dissenting.
The majority says that, as George and defendant were walking toward George’s office, George noticed that defendant was holding a metal canister. George asked him if the canister was “the article or contained the articles that I was looking for.” Defendant replied that it was.
There should be no doubt that George’s question to defendant constituted interrogation. It was “reasonably likely to solicit [sic] an incriminating response from the subject.” State v. Barmon, 67 Or App 369, 377, 679 P2d 888 (quoting State v. Fitzgerald, 60 Or App 466, 471, 653 P2d 1289 (1982)); rev den 297 Or 227 (1984). See also Rhode Island v. Innis, 446 US 291, 301, 100 S Ct 1682, 64 L Ed 2d 297 (1980). Contrary to the majority’s conclusion, there should also be no doubt that, when George asked defendant that question, defendant was in a “compelling setting.” State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990); State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987); see also State v. Carlson, 311 Or 201, 808 P2d 1002 (1991). Defendant was walking to a police office in the company of 4 police officers; 3 were in uniform and the fourth was a narcotics investigator. Defendant knew that the police had information about drugs in his canister. Under Article I, section 9, George should have given defendant Miranda-type warnings before asking him about the canister.
Moreover, George’s improper interrogation of defendant deprived him of any meaningful choice .with respect to George’s subsequent request that defendant give him the canister. At that time, in violation of Article I, section 12, George had already obtained defendant’s admission, in effect, *25that the canister contained contraband. George thereby exploited his illegal conduct to gain possession of the canister and then exploited that conduct by searching the canister in the police office. The majority weakly asserts that defendant did not tell George not to open it. The state did not carry its burden of proving, by a preponderance of the evidence, that defendant’s consent to the search of the canister was voluntary. State v. Kennedy, 290 Or 493, 501, 624 P2d 99 (1981); State v. Stevens, 311 Or 119, 137, 806 P2d 92 (1991).
I dissent.