dissenting.
I would affirm the trial court and, therefore, dissent.
The issue is whether the officer was authorized to request to search the truck. In addressing that issue, we are bound by the trial court’s findings and draw such inferences from those facts as are consistent with the trial court’s ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Officer Ayres cited defendant, placed “zebra” stickers on the license plates,* 1 *returned an identification card *378and told him he could go. Ayres was in uniform and his car displayed blinking amber lights visible from the rear. He asked defendant for consent to search the truck pursuant to a policy of the Oregon State Police to ask for consent to search stopped cars. 2 The request was made before defendant began to leave or before there was any significant break in the action surrounding the stop. The court made no finding that Ayres’ words terminated the stop or that defendant knew that he was free to leave and ignore Ayres’ request.
ORS 810.410(3) specifies the officer’s authority:
“ (3) A police officer:
jji íJí
“(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.”
In State v. Porter, 312 Or 112, 120, 817 P2d 1306 (1991), the Supreme Court held:
“ORS 810.410(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.” 312 Or at 120. (Emphasis in original.)
In Porter, the officer stopped the defendant’s car, saw an open beer can in it and searched for further evidence of an open container violation. He did not ask for consent. The *379court suppressed evidence found during the search because, once the officer discovered an open beer can, nothing more was required to establish the infraction. The court reviewed the legislative history of ORS 810.410(3) and observed:
“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)], supra, 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.’ ” 312 Or at 119.
The court also described the type of search that ORS 810.410(3)(b) does not prohibit:
“This is not a case in which, while acting within the scope of the statute permitting investigation of the traffic infraction, the officer observed something that gave him probable cause to investigate a crime (when, of course, the warrant requirement still must be observed or excused). Had the officer observed evidence of a crime in plain view, ORS 810.410(3)(b) would not apply to an ensuing search; the officer’s authority in those circumstances would derive from other sources. See State v. Brown, 301 Or 268, 276, 721 P2d 1357 (1985) (describing ‘automobile exception’ to warrant requirement when police have probable cause to believe that a mobile vehicle, stopped by police, contains evidence of a crime). When the officer seized the open beer can in this instance, he did not observe any evidence of a crime in plain view. It was only after he undertook a separate search that anything else came to light. Under ORS 810.410(3)(b), he was not permitted to have undertaken that separate search. ’ ’ 312 Or at 120.
Porter’s proscription on any police action, specifically including a search, without a basis independent of the traffic infraction, is consistent with our established view 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 traffic 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).
*380The majority argues that the officer’s statement to defendant that he was free to go transformed the traffic stop into a police-citizen encounter that did not restrain defendant’s liberty. See State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991). According to the majority, because of the transformation, the officer was not restricted from requesting a consent to search and the consent was voluntarily given, because defendant knew that he was free to leave.
That reasoning is erroneous. The legislature has chosen to restrict an officer’s authority in the context of a traffic stop. Unlike in a police-citizen encounter in a park or on a sidewalk, an officer is unauthorized to stop or detain a driver when the reason for the stop no longer exists. State v. Dow, 116 Or App 542, 545, 842 P2d 430 (1992). At that point, ORS 810.410(3)(b) and State v. Porter forbid any further police action, unless it has a basis independent of the traffic infraction.
As the trial court recognized, a uniformed officer “detains” a stopped citizen by telling him that the stop is “over” and then asking him to search the car for no reason independent of the purpose of the stop. Such a request under these circumstances would detain any reasonable person from returning to his prior course of travel. It is unauthorized because it extends the detention of the driver beyond the minimum possible intrusion that the legislature meant to permit. As Porter makes clear, during a traffic stop, the police may investigate only those matters that are reasonably related to the purpose of the stop, and may detain the driver only for as long as it is necessary to achieve that objective.
State v. Allen, 112 Or App 70, 826 P2d 127, rev den 314 Or 176 (1992) does not justify the majority’s result. State v. Allen did not cite or discuss State v. Porter or the limitations on the officer’s authority in ORS 810.410(3)(b). State v. Mercado, 105 Or App 582, 805 P2d 744, rev den 311 Or 482 (1991), on which State v. Allen relied, upheld a consent search that resulted from mere conversation between an officer and a citizen. Mercado did not cite or discuss Porter. This case is yet another instance when the majority “downplays the significance of State v. Porter” in order to reach a desired but incorrect result. State v. Mesa, 110 Or App 261, 266, 822 P2d 143, rev den 313 Or 211 (1992) (Joseph, C. J., dissenting). I *381would not follow State v. Allen here because it failed to analyze or cite the relevant statute and the most relevant authority from the Oregon Supreme Court.
Even if the trial court’s analysis was legally flawed, the majority should not make the factual findings about consent that it prefers from the record. It is the trial court’s task, in the first instance, to find the facts, including whether the officer’s words actually terminated the stop and whether defendant gave a voluntary, intelligent consent to search. State v. Wise, 305 Or 78, 81, 749 P2d 1179 (1988). The state has not carried its burden on those matters in the forum where the facts must be established: the trial court.
I dissent.
De Muniz and Leeson, JJ., join in this dissent.Or Laws 1989, ch 891,§2, which took effect January 1,1990, provides, in part:
“(1) [A] police officer shall * * * mark each registration plate of the vehicle with a sticker in accordance with procedures prescribed by rule by the division if the driver of the vehicle is * * * issued a citation for:
“a) Driving while suspended or revoked that is a felony under ORS 811.182(3);
“b) Driving while suspended or revoked if the suspension or revocation was for any violation of the financial responsibility laws of this state * *
The trial court found that “Ayres wrote out traffic citations to the Defendant for driving while suspended, infraction, and driving without insurance.” (Emphasis supplied.) The record does not explain Ayres’ authority to apply “zebra” stickers to defendant’s plates for the infraction of driving while suspended, or the effect of that act on defendant’s ability to leave the scene. Or Laws 1989, ch 891, § 3, provides, in part:
*378“Any police officer who sees a vehicle with registration plates marked as provided in section 2 of this Act being operated on a highway or on premises open to the public may stop the vehicle for the sole purpose of ascertaining whether the driver is operating the vehicle in violation of ORS 811.175 or 811.182.”
Ayres testified:
“Q. [D]o you receive any training in which it was recommended to you that during traffic stops that you could ask for consent to search for narcotics?
“A. Yes.
“Q. And as part of your training — is part of your training also that before you ask for this consent that you return all the documents that you’ve collected from them?
“A. Yes.”