dissenting.
I first take issue with the majority’s failure to clearly distinguish the fourth and fifth amendment issues. The majority correctly summarizes the law in Dunaway v. New York, 442 U.S. 200, 60 L.Ed. 2d 824 (1979), in stating that a lawfully obtained confession must be suppressed if it is the result of a fourth amendment violation unless found to be a product of free will. Thus the focus must be on whether there was a seizure within the meaning of the fourth amendment’s prohibition against seizure prior to the confession. In applying this law to the facts, the majority relies on fifth amendment factors irrelevant to the question of the seizure: we are told repeatedly that the defendant was questioned in a small room, and that he was questioned for 3V2 hours after being given his Miranda warnings and before he confessed. The events which transpired subsequent to the time the defendant was given his Miranda warnings do not bear on the question of the seizure. The majority concedes that defendant’s confession was voluntary for purposes of the fifth amendment. Thus, absent an unreasonable “seizure,” the interrogation was lawfully conducted and the confession was legally obtained.
“[A] person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” *366United States v. Mendenhall, 446 U.S. 544, 553, 64 L.Ed. 2d 497, 509 (1980). Seizure of an individual occurs at a given point in time when it is determined that there has been an intrusion of the constitutionally protected right to be secure in his person. See Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889 (1968). Thus, for purposes of determining whether this defendant was seized, the proper circumstances, and the only circumstances relevant to the inquiry are those surrounding his decision to leave his home and accompany the officers elsewhere for questioning.
Secondly, I disagree with the majority’s conclusion that defendant’s confession must be suppressed as the result of an “unlawful seizure.” On this question, the pertinent inquiry is:
1. Was there a fourth amendment violation; that is, was there a seizure tantamount to an arrest or a technical arrest?
2. If so, was there probable cause?
3. Was the confession the result of the seizure — or was the confession, nevertheless, a product of free will?
I
The most recent statement concerning fourth amendment violations is enunciated in United States v. Mendenhall, 446 U.S. 544, 64 L.Ed. 2d 497. In that case the Court stated: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554, 64 L.Ed. 2d at 509. As the majority correctly points out, this is an objective test. Age, education and race of the defendant are not decisive factors. It is not necessary that the defendant be expressly told that he is free to leave or that he need not cooperate. Id.
Certain objective factors have been considered in determining whether there has been a seizure of the person. These are:
1. The threatening presence of several officers
2. Display of a weapon
3. A physical touching of the person
4. The use of language or tone of voice indicating that compliance might be compelled.
*367Id. at 554, 64 L.Ed. 2d at 509.
A careful reading of the majority opinion suggests an unwarranted emphasis on the two factors which the Mendenhall Court specifically rejected: the age of the defendant (or the age difference between the defendant and the officers), and the fact that defendant was never expressly told that he was free to leave or that he need not cooperate. Furthermore, in applying the facts to the objective factors listed above, we find that:
1. Only one officer came to the defendant’s home. This officer was known to the defendant, and had, on a prior occasion, questioned the defendant at the police station and released him after a short period of time.
2. There was no display of a weapon.
3. There was no physical touching of the defendant. In fact, he was permitted to return to the inside of his house for his shoes while the officer waited in his car.
4. The only possible basis for finding that defendant was “seized” was the statement of the officer that he had come “to pick up” the defendant. He then asked the defendant to accompany him to the office.
Disregarding the factors surrounding the questioning after Miranda warnings were given, and placing the age factor, and the fact that defendant was not told he was free to leave, in proper perspective, we are left with little else except a single phrase, “to pick up,” to support a finding that defendant’s fourth amendment rights were violated. Although this phrase might indicate that “compliance might be compelled,” standing alone it does not suffice to justify the conclusion that defendant’s fourth amendment rights were violated and that as a result of a purported “seizure” of his person, his confession must be suppressed.
II
The majority opinion states that “[t]he State has not contended at trial or during this appeal that probable cause existed to arrest the defendant prior to his confession.” Assuming arguendo that this defendant was technically arrested or detained without a warrant, if the officer had probable cause to arrest the defendant, no fourth amendment violation could have taken place. I *368would recommend, as did Justices Powell and Rehnquist in their concurring opinion in Brown v. Illinois, 422 U.S. 590, 45 L.Ed. 2d 416 (1975), that the case be remanded for findings on this important question. There is ample evidence in the record that would support a conclusion that the decision to question the defendant was based on more than an expedition embarked upon for evidence “in the hope that something might turn up.” Id. at 605, 45 L.Ed. 2d at 428. The investigation into the arson had been continuing for some time; the defendant was a suspect and had been questioned; additional evidence had come to the attention of the officers suggesting that the defendant was, in fact, responsible for the arson.
III
In Brown, the Supreme Court rejected the per se rule that Miranda warnings alone are sufficient to attenuate the taint of an unconstitutional arrest, stating that “whether a confession is the product of a free will . . . must be answered on the facts of each case. No single fact is dispositive” although “the Miranda warnings are an important factor.” Id. at 603, 45 L.Ed. 2d at 427. “The temporal proximity of the arrest and the confession, the presence of intervening circumstances . . . and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” Id. at 603-604, 45 L.Ed. 2d at 427 (emphasis added).
Given the deterrent purposes of the exclusionary rule to remove the possibility of police misconduct, whether the police misconduct was flagrantly abusive of fourth amendment rights is a critical, if not the most important focus for inquiry. For purposes of this inquiry, our own statutory exclusionary rule offers guidance. It provides:
§ 15A-974. Exclusion or suppression of unlawfully obtained evidence. — Upon timely motion, evidence must be suppressed if:
(1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or
(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining wheth*369er a violation is substantial, the court must consider all the circumstances, including:
a. The importance of the particular interest violated;
b. The extent of the deviation from lawful conduct;
c. The extent to which the violation was willful;
d. The extent to which exclusion will tend to defer future violations of this Chapter. (1973, c. 1286, s. 1.)
The official commentary is of particular interest:
An important point to note is that subdivision (1) only requires suppression of evidence if its exclusion is constitutionally required. It is possible then that evidence may be gathered in violation of constitutional rights, but suppression is not the sanction to be applied unless authoritative case law so declares. There are indications that the Burger Court will moderate some of the exclusionary rules, and this section is designed not to freeze North Carolina’s statutory law into patterns set solely by current case law.
(Emphasis added.)
I would hold that there is no authoritative case law requiring the suppression of this evidence; in fact, a reading of the Supreme Court decisions on this issue militates against the exclusion of the evidence. Nor can I agree that the alleged violation of defendant’s fourth amendment rights was “substantial” when the following are considered:
a. Any intrusion on defendant’s interest in personal privacy was not unnecessarily extensive.
b. The officer’s conduct was not unreasonably abusive or threatening; that is, the officer acted in good faith and conducted himself with professional courtesy and demeanor.
c. There was indicia of probable cause sufficient to indicate that the violation was not willful.
d.The exclusion of the subsequent lawfully obtained confession would have no tendency to deter this alleged violation. *370Under these circumstances, I would hold that the Miranda warnings given to the defendant were sufficient attenuation to remove the taint of any purported seizure.
I would vote to rely on the “ ‘learning, good sense, fairness and courage’ ” of the trial judge who made the determination in the first instance, and allow the confession into evidence (Id. at 612, 45 L.Ed. 2d at 432 (Powell, J. and Rehnquist, J. concurring)), or in the alternative to remand for findings on the existence of probable cause.
Justices COPELAND and martin join in this dissenting opinion.