(dissenting) — I respectfully dissent because the State failed to show Mr. Jensen's consent was secured "by means sufficiently distinguishable to be purged of the primary taint" of the initial, illegal search which resulted in the seizure of the marijuana. State v. Byers, 88 Wn.2d 1, 8, 559 P.2d 1334 (1977) (quoting from Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)), overruled in part in State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984).
The purpose of the rule excluding tainted evidence is to promote respect for the Fourth Amendment by keeping out evidence obtained in exploitation of an illegal arrest or search. Wong Sun, at 485. That purpose is not served where the causation factor of the illegality is so weak, or has been so attenuated as not to have been an operative factor in causing or bringing about the confession. State v. Vangen, 72 Wn.2d 548, 555, 433 P.2d 691 (1967). Here, however, the causal chain is short and unbroken. As in Byers, there was no significant intervening event or considerable lapse of time between the seizure and the consent.3 Thus, " [t]here . . . [is] no basis for segregating the two, no justification for upholding the one while denouncing the other." Byers, at 8.
The crux of my disagreement with the majority is its *494holding there were substantial intervening circumstances between the illegal search and Mr. Jensen's consent. The majority relies on the facts that (1) Mr. Jensen was advised that he could refuse to consent, and (2) he also was allowed to call his sister, although she apparently did not answer. While the fact Mr. Jensen was advised of his Miranda rights is important, it is not the only factor the court considers in these situations. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, 2261 (1975). In Byers and Brown, the defendants' convictions were reversed on the ground that their confessions were tainted although made following Miranda warnings which advised them they had the right to refuse to talk to the police.
In both Byers and Brown, the courts relied on the facts that the defendants confessed within 2 hours of their illegal arrests and that no significant events intervened between the arrests and the confessions. Byers, at 9; Brown, at 604. The court in Byers also noted at page 9 that the defendants confessed because they thought they were "'had'", i.e., they were implicated by the evidence discovered as a result of the illegal arrest.
Here, Mr. Jensen orally consented to the search of his car immediately following the discovery of the marijuana, while en route to the Grant County Jail. His written consent to the search was obtained less than 2 hours later. During this period, he did not have any contact with friends, relatives or counsel — in short, with anyone other than law enforcement personnel. Although Mr. Jensen does not specifically argue he consented because he believed it was useless to resist after discovery of the marijuana, such a conclusion is logical given the fact that he was in custody and knew his vehicle was in the control of the police.
Finally, the majority observes that Mr. Jensen was legally arrested and Trooper Richmond did nothing to frighten or intimidate him. These facts support a finding that Mr. Jensen's consent was voluntary under the Fifth Amendment, but they are immaterial to the issue of whether the consent was fruit of the illegal search and, *495thus, was obtained in violation of the Fourth Amendment. The purpose of the exclusionary rule, promoting respect for the Fourth Amendment, would be eroded if law enforcement personnel could cure their illegal conduct by properly handling other aspects of a case.
In view of the foregoing, I would hold Mr. Jensen's consent was tainted by the illegal search. The illegal action of the officer commenced an unbroken chain of events leading to Mr. Jensen's conviction. If we allow the fruit of this illegal action to be used as evidence, then the Fourth Amendment is a collection of words only and has no practical effect.
Review denied by Supreme Court October 30, 1986.
An example of a significant intervening event is found in Wong Sun, at 491, where the defendant was released on his own recognizance between his illegal arrest and his confession and several days elapsed between the two. See also United States v. Owen, 492 F.2d 1100, 1107 (5th Cir. 1974) (defendant released on bail, returned voluntarily 4 days later to give statement); Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir. 1965) (5 days elapsed between arrest and confession and the defendant spoke with his attorney before the confession); State v. Vangen, supra at 555 (defendant was confronted with legally seized evidence against him after first refusing to confess). No comparable events occurred between the illegal search and Mr. Jensen's consent here.