specially concurring.
The issue in this case is whether a motion to suppress evidence seized during a warrantless search of defendant’s apartment was properly denied by the trial court. I agree with the court that it was. I do not agree with the court’s method of analysis or its reasoning. I, therefore, write separately to express what I believe is the proper analysis.
In order to determine whether evidence seized during a warrantless search of defendant’s apartment was properly suppressed, a number of questions leading up to the seizure of the evidence must be considered sequentially, first considering state law where applicable. The questions must be answered sequentially, because the answer to each question may affect the analysis under the remaining questions.
(1) Was the Immigration and Naturalization Service (INS) agent’s initial encounter with defendant valid?
(2) Was defendant’s arrest by the INS agent valid when it was based on an INS warrant that was not supported by oath or affidavit?
(3) Was defendant’s consent to a search of his apartment valid?
(4) Was the resulting warrantless search legal?
(5) Should the evidence obtained as a result of the warrantless search be suppressed?
In contrast to the court’s tangled approach,1 my sequential approach squarely addresses all of the search and *48seizure issues raised by the parties in this case and does so in a way that is internally consistent and true to existing precedents and authorities. The following opinion, which I prepared for the court when the case was initially assigned to me, reflects that approach. It is published in its entirety, with modifications, as a specially concurring opinion.2
The relevant facts are not disputed. Defendant, an alien, was subject to deportation, because he had been convicted of possession of a controlled substance. A federal INS agent obtained an administrative warrant for defendant’s arrest by presenting a certified copy of the judgment of defendant’s conviction to an INS assistant district director, a proper federal official.3 The INS agent informed members of a regional organized crime narcotics task force that he intended to arrest defendant on the deportation warrant at defendant’s apartment. Seven members of the task force, including six Portland police officers and an FBI agent, accompanied the INS agent to defendant’s apartment.
While the task force members were “off to the side” and apparently out of sight, the INS agent knocked on defendant’s door. When defendant opened the door, the agent, speaking in Spanish, identified himself, showed defendant the arrest warrant, and told defendant that he was under arrest. Defendant said, “Okay,” and stepped back, which the agent interpreted as an invitation to enter the apartment. The agent stepped inside the apartment, read defendant the Miranda warnings in Spanish, and asked defendant whether he understood his rights. Defendant stated that he understood his rights.
The INS agent then asked defendant, “Do you have any drugs or guns in the house?” Defendant answered, “No, go ahead and look.” The agent then asked, “Can we search?” *49Defendant answered, “Yes, go ahead.” The seven members of the task force then entered defendant’s apartment, and they and the INS agent searched the apartment. The FBI agent found one 9 mm pistol under defendant’s pillow, and a Portland police officer found a .25 caliber pistol in the closet. In response to questioning, defendant stated that the 9 mm pistol belonged to him and that, although the .25 caliber pistol was not his, it had his fingerprints on it.
Defendant was charged with two counts of being a felon in possession of a firearm, ORS 166.270. Before trial, defendant moved to suppress evidence of the pistols that were seized during the search of his apartment.4 Defendant argued that the federal administrative arrest warrant was invalid under Article I, section 9, of the Oregon Constitution5 and under the Fourth Amendment to the federal constitution6 “because it was unsupported by oath or affirmation”; that the search of his apartment was conducted without a search warrant or a valid consent; and that evidence of the pistol found by the Portland police officer should be suppressed, because “ORS 181.850 forbids local law enforcement personnel from participating in the arrest of a person whose only violation of law is that [he is] residing in the United States in violation of federal immigration laws.”
The trial court denied defendant’s motion to suppress, holding that even if the administrative arrest warrant was defective, the search was lawful because it was conducted pursuant to a valid consent. From his conviction on two counts of being a felon in possession of a firearm, defendant appealed. The Court of Appeals reversed and remanded for a new trial, holding that defendant’s arrest was unlawful because the administrative arrest warrant, issued without a “supporting oath or affirmation,” was invalid under Article I, *50section 9, of the Oregon Constitution, and that, therefore, defendant’s arrest under authority of that warrant was invalid. State v. Rodriguez, 110 Or App 544, 549-50, 823 P2d 1026 (1992). That court also held that “[d]efendant’s consent to the search was obtained by exploitation of illegal police conduct” and, therefore, was invalid. Id. at 551.
We allowed the state’s petition for review to decide whether defendant’s motion to suppress the pistols seized during a warrantless search of defendant’s apartment was properly denied by the trial court. I will examine the sequence of events leading up to the discovery of the pistols in the warrantless search, first considering issues of state law where applicable. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (“[t]he proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim”); State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (stating methodology).
I. VALIDITY OF INITIAL ENCOUNTER
I first consider whether the INS agent acted lawfully in approaching defendant’s door and knocking. That is, I first must determine whether the INS agent’s conduct is either non-coercive, requiring no justification, State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991); State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978), or is with proper authorization by a politically accountable lawmaker, State v. Holmes, supra, 311 Or at 404. A police-citizen encounter without any restraint of liberty (e.g., mere conversation, non-coercive) requires neither authorization from a politically accountable lawmaker nor justification and does not implicate either ORS 131.605 to ORS 131.625 (relating to stopping of persons) or Article I, section 9, of the Oregon Constitution. State v. Holmes, supra, 311 Or at 407.
In this case, the INS agent’s first encounter with defendant was without any restraint of defendant’s liberty and, therefore, required neither authorization from a politically accountable lawmaker nor justification. The agent simply approached the door to defendant’s apartment and knocked. There were no signs warning strangers to stay away. In approaching defendant’s door and knocking, the agent conducted himself in a manner that would be perceived *51as nonoffensive if such conduct were committed by an ordinary citizen. See State v. Holmes, supra, 311 Or at 407, 409-10 (defining “seizure” of a person under Article I, section 9, of the Oregon Constitution; stating that “the pivotal factor” is whether the officer behaved in a way that would be perceived as nonoffensive if the same encounter had taken place between two ordinary people). Defendant acknowledges that “[a] police officer can knock on a citizen’s door; he simply cannot use his authority to obtain entry once the citizen responds to the knock unless he actually has that authority.” See State v. Rhodes, 315 Or 191, 199, 843 P2d 927 (1992) (police officer has the right to stop and walk over to a pickup that was parked oddly on the street late at night); State v. Anfield, 313 Or 554, 563, 836 P2d 1337 (1992) (Unis, J., concurring) (“police officers do not need authorization from a politically accountable lawmaker to stop at the scene of a motor vehicle accident on a public highway or in a public place”). When defendant heard the knock on the door, he was free to ignore it and to maintain his protected privacy interest. Instead, defendant chose to open the door to public view and stand in view of the officer. See State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983) (“a person’s conduct within private premises may be such as to sacrifice the ‘expectation of privacy’ ”). Under the state constitution, the agent needed no authorization from a politically accountable lawmaker or justification for this non-coercive encounter.
Because the INS agent’s initial encounter with defendant at the door was non-coercive and did not intrude on defendant’s reasonable expectation of privacy, there also was no Fourth Amendment seizure of defendant’s person at that time. See Katz v. United States, 389 US 347, 351, 88 S Ct 507, 19 L Ed 2d 576 (1967) (“[wjhat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”); United States v. Santana, 427 US 38, 42, 96 S Ct 2406, 49 L Ed 2d 300 (1976) (person standing in threshold of home did not have any expectation of privacy and, for purposes of the Fourth Amendment, was standing in a public place); United States v. Watson, 423 US 411, 423-24, 96 S Ct 820, 46 L Ed 2d 598 (1976) (warrantless arrest in a public place on probable cause did not violate the Fourth Amendment); United States v. Mason, 661 F2d 45, 46-47 (5th Cir 1981) (defendant had no protective expectation of privacy when he *52answered the door of his home, and warrantless arrest of defendant when he came to the front door of the house where he was living did not violate Fourth Amendment); California v. Hodari D„ 499 US 621, 111 S Ct 1547, 1549-52, 113 L Ed 2d 690 (1991) (no seizure occurs for purposes of Fourth Amendment when a law enforcement official seeks to apprehend a person through a show of authority, but applies no physical force, and the person does not submit).7
II. VALIDITY OF ARREST
Once defendant answered the INS agent’s knock at his door and was in the agent’s view, the arrest was accomplished peacefully and without entry. The arrest was a “seizure” of defendant’s person. If Article I, section 9, of the Oregon Constitution is applicable to the arrest (“seizure”) of defendant’s person, it would require authorization from a politically accountable lawmaker in order to satisfy Article I, section 9, of the Oregon Constitution. State v. Holmes, supra, 311 Or at 407.8
The Immigration and Nationality Act (INA), 8 USC §§ 1101-1557, and the regulations pursuant to that act authorize the arrest of deportable aliens. 8 USC § 1252(a)(1) provides in part:
“Pending a determination of deportability in the case of any alien * * *, such alien may, upon warrant of the Attorney General, be arrested and taken into custody.”
*53In this case, a warrant issued, and there is no claim that the warrant did not satisfy federal statutory requirements. The INS agent, therefore, had authorization from a politically accountable lawmaker9 to arrest defendant pursuant to the warrant.
Defendant argues that the federal administrative arrest warrant is invalid under Article I, section 9, of the Oregon Constitution because it was not supported by an “oath or affirmation.” The state concedes that “[b]ecause there is no evidence in the record of an oath, affirmation or certification of defendant’s status as a[n] alien,” the INS warrant “does not comply, and cannot comply, with the terms of Article I, section 9.” See State v. Noble, 314 Or 624, 632, 842 P2d 780 (1992) (the oath or affirmation clause of Article I, section 9, requires that the issuing magistrate “determine that there exists probable cause supported by a sworn statement. A perusal of court records by the issuing magistrate is not a valid substitute for the statement supported by oath or affirmation). Therefore, I assume that the warrant does not satisfy the requirements of Article I, section 9, of the Oregon Constitution.
However, the INS agent was acting pursuant to a federal statute that affirmatively authorized the warrant. If that warrant was valid under federal law, it cannot be invalidated by state statutory or constitutional law because of the Supremacy Clause of the Constitution of the United States.10 *54Article VI of the Constitution of the United States provides in part:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Emphasis added.)
Nearly two centuries ago, the United States Supreme Court stated:
“If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘anything in the constitution or laws of any state to the contrary notwithstanding.’ ” McCulloch v. Maryland, 17 US 315, 404, 4 Wheat 316, 4 L Ed 579 (1819).
Decisions of this court recognize that our state constitution can provide greater protections than does the federal constitution. See, e.g., State v. Kennedy, supra, 295 Or at 270-71 (state constitution may provide more, less, or the same protection as guaranteed under the federal counterpart). That is true where federal statutory or constitutional law establishes protections, which state law is free to exceed with greater protections. However, where the federal constitution, or federal statutory law enacted pursuant to the *55federal constitution, affirmatively establishes certain conduct as acceptable, that federal grant of authority is controlling over state statutory or state constitutional provisions {e.g., here, in determining the validity of the federal statute and the warrant that it authorized).
Article I, section 8, of the Constitution of the United States gives Congress the power “[t]o establish a uniform Rule of Naturalization.” Further, certain powers to exclude aliens are considered “inherent in sovereignty,” Fong Yue Ting v. United States, 149 US 698, 705, 13 S Ct 1016, 37 L Ed 905 (1893) (quoting Nishimura Ediu v. United States, 142 US 651, 659, 12 S Ct 336, 35 L Ed 1146 (1892)),11 so that “ ‘[t]he power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by [the Supreme Court’s] previous adjudications.’ ” Kleindienst v. Mandel, 408 US 753, 766, 92 S Ct 2576, 33 L Ed 2d 683 (1972) (quoting Lem Moon Sing v. United States, 158 US 538, 547, 15 S Ct 967, 39 L Ed 1082 (1895)).
Congress has enacted and amended the INA, which, among its provisions, grants to an INS officer the authority to make an arrest of the kind at issue in this case. Unless that grant of authority violates the federal constitution {e.g., the Fourth Amendment, discussed ante), there is no claim that the applicable provisions of the INA were beyond the authority of Congress to enact or violated applicable standards of international law. The applicable provisions of the INA, therefore, have supremacy over the laws and protections of the Oregon Constitution (here, specifically, over the limitations on the issuance of warrants in Article I, section 9), and Article I, section 9, of the Oregon Constitution is not applicable in evaluating a valid federal law, the warrant it authorized, or the actions of an INS officer in arresting defendant pursuant to that warrant.
*56This court recently stated:
“If the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9, of the Oregon Constitution. It does not matter where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution. Where that is true, the Oregon constitutional protections apply.” State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (emphasis in original).
State v. Davis described the admissibility of evidence obtained as the result of a violation of Article I, section 9, where that violation (i.e., a law or a warrant that does not satisfy Article I, section 9) is the predicate for the rule. A significant factor not implicated in State v. Davis, however, is the source of the authority under which the officer acts. Here the source of authority for the arrest was an INS warrant authorized by federal law.
Article I, section 9, does proscribe certain “laws”12 and “warrants”:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
The issue at this point in the analysis is simply whether there has been a law or a warrant that violates Article I, section 9; if not, the predicate (a violation of Article I, section 9) for the evidentiary rule, of State v. Davis, supra, does not exist.13 *57Because the law involved in this case is a federal statute that affirmatively authorized the warrant in question, however, the Supremacy Clause of the federal constitution means that Article I, section 9, cannot invalidate the law or the warrant it authorized, assuming that the federal statute was followed (i.e., that the federal officers did nothing beyond the scope of their authority as authorized by federal statute) and that the statute and warrant satisfy the federal constitution, which I consider next.
Assuming that defendant, an alien, has a claim to protection under the Fourth Amendment,14 he was seized within the meaning of the Fourth Amendment when the INS agent placed him under arrest. See California v. Hodari D., supra, 111 S Ct at 1550-51 (defining seizure within the context of the Fourth Amendment) and other Supreme Court cases discussed ante at 51-52. The INS agent had a warrant and had statutory authority to arrest defendant with the warrant pursuant to 8 USC § 1252. Under the federal analysis, I believe that the United States Supreme Court would hold that the INS warrant, based on a court-certified copy of a *58judgment against defendant, satisfies the requirements of the Fourth Amendment. See McGrain v. Daugherty, 273 US 135, 156-58, 47 S Ct 319, 71 L Ed 580 (1926) (warrant issued by committee of Congress upheld even though not based on a separate oath or affirmation apart from oath of office).
The United States Supreme Court has not ruled directly on the validity of an INS warrant based on something less than an oath or affirmation required by the Fourth Amendment for a judicial warrant. However, the Supreme Court has recognized that the administrative warrant procedure is a long-standing one. In Abel v. United States, 362 US 217, 233, 80 S Ct 683, 4 L Ed 2d 668 (1959), the Supreme Court stated:
“Statutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of an executive official. The first of these was in 1798. Act of June 25,1798, c. 58, §2,1 Stat. 571. And see, since that time, and before the present Act, [seven intervening Acts]. To be sure, some of these statutes, namely the Acts of 1888, 1903 and 1907, dealt only with aliens who had landed illegally in the United States, and not with aliens sought to be deported by reason of some act or failure to act since entering. Even apart from these, there remains overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens such as petitioner.”
In United States v. Watson, supra, 423 US at 416-24, the Supreme Court considered the long history and acceptance of warrantless public arrests on probable cause without exigent circumstances, concluding that, in deference to this long history, the Court would not transform a judicial preference for warrants issued by a magistrate into a constitutional rule:
“[W]e decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.” Id. at 423-24.
Indeed, in Abel v. United States, supra, 362 US at 230, the Court cited as its reasons for not addressing the question of *59the validity of an INS warrant where the issue was expressly disavowed below that “[statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time” and that the Court owes “presumptive respect * * * to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy.”
Based on the belief that the United States Supreme Court would hold that an administrative warrant that satisfies the requirements of 8 USC § 1252 does not violate the requirements of the Fourth Amendment, the arrest warrant and the arrest made pursuant to it in this case did not violate the Fourth Amendment. The initial state law assumption of the invalidity of the “warrant” under Article I, section 9, ante at 53, therefore, is superseded because the warrant and the arrest were made by an INS agent pursuant to a valid affirmative grant of federal authority. See note 17, post. The INS warrant and, therefore, the arrest made based on the authority of the warrant, were valid, and the INS agent legally arrested defendant.
III. VALIDITY OF CONSENT TO SEARCH
The search in this case was not conducted pursuant to a search warrant. Although a search is generally deemed unreasonable unless it is conducted pursuant to a valid search warrant, an exception exists for valid consent searches under Article I, section 9, of the Oregon Constitution, State v. Pogue, 243 Or 163, 164, 412 P2d 28 (1966), and under the Fourth Amendment to the United States Constitution, Illinois v. Rodriguez, 497 US 177, 181, 110 S Ct 2793, 111 L Ed 2d 148 (1990); Schneckloth v. Bustamonte, 412 US 218, 219, 93 S Ct 2041, 36 L Ed 2d 854 (1973). See Annot., Validity, Under Federal Constitution’s Fourth Amendment, of Search Conducted Pursuant to Consent — Supreme Court Cases, 111 L Ed 2d 850 (1993). In this case, the state argues that the search was reasonable because defendant consented to it.
“In evaluating whether [a] warrantless search [was] justified, we are bound by the trial court’s findings of historical fact if evidence supports them.” State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991). After noting that the arrest warrant was based on a certified copy of a conviction record *60and judgment, which was served on defendant, the trial court in this case stated: “Thereafter, * * * his rights were given in Spanish to the defendant and the question was posed to him after his rights were given in Spanish, does he have any guns or drugs. The answer was, ‘No, go ahead and search’; what appears to me to be a consensual search.” The record also reflects that the INS agent then asked directly whether they could search the premises. Defendant answered, “Yes, go ahead.” Pursuant to that consent, the INS agent and the seven other officers then searched the apartment.
Defendant claims on appeal that his consent was not valid because it was not voluntary under the totality of the circumstances and because it was tainted by prior illegal conduct.15 The Court of Appeals held that defendant’s *61consent to the search was obtained by exploitation of illegal police conduct, State v. Rodriguez, supra, 110 Or App at 551, but in this case I have found no illegal police conduct before the request to search the apartment.16
In analyzing the voluntariness of consent, this court has looked to federal cases stating that in the context of an encounter with an officer, “the proper test for voluntariness is to examine the totality of the facts and circumstances to see whether the consent was given by defendant’s free will or was the result of coercion, express or implied.” State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983) (citing State v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981), and Schneckloth v. Bustamonte, supra, 412 US at 226-27)); State v. Dimeo, 304 Or 469, 474, 747 P2d 353 (1987). Further, the state bears the burden of proving voluntariness by a preponderance of the evidence in order to justify a search under the consent exception to the warrant requirement. State v. Paulson, 313 Or 346, 352, 833 P2d 1278 (1992). This is true under either Article I, section 9, of the Oregon Constitution, State v. Stevens, supra, 311 Or at 137, or under the Fourth Amendment to the Constitution of the United States, United States v. Matlock, 415 US 164, 177, 94 S Ct 988, 39 L Ed 2d 242 (1974).
*62In this case, although defendant had been lawfully arrested (seized) when he consented to a search, “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, supra, 423 US at 424. That principle continues to be true, at least where a defendant is in custody pursuant to a valid arrest. Cf Florida v. Royer, 460 US 491, 507-08, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (“[b]ecause we affirm the * * * conclusion that Royer was being illegally detained when he' consented to the search of his luggage, we agree that the consent was tainted by the illegality and was ineffective to justify the search”).17
*64Many of the same factors considered in Watson in concluding that the defendant’s consent while in custody was voluntary are present here:
1 ‘There was no overt act or threat of force against [defendant] proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street [here, consent was given in his own home], not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth[, supra], the absence of proof that [defendant] knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that [defendant] was a newcomer to the law, mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search * * * could be used against him. He persisted in his consent.” United States v. Watson, supra, 423 US at 424-25 (footnote omitted).
Indeed, in this case, defendant volunteered his consent in response to the INS agent’s question whether defendant had drugs or guns, see State v. Kennedy, supra, 290 Or at 504 (“such a volunteering of consent without a prior request from police is a strong indication of voluntariness”), and then affirmed his consent in response to a specific request to search. I conclude that there is evidence to support the trial court’s findings of historical fact and that those findings establish defendant’s consent to the search.
IV. CONCLUSION
In sum, although I agree with the result reached by the court in this case, I do not agree with the court’s method *65of analysis or its reasoning. I reach the same result by employing a substantially different approach.
Van Hoomissen, J., joins in this opinion.See note 17, post.
Some material in the text of this opinion and footnotes 10,13,15, and 17 were added to comment on or respond to the court’s opinion.
8 USC § 1251(a) currently provides in part:
“Any alien* * * shall, upon the order ofthe Attorney General, be deported if the alien is within one or more of the following classes of deportable aliens:
“(2)(B)(i) * * * has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State [or] the United States * * * relating to a controlled substance * * *.”
Defendant also moved to suppress his statements. On appeal, however, defendant did not make separate arguments to challenge the admission of his statements.
Article I, section 9, of the Oregon Constitution is quoted post at 56.
The Fourth Amendment to the Constitution of the United States provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
See also United States Supreme Court cases discussed in State v. Holmes, 311 Or 400, 412-13, 813 P2d 28 (1991); Florida v. Bostick, 501 US_, 111 S Ct 2382, 2389, 115 L Ed 2d 389 (1991) (police officers’ conduct in boarding stopped passenger buses and approaching seated passengers to ask them questions and to request consent to search their luggage does not constitute a Fourth Amendment seizure of the person in every instance, but instead must be evaluated in each case to determine whether, under all the circumstances surrounding the encounter, a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter); United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870, 64 L Ed 2d 497 (1980) (a person is seized under the Fourth Amendment only if, under all of the circumstances, a reasonable person would have believed that he was not free to leave); 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment 587-95, § 6.1(e) (2d ed 1987) (discussing validity of arrest at defendant’s door); Annot., What Constitutes “Seizure” Within Meaning of Federal Constitution’s Fourth Amendment — Supreme Court Cases, 100 L Ed 2d 981 (1990).
The examples of politically accountable lawmakers in State v. Holmes, supra, 311 Or at 404 n 4, list only local and state sources as illustrative of the sources of proper authorization. Where the authorization is from a federal source, however, a different analysis is necessary. See post at 53-57 (discussing Supremacy Clause).
8 USC § 1357(a)(2) authorizes an INS agent to make a warrantless arrest of an alien on probable cause to believe that the alien is in the United States in violation of the immigration laws and “is likely to escape before a warrant can be obtained for his arrest. ’ ’ There was no showing in this case that defendant was likely to escape before a warrant could be obtained, and the INS officer did in fact obtain a warrant. The INS officer cannot create the likelihood of escape by announcing his presence at defendant’s apartment. A warrantless arrest was not justified because the circumstances required by statute for a warrantless arrest were not established.
ORS 133.245 provides authority for federal officers to arrest persons, but “federal officer” is defined in ORS 133.005(2) as “an officer of the United States Customs Service who is authorized under ORS 133.245 to make arrests.”
The court is generous when it asserts that the state argues that the Supremacy Clause, Article VI, paragraph 2, of the Constitution of the United States renders Article I, section 9, inapplicable to defendant’s arrest. The state neither cited nor discussed the Supremacy Clause in its briefs to this court. During oral argument in this court, the state’s lawyer, in response to questions from this court, did, however, briefly refer to the Supremacy Clause. Nevertheless, we must consider the implications of the Supremacy Clause in order to properly analyze the arguments and issues in this case.
See also The Chinese Exclusion Case, 130 US 581, 609, 9 S Ct 623, 32 L Ed 1068 (1889) (same).
“Laws” include not only legislation, but also governmental conduct generally. State v. Davis, 313 Or 246, 253, 834 P2d 1008 (1992).
Although I agree with the court and with this court’s statement in State v. Davis, supra, that state law determines the admissibility of evidence in state courts, I disagree with the court’s claim in this case that the rule affects the analysis of the validity of an arrest in the face of a federal statute authorizing the arrest. Article I, section 9, could state that “evidence obtained pursuant to consent which is obtained after an arrest may not be used in state court if the arrest was based on a federal warrant that would violate Article I, section 9, of the Oregon Constitution but for the supremacy of federal law that affirmatively establishes the validity of the warrant.” *57If that were how state statutes or the state constitution read, it would be true that, notwithstanding the validity of the warrant authorized by federal statute, there would be evidentiary limitations on the admissibility of evidence based on whether the warrant otherwise satisfied Article I, section 9, of the Oregon Constitution. (Oregon statutory law, in fact, does establish limitations on the admissibility of evidence; those limitations on admissibility do not violate the Supremacy Clause even when applied to evidence validly obtained pursuant to federal authority.) Article I, section 9, however, determines the validity of laws (“[n]o law shall * * *”) and warrants (“no warrant shall issue but * * *”) and does not establish an evidentiary standard apart from the validity of laws and warrants. It is true that a law or a warrant that violates Article I, section 9, can ultimately result in a suppression of evidence, but the threshold inquiry is whether a “law’ ’ or a ‘ ‘warrant’ ’ violated Article I, section 9.
Footnote 9 of the court’s opinion, 317 Or at 36, helps demonstrate my point. The court in this case is not finding that an evidentiary rule exists such as I have posited could, but does not, exist. Rather, the court is assuming that the arrest itself was unlawful under Article I, section 9, and that such a holding is valid even where there is a valid federal statute authorizing the arrest. Thus, the court is already creating the conflict that it alludes to in footnote 9.
In INS v. Lopez-Mendoza, 468 US 1032, 104 S Ct 3479, 82 L Ed 2d 778 (1984), a majority of the Supreme Court assumed, but did not expressly address, the question whether the Fourth Amendment applies to illegal aliens in the United States. See United States v. Verdugo-Urquidez, 494 US 259, 265, 110 S Ct 1056, 108 L Ed 2d 222 (1990) (commenting on that assumption); Auchincloss-Lorr, Police Encounters of the Third Kind: The Role of Immigration Law and Policy in PreSeizure Interrogation Strategies, 20 Search and Seizure Law Report 105,106 (1993).
The court avoids addressing the voluntariness of defendant’s consent by stating that the issue was not adequately preserved, 317 Or at 38 n 11.1 disagree, both because the issue was preserved and because the burden of establishing consent is on the state. State v. Paulson, 313 Or 346, 352, 833 P2d 1278 (1992); see note 17, post.
Defendant’s motion to suppress stated:
“Defendant moves the Court for an Order suppressing evidence seized from his residence without a warrant, including guns and statements.
“[Signature of lawyer]
“POINTS AND AUTHORITIES
“US Const., Amends. IV and XTV and the Oregon Const., Art. 1, Sec. 9, prohibit unreasonable searches. Evidence in this case was seized without a search warrant, and the search was prima facie unreasonable; Katz v. US, 389 US 347 (1967) and State v. Miller, 269 Or 328 (1974).
“US Const. Amends V and XIV prohibit coerced self-incrimination, as does Oregon Const. Art. 1, Sec. 12. ORS 136.425 limits use of statements of defendant.
“Statements produced by, and evidence seized as a result of illegal arrest must be suppressed; Wong Sun v. US, 371 US 471 (1963).”
In State v. Miller, 269 Or 328, 334, 524 P2d 1399 (1974), this court stated:
“In considering the sufficiency of the motions to suppress in this case it must be kept in mind that a search and seizure without a warrant is per se unreasonable and that the state has the burden to establish the legality of the search in such a case. * * *
“It follows that a motion to suppress evidence seized during a search without a warrant, supported by an affidavit stating that the search and seizure was made without a warrant, is sufficient to place that burden upon the state.”
If the court is correct that the exploitation and voluntariness prongs of the consent test are independent, separable inquiries, it can only follow that the state’s burden in answering a motion to suppress evidence obtained during a warrantless search is to prove that neither prong invalidates the consent. In this case, defendant did all that was necessary to call the state to its burden at both the trial level (contrary to the *61court’s conclusion, 317 Or at 38 n 11), and the appellate level (as the court agrees, id.). Raising an issue at trial is essential for preserving an issue for appeal where the error is not a plain error apparent on the face of the record; identifying a source for the position is less important, and making a particular argument is less important. State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988).
The Court of Appeals’ opinion is not explicit about what constituted the illegal police conduct, but there is a suggestion about the impropriety of having the Portland police officers accompany the INS agent to defendant’s residence. State v. Rodriguez, 110 Or App 544, 550, 823 P2d 1026 (1992). It is true that “ORS 181.850 forbids local law enforcement personnel from participating in the arrest of a person ‘whose only violation of law is that [he is] residing in the United States in violation of federal immigration laws,’ ” id., but I see no prohibition of local law enforcement personnel from acting pursuant to consent to search when that consent is obtained following a valid arrest by an INS agent. If the arrest had been illegal, that could have a bearing on the validity of the consent, see note 11,post, but that is not this case. As a matter of federal law, the validity of the arrest by the INS agent here is not affected by the agent’s motive in arresting defendant (i.e., whether the INS agent’s motive was to deport defendant or to cooperate with state officers in gathering evidence). In Scott v. United States, 436 US 128, 137-38, 98 S Ct 1717, 56 L Ed 2d 168 (1978), the United States Supreme Court observed that alleged violations of the Fourth Amendment should be analyzed from an objective viewpoint without regard to the subjective intent or motive of the officer involved. Thus, the state of mind of the officer is not relevant. The significant inquiry under federal law is whether, from an objective viewpoint, the officer exceeded the scope of his authority.
The illegality of police conduct before consent may affect the validity of consent, either because it affects the voluntariness of the consent under the totality of the circumstances (e.g., consent pursuant to illegal arrest) or because it is in exploitation of illegal conduct {e.g., consent requested based on knowledge derived from illegal search). See State v. Kennedy, 290 Or 493, 502-03, 624 P2d 99 (1981) (“the burden on the police to show voluntariness when consent occurs after illegal police conduct is greater than when no illegality has occurred”); Florida v. Royer, 460 US 491, 497-508, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (quoted in text, ante at 62); Wong Sun v. United States, 371 US 471, 488, 83 S Ct 407, 9 L Ed 2d 441 (1963); see also 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d) (2d ed 1987) (discussing validity of consent after illegal police action); 68 Am Jur 2d 715, Search and Seizure § 89 (section on consent after illegal arrest).
If the findings that the court assumes, but declines to make, are eliminated from the court’s analysis, the court’s opinion is reduced to a holding that, even assuming prior illegality, the warrantless search was valid because of consent. The court does so by effectively dodging even the issue of consent by addressing only one prong (exploitation of illegality) of the consent issue while conveniently avoiding the voluntariness prong of consent by claiming that it was not adequately argued. But see note 15, ante (defendant’s argument adequate to raise issue and to put state to its burden).
However, the court’s analysis of consent is inadequate in light of its assumption that the arrest violated Article I, section 9, i.e., that the arrest was unlawful, 317 Or at 37. The court’s conclusion that if an arrest does not violate the Fourth Amendment, evidence found in a subsequent search is not subject to suppression under the Fourth Amendment, 317 Or at 44-45, states the obvious — that if there is valid consent to search, evidence obtained pursuant to that consent is not subject to suppression. The court appears to assume, however, that if an arrest does not violate the Fourth Amendment, consent to search will always be valid. This is not true for at least two reasons.
First, some other illegality or coercion negating voluntariness, such as a demand for consent at gunpoint, could take place after an arrest, even if the arrest does not violate the Fourth Amendment. Clearly, a prior valid arrest under the Fourth Amendment does not assure the validity of the consent obtained later at gunpoint. Therefore, notwithstanding an arrest that does not violate the Fourth Amendment, the search and, therefore, the issue of consent must be considered independently under the Fourth Amendment.
Second, in the absence of an applicable federal statute, state law determines whether an arrest is valid as the predicate for determining whether a subsequent *63warrantless search satisfies the Fourth Amendment. See, e.g., Johnson v. United States, 333 US 10, 13-17, 68 S Ct 367, 92 L Ed 436 (1948) (determining validity of search incident to arrest under Fourth Amendment after first determining validity of arrest under state law). If there is a violation of the Fourth Amendment under these circumstances, the exclusionary rule of the Fourth Amendment, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, Mapp v. Ohio, 367 US 643, 655, 81 S Ct 1684, 6 L Ed 2d 1081 (1961), would apply, id. at 657. The holding in California v. Greenwood, 486 US 35, 43, 108 S Ct 1625, 100 L Ed 2d 30 (1988), relied on by the court, 317 Or at 44-45, that state law does not determine what is a reasonable search under the Fourth Amendment, does not affect the rule that determining the validity of arrest as a predicate for determining the validity of a search is a question of state law.
For example, state law could say that a warrantless arrest is never valid under any circumstances. If, after arresting a fleeing felon without a warrant, officers requested consent to search the felon’s house, and the felon agreed to the search only after being told repeatedly that the officers would hold him in custody until he consented, the Fourth Amendment’s limitations on unreasonable searches and seizures are not discarded. Rather, the search would be analyzed as a warrantless search requiring consent; in this example, the consent was clearly obtained in exploitation of the illegal arrest (which was illegal notwithstanding the fact that it did not violate the Fourth Amendment). I believe that under the Fourth Amendment, consent would be invalid in this scenario because of the exploitation of the illegal arrest and the lack of voluntariness, and the evidence would be suppressed.
Likewise, in this case, given the court’s assumption that the arrest was unlawful in that it violated Article I, section 9, of the Oregon Constitution, the court’s Fourth Amendment analysis is not complete unless the court analyzes the validity of the consent under the Fourth Amendment. In the absence of an applicable federal statute, state law determines the validity of the underlying arrest even when the issue is the constitutionality under the Fourth Amendment of a subsequent search.
In this case, when the issue of consent is analyzed under the Fourth Amendment in the wake of the court’s analysis, the quagmire that the court has created but avoided presents itself: How do you analyze the validity of consent (i.e., whether consent was achieved in exploitation of an illegality or was otherwise not voluntary) when the validity of the arrest is a factor to consider, but the arrest was both invalid under state law and valid under federal law (and not only because it does not violate the Fourth Amendment as in the example above, but also because it is expressly authorized by federal statute)? The conflict is clear when the court’s analysis and conclusion of the consent issue under the state constitution may be different than the analysis of the consent issue under the federal constitution in light of Florida v. Royer, supra, 460 US at 507-08 (quoted in text ante at 62; see LaFave, supra, at 192 (“[A]n illegal arrest bears uniquely on the question of voluntariness, for it constitutes a false claim of authority over the person in much the same way that reliance upon an illegal search warrant constitutes a false claim of authority over the premises named in the warrant”).
The court’s attempted solution is to claim that because the “federal” arrest is valid, there is no Fourth Amendment problem, but that is only true in this case because of the federal statute and the Supremacy Clause, which prevents state law from invalidating the arrest; thus, the court’s conclusion can only be justified because of the Supremacy Clause that it insists is inapplicable in order to justify an approach different than the one I have offered. If, in fact, there was an invalid arrest under state law, and if, in analyzing consent in that context, the consent was invalid, the Fourth Amendment would be violated and the exclusionary rule would apply, notwithstanding the fact that the arrest did not violate the Fourth Amendment. The simple truth, however, is that “in [the] absence of an applicable federal statute the *64law of the state where an arrest without warrant takes place determines its validity, ’ ’ United States v. Di Re, 332 US 581, 589, 68 S Ct 222, 92 L Ed 210 (1948). Because of the supremacy of federal law, where there is an applicable federal statute, state law does not determine the validity of an arrest. The court’s analysis to the contrary is wrong.
In contrast, my approach recognizes the supremacy of federal law in determining the validity of the “law,” the “warrant,” and, therefore, the arrest, and recognizes that state law could, but has not, put restrictions on evidence obtained from valid federal arrests. See note 13, ante.