in Porter that in using the terms ‘any further action by the police,’ the court was referring to other police action for which authority to act is required.” 126 Or App at 27.
Unlike the majority, I am not willing to say that the Supreme Court did not mean what it plainly said. As Porter explains, the legislature chose to proscribe “any further action” by police during a stop unless it is related to the purpose of the stop, or has a basis independent of the stop. That choice is based on the legislature’s goal to decriminalize traffic infractions and “to permit only minimal intrusions on Oregon drivers stopped for traffic infractions.” 312 Or at 119. A traffic stop is no longer the “minimal intrusion” intended by the legislature if it also includes questioning by the officer that seeks consent to search the car, where such questioning has no basis independent of the purpose of the stop. The majority’s revision of Porter predictably will elongate traffic stops for no reason related to the enforcement of traffic laws, in violation of the policy behind ORS 810.410(3)(b). The majority opinion promulgates a different policy simply because the majority disapproves of the legislature’s policy.
This court has applied Porter to a purported consensual search of property during a traffic stop. In State v. Bucholz, 114 Or App 624, 836 P2d 180 (1992), a stopped driver failed to produce her license or display the car registration. Although the officer had all the evidence he needed to arrest or cite the driver for those violations, he asked for permission to look in a backpack to find the vehicle registration. A passenger gave him the backpack. He searched it and found crime evidence. Citing Porter, we held that
“[h]e had no ‘basis other than the infraction’ for requesting consent to search the pack. As a matter of law, he was forbidden from asking to look in the pack during the stop.” 114 Or App at 627.
The majority fails to explain why the request for consent to search in Bucholz stands on any different legal footing than the request for consent in this case.1
*33The majority’s premise that an officer does not need authority to ask a person for consent to search, 126 Or App at 27, ignores the fact that the request here occurred during a traffic stop, during which every question or investigative action must be reasonably related to the purpose of the stop. In State v. Farley, 308 Or 91, 775 P2d 835 (1989), an officer stopped a car that displayed no license plates. However, he realized, as he approached the driver, that the car bore a temporary permit and was operating lawfully. The court found that
“the reason for the stop had dissipated and that no further investigation of the validity of the temporary permit or the identity of the driver was necessary.” 308 Or at 93.
Nevertheless, the officer, following his routine procedure, asked the driver for his license. In response, the driver admitted a separate traffic violation. Applying the limitation in ORS 810.410(3)(b), the court held that the officer was not authorized to request the license, because that question was no longer reasonably related to the purpose of the stop:
“Having made a lawful stop, however, the officer could ask defendant to show his driver license only for the purposes of investigation reasonably related to the stop. Upon seeing the temporary permit, the justification of any investigation was vitiated. Plain and simple, the officer had no statutory authority to proceed further. That authority ended with the officer’s discovery that the traffic infraction he was investigating had not actually occurred.” 308 Or at 94. (Emphasis supplied.)
The majority’s attempt, in a footnote, to distinguish Farley is an evasion of the language emphasized above. 126 Or App at 26 n 1. According to the majority, the court’s statement that “the officer had no statutory authority to proceed further” means that the officer, nevertheless, could ask for permission to search the car and search it, or take any *34other action not requiring specific statutory authority. Nothing in Farley justifies the judicial creation of such a sweeping rule.
The majority cites State v. Auer, 90 Or App 459, 464, 752 P2d 1250 (1988), and State v. Bonham, 120 Or App 371, 852 P2d 905, rev den 317 Or 584 (1993), for the proposition that reasonable suspicion is not a prerequisite to asking for consent to search. Auer involved an officer’s request for consent to search conveyed to a suspect in a full custody arrest. See also State v. Jacobus, 318 Or 234, 864 P2d 861 (1993); State v. Jeffers, 125 Or App 596, 866 P2d 486 (1994). Bonham purported to address a request for consent to search conveyed after a traffic stop had ended. Whatever may be an officer’s authority to seek permission to search in those settings, those cases do not address an officer’s authority during a traffic stop 2
We have held that the statutory restriction of an officer’s authority during a stop means that
“[t]raffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to begin questioning, searching or investigating that is unrelated to the reason for the stop.” State v. Carter/Dawson, 34 Or App 21, 32, 578 P2d 790 (1978), aff’d 287 Or 479, 600 P2d 873 (1979).
Kelley’s questioning of defendant about whether he would agree to a search was not related to the stop and, thus, was not authorized. The unlawful character of the questioning and detention from that point requires suppression of evidence seized during the search. State v. Auer, supra, 90 Or App at 464.
I dissent.
The majority relies on dictum in State v. Mesa, 110 Or App 261, 265, 822 P2d *33143 (1991), which concerned a request for consent to search conveyed while the “defendant was lawfully under arrest.” 110 Or App at 264. State v. Aguilar, supra, 126 Or App at 27. The holding in Mesa, which is what counts, is that the statutory limits on an officer’s authority during a traffic stop do not apply once the officer makes a full custody arrest. I agree with that holding. The majority then describes the holding in State v. Bucholz as “inconsistent with” the dictum from State v. Mesa. 126 Or App at 27 n 2. That statement is not logical. It demonstrates that the majority is willing to criticize Bucholz, but unwilling to distinguish or overrule it.
In a number of police-citizen encounters, other than traffic stops, the Supreme Court has analyzed whether illegal police conduct tainted a person’s consent to a search, and whether the police “exploited” their unlawful conduct to secure the person’s consent. See State v. Rodriguez, 317 Or 27, 41, 854 P2d 399 (1993). There is no need to examine the question of exploitation here, because ORS 810.410(3) defines the authority of officers to seize or to search during a traffic stop. We give effect to the statute by denying the state the use of evidence that it would not have obtained had the officer observed the statutory limits on his authority. State v. Porter, supra, 312 Or at 121. Even if the “exploitation” issue was a relevant inquiry here, the state did not prove that no exploitation occurred. Because the request for consent itself was the unauthorized action, police necessarily exploited that illegality to obtain the consent to search.