dissenting.
The majority holds that, under Article I, section 12, and the Fifth Amendment, a person in full custody need not be advised before he is questioned that he has the right to consult an attorney before questioning begins and to have the attorney present during questioning. Because I believe that that advice before custodial questioning begins is fundamental to the protection of a person’s rights under both Article I, section 12, even if it is not under the Fifth Amendment, I dissent.
*618I agree with the majority that, under Article I, section 12, the police, before interrogating a person in custody, must give the person the same advice or warnings that are required by the Fifth Amendment under Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). However, the majority goes on to hold that warnings that fall short of Miranda’s mandate are sufficient. This case is the first one to decide exactly what warnings are required under the Oregon Constitution before custodial questioning can begin, and I believe that the majority gets us off to a very bad start, as well as misinterprets Miranda and its progeny.
In State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983), the court refused to require more detailed warnings than Miranda requires before police questioning, but no Oregon case has held, as the majority now does, that less detailed warnings are acceptable under Article I, section 12. That is not to say that the warnings must be in the exact words of Miranda, but their substance must meet its basic requirements. When defendant was arrested, Officer Hannigan advised him:
“It’s my duty as a police officer to advise you of your rights. You have the right to remain silent, anythingyou say can and will be used against you in a court of law. You have the right to an attorney. If you can’t afford to hire an attorney, one will be appointed to represent you. If you do give a statement at any time, you can stop at anytime you wish. Do you understand these rights?”
Defendant was not told that he was entitled to consult with an attorney before questioning and to have one present during interrogation until he had arrived at the police station, when he was read his rights from a standard Miranda card. By that time, he had already incriminated himself in response to questions. ■ He then gave a tape-recorded statement reiterating what he had said earlier. The majority says that it is sufficient that he was told that he had the right to an attorney and that, if he could not afford one, one would be appointed for him. However, Miranda requires that he be advised of both of those rights. After discussing the importance of the assistance of counsel in the face of interrogation, the Court said in Miranda:
*619“Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” 384 US at 471. (Emphasis supplied.)
The Court went on to discuss the right of indigents to have appointed counsel at the time of interrogation:
“In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.” 384 US at 473. (Emphasis supplied.)1
Although defendant was advised that he had the right to an attorney and that one would be appointed for him if he could not afford one, he was not told, as Miranda requires, that he had the right to consult with an attorney before being questioned and to have the attorney present during questioning.2 In my opinion, the advice that was omitted is fundamental to defendant’s state constitutional right not to be compelled to *620incriminate himself, just as it is the “absolute prerequisite to interrogation” under the Fifth Amendment. Accordingly, I would hold that defendant’s statements during the initial questioning before he was told that he had the right to consult an attorney before questioning and to have his attorney present during the questioning should have been suppressed.
Inexplicably, the majority relies on two United States Supreme Court decisions, California v. Prysock, 453 US 355, 101 S Ct 2806, 69 L Ed 2d 696 (1981), and Duckworth v. Eagan, 492 US 195, 109 S Ct 2875, 106 L Ed 2d 166 (1989), decided after Miranda, in support of its contention that the warnings given here were adequate. Even if we were to consider post -Miranda decisions as controlling under Article I, section 12, they would require reversal here. In Prysock, the respondent was advised of his right to have a lawyer present before and during interrogation and to have a lawyer appointed at no cost if he could not afford one. The California Court of Appeals had held that, because he had not been expressly advised that he had the right to have an attorney appointed before further questioning, the warnings were inadequate. The Supreme Court held: “These warnings conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to and during interrogation,” 453 US at 361, and they, therefore, complied with the requirements of Miranda. That is not this case.
The majority’s reliance on Duckworth is even more perplexing. The defendant there was read this advice before being questioned initially by the police:
“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You.have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.” 492 US at 198. (Emphasis in original.)
*621He signed the form and gave an exculpatory explanation for his activities. He was then locked up, and about 29 hours later he was questioned again. Before that questioning began, he was read this advice:
“1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say may or will be used against me in a court of law.
“2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.
“3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.
“4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.
“5. That ifl do not hire an attorney, one will be provided for me.” 492 US at 199.
The defendant read the form back to the officers and signed it, then confessed.
The issue was whether the advice that counsel would be appointed “if and when you go to court,” which was. included in the first advice, rendered the advice defective, because it might have caused the defendant to have linked his right to appointed counsel before interrogation with a future event. The court held that, because the defendant had been advised expressly that he had the right to the advice of an attorney before questioning and to have him present during questioning, the requirements of Miranda were fulfilled. It said:
“Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. The Court in Miranda emphasized that it was not suggesting that ‘each police station must have a ‘station house lawyer’ present at all times to advise prisoners.’ 384 US, at 474, 16 L Ed 2d 694, 86 S Ct 1602, 10 Ohio Misc. 9, 36 Ohio Ops 2d 237, 10 ALR3d 974. If the police cannot provide *622appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. Ibid. Here, respondent did just that.” 492 US at 204. (Emphasis supplied; footnote omitted.)
Neither California v. Prysock, supra, nor Duckworth v. Eagan, supra, supports the majority’s holding that, so long as defendant was advised of his right to counsel and that one would be appointed if he could not afford one, Miranda was satisfied. Those cases are relevant only when the defendant has first been advised of his right to consult an attorney before questioning began and to have one present during questioning. That was not done here.
The majority’s reliance on 2 decisions from the Second Circuit Court of Appeals3 is anomalous. They fly in the face of Miranda and do not bind us, even if we were resolving defendant’s Fifth Amendment rights, rather than just his rights under Article I, section 12. Other federal circuit courts have gone to the other extreme.4 However, even if the United States Supreme Court, post -Miranda, has changed the ground rules, Oregon has adopted Miranda, not necessarily its progeny. By adopting a United States Supreme Court analysis under the United States Constitution, we do not decide, or even imply, that all future elaborations or changes of the analysis by that court will also apply to a claim under the Oregon Constitution. State v. Kell, 303 Or 89, 734 P2d 334 (1987). Accordingly, defendant’s confession while he was in the police car must be suppressed.
*623The question remains whether the later confessions made at the police station must also be suppressed, even though defendant was properly advised of his rights before that questioning began. Defendant was arrested a little after 5:00 p.m. In the police car, after being given the Miranda warnings at issue, defendant, in response to questions, explained to Hannigan what had happened the night of the fight. He admitted that, at one point, the fighting stopped long enough for him to walk over to the street corner and pick up “some type of object” that he used to strike the victim on his head or on his chest, he was not certain which. The victim fell down, and he and two friends, whom he named, ran to one of the friends’ mother’s house.
It is unclear what happened during the hour and a half following defendant’s arrival at the police station at about 5:15 p.m. Hannigan testified that they discussed with defendant the witnesses “and that type of thing.” In any event, at 6:38 p.m., Hannigan was determined to get defendant’s statement on tape. On the tape, Hannigan stated, “We’ve been talking for the past, oh, hour and a half and, like I said, we’re gonna go through it again on tape, o.k.?” Defendant was advised properly of his Miranda rights from a standard card, and the officers then recorded a statement very similar to, but more detailed than, the statement that defendant had made earlier in the police car. Defendant stated that, after striking the victim with a chunk of asphalt, the victim “hit the ground and just rolled over and then back onto his back.” He did not remember whether the victim moved after that and claimed that he was not close enough to see whether the victim was breathing.
A third and final statement was tape recorded the following morning at 9:15 a.m., the purpose of which was “just clearing up his statement from the preceding evening, getting more detail as to what happened.” That statement was also taken after adequate Miranda warnings were given.
The state does not argue that, even if the first statement was not admissible, the subsequent statements were; its only contention is that defendant’s subsequent statements are not tainted fruits, because the first statement was not poisoned. When, during the first interrogation, defendant admitted that he had struck the victim with an object and that *624the victim fell to the street pavement, after which defendant ran from the scene with two named friends, the “cat was out of the bag.” The later statements merely clarified details. The delay in time and change of place was insufficient to dissipate the taint of the earlier violation of his rights. Once he had “let the cat out of the bag,” defendant’s later confessions were the fruits of the first and were similarly poisoned. State v. Garrison, 16 Or App 588, 602, 519 P2d 1295 (1974).
Because defendant’s rights under Article I, section 12, and the Fifth Amendment were violated, I would reverse and remand for a new trial.
Accordingly, I dissent.
The majority has condensed the two quotations from Miranda into one short quote, 112 Or App at 613, giving the impression that the Court did not treat the subjects as separate requirements. That is wrong and misleading.
I am aware that the court in State v. Lowry, 245 Or 565, 566-67, 423 P2d 172 (1967), recognized the right of the defendant to counsel before and during interrogation and interpreted the advice that he was given as adequately apprising him of that right. Presumably, that case was decided under the Fifth Amendment. Although the events had occurred before Miranda was decided, the opinion was written after-wards. It cites no constitutional provision, state or federal, and does not mention Miranda.
In State v. Williams, 1 Or App 30, 33, 458 P2d 699 (1969), applying the federal constitution, this court said that the right to have counsel present during questioning is an “absolute prerequisite to interrogation.” In State v. Arnold, 9 Or App 451, 455, 496 P2d 919, rev den (1972), we held that advisingthe defendant that he had the right to consult with an attorney prior to any questioning was sufficient.
United States v. Floyd, 496 F2d 982 (2nd Cir), cert den 419 US 1069 (1974); United States v. Lamia, 429 F2d 373 (2nd Cir 1970), cert den 400 US 907 (1970).
In United States v. Noti, 731 F2d 610, 615 (9th Cir 1984), the defendant was advised:
“Michael, you have the right to remain silent, the right to the services of an attorney before questioning, if you desire an attorney, and cannot afford one, an attorney will be appointed by the Court with no charge to you. Any statement you do make can and will be used against you in a court of law. Do you understand each of these rights?”
The court held that the warnings were inadequate, because the defendant was not told that his attorney could be present during questioning. In Windsor v. United States, 389 F2d 530, 533 (5th Cir 1968), the court held that “merely telling [a defendant] that he could speak with an attorney * * * is not the same as informing him that he is entitled to the presence of an attorney during interrogation * * (Emphasis supplied.)