dissenting.
The majority reverses the trial court’s decision based on an issue that the state could have, but did not, raise at the trial court. I would follow ORAP 5.45 and refuse to consider that issue. Based on the issues that the state properly preserved, I would vacate the trial court’s decision suppressing evidence and remand for additional findings.
The trial court concluded that the inquiry that resulted in defendant granting consent for the search violated ORS 810.410(3)(b), as the appellate courts construed it in State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995), State v. Hadley, 146 Or App 166, 932 P2d 1194 (1997), and similar cases. On appeal, the state makes two arguments in response. First, it argues that the search did not violate the statute. It next asserts that, under ORS 136.432 (section 1 of Senate Bill 936 (SB 936)), which the legislature adopted after the trial court’s decision but which applies retroactively, suppression is no longer appropriate for an officer’s violation of a statute that defines the officer’s authority. On the first issue, I would hold, under the Supreme Court’s recent decision in State v. Toevs, 327 Or 525, 964 P2d 1007 (1998), that the trial court needs to make appropriate findings relevant to a question that it did not previously consider. I would not consider the second issue because the state failed to preserve it. The state could have raised the identical issue under Ballot Measure 40 (Measure 40) of the 1996 general election, which SB 936 implements, but did not do so.
I first consider whether the trial court was correct under the law as it existed before the effective date of SB 936. If the evidence was admissible under the previous law, we would not need to consider the arguments concerning the validity of the new statute. The trial court granted defendant’s motion to suppress on the ground that the officers exceeded their authority under ORS 810.410(3)(b) when they *23asked defendant to consent to the search. On appeal, the state asserts both that our decision in Hadley, on which the trial court relied, was incorrect and that the officer’s conduct was proper under that case. In Hadley, we held that the essential issue is whether the officer gave the defendant a “real time” opportunity to move on before renewing contact. We explained that there must be “a distinct temporal ‘break in the action’ between an officer’s indication that a motorist is free to go and any unrelated inquiries.” 146 Or App at 171-72.
After the briefing and argument in this case, the Supreme Court in Toevs adopted a different approach to resolving when a traffic stop has ended and the officer is no longer acting under the authority of the statute, thus permitting the officer to seek permission to search. The court stated that there must be a fact-specific inquiry into the totality of the circumstances to determine two things: (1) whether the defendant subjectively believed that the officer significantly restricted or interfered with the defendant’s liberty or freedom of movement and (2) whether that belief was objectively reasonable. The first question is one of fact for the trial court, while the second is one of law on which we exercise our independent judgment. Id. at 535.
In State v. Corning, 157 Or App 379, 971 P2d 894 (1998), as in this case, the trial court relied on the pre-Tbeus law in deciding to suppress the evidence in issue. On the state’s appeal, we applied the Toevs analysis to facts that are similar to those in this case. We stated that under Toevs the trial court should have made an express finding of whether the defendant subjectively believed that the officer had substantially interfered with her liberty or freedom of movement. The court could rely on the totality of the circumstances in making that finding. We did not, however, remand Corning for the court to resolve that question because we held that, under the facts of the case, even if the defendant had subjectively believed that her liberty was significantly restricted, such a belief would not be objectively reasonable. Id. at 383-84. We therefore reversed the order suppressing the evidence.
The issues that we considered in Corning, in deciding whether a subjective belief would be objectively reasonable, included the temporal break in the action, whether the *24officer returned items to the defendant, whether the officer told the defendant that she was free to go, whether her path to leave was open, whether she attempted to leave, and whether the officer continued to show his authority, such as by leaving his overhead lights or spotlights turned on. We noted that the officer did not have to use any particular words to show that the traffic stop had ended and that the stop could end before the defendant actually drove away. Id. at 384. In Corning, the officer turned off his overhead emergency lights and his spotlight, told the defendant that he was not going to cite her, and spent the next 60 seconds in a separate conversation with another officer. When he again spoke to the defendant, she jumped in her seat and said that he had scared her. We concluded that the defendant could not reasonably believe that the officer had continuously asserted his authority over her.
With one exception, the facts in this case are similar to those in Corning. After he completed his paperwork, the officer turned off his overhead lights, returned the driver’s license and registration to defendant, gave him the citation, and said “adios.” Defendant was in the driver’s seat, the car door was closed, and he began to put the car in gear. To this point, there is no significant difference with Corning. However, in this case the officer waited only approximately seven seconds before asking to talk with defendant again, interrupting his attempt to leave. I would hold that that difference in time may lead to a difference in result.1 Seven seconds is a short time, barely enough for defendant to start his car moving. In contrast to the majority, I believe that under all the circumstances defendant could well experience the officer’s action in reinitiating contact after so short a time, and as he was preparing to leave, as a continuation of the previous stop. The very fact that the officer interrupted defendant’s efforts *25to leave could lead to that conclusion. If defendant believed that the officer was continuing to exercise his authority when he again asked to speak with him, thus, that belief was objectively reasonable. Whether that was his belief is something that the trial court should be allowed to determine on remand.
I turn to the issues surrounding ORS 136.432. The trial court entered its order suppressing the evidence on May 19,1997. SB 936 became effective on June 12,1997, after the trial court’s action, but its provisions apply to all criminal actions pending on or commenced after December 5,1996. Or Laws 1997, ch 313, § 38. Section 1, which is now ORS 136.432, provides:
“A court may not exclude relevant and otherwise admissible evidence in a criminal action on grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:
“(1) The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of hearsay; or
“(3) The rights of the press.”
The state relies on this statute to support its position on appeal. In response, defendant makes a number of arguments attacking the validity of the statute. I would consider only his argument that the state failed to preserve the issue.
The state did not rely on ORS 136.432 at the trial court, for the not surprising reason that the legislature had yet to adopt it. If that were all there was to defendant’s non-preservation argument, then it would not detain me long. However, as defendant points out, SB 936 was intended to implement Measure 40, which was also effective on December 5, 1996. Section 1(f) of Measure 40 provided that crime victims have the right “to have all relevant evidence admissible against the criminal defendant[.]” ORS 136.432 relates to that section of Measure 40. The state did not refer to Measure 40 at the trial court or otherwise suggest that a violation of ORS 810.410(3)(b) should not result in suppression of the *26evidence. Rather, it devoted its entire effort to showing that there had been no violation.
In State v. Hitz, 307 Or 183, 766 P2d 373 (1988), the Supreme Court described what a party must do in order to preserve an issue for appellate review. It distinguished between “raising an issue at trial, identifying a source for a claimed position, and making a particular argument. * * * The first ordinarily is essential, the second less so, the third least.” Id. at 188 (emphasis in original). On appeal, the state makes an argument and identifies ORS 136.432 as the source for it. It did not, however, raise the issue on which it now relies at trial, even though that issue was available to it through the adoption of Measure 40.2
In response to defendant’s argument about preservation, the state suggests that
“[tjhere are a variety of reasons * * * why a prosecutor reasonably may elect to forgo reliance on Measure 40 — e.g., doubts about whether it will withstand a constitutional challenge, unwillingness to expend the resources to rely on Measure 40 in this case, or adverse prior rulings by the circuit court on that issue — that do not necessarily translate to a willingness to forgo reliance on ORS 136.432, too.”
The state misses the point. The purpose of the preservation requirement is to ensure that the trial court has an opportunity to consider and decide the issue. The reasons that a party may decide not to raise an issue with the trial court— and, thus, not to preserve it for appellate review — are not generally relevant to whether the party has, or should have, preserved the issue. The fact remains that, when this case was before the trial court, Measure 40 was available as a ground for the state to raise the issue of whether a statutory violation requires suppression of the evidence, and the state did not raise that issue. By not doing so, the state waived the issue for appellate review.3 By reaching the issue despite the *27state’s failure to preserve it, the majority excuses it from complying with one of the basic prerequisites to seeking appellate review.
I dissent.
In our previous cases, we determined, based on our independent evaluation of the situation, whether the traffic stop had ended. Toevs changed the focus of the analysis. The issue is no longer whether we believe that the officer was still exercising authority under ORS 810.410(3)(b). Rather, it is whether the defendant believed that and, if so, whether the defendant’s belief was objectively reasonable. The issue, thus, is not what we would conclude if the issue were left to us but whether a reasonable defendant could conclude what the defendant in fact concluded. Because our earlier cases concern a different issue from the one that Toevs makes relevant, they do not directly control the result in this case.
The “issue” in this case, for the purposes of Hitz, is that changes in the law prohibit the suppression of constitutionally admissible evidence simply because an officer violated a statute in acquiring it. Both Measure 40 and ORS 136.432 are authority that support that issue. Although ORS 136.432 was not available at the time of the trial court’s decision, Measure 40 certainly was.
The Supreme Court’s subsequent decision invalidating Measure 40, Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998), does not affect this conclusion. For *27preservation purposes, the question is whether the state had legal support for raising the issue at the trial court, not whether it would have ultimately been successful on appeal if it had done so.