dissenting.
I agree with the majority that the officer unlawfully stopped defendant without reasonable suspicion. The majority goes on, however, to conclude that the evidence obtained by the police during the stop must be suppressed because the police exploited that illegality to obtain the evidence. For the reasons that I will explain, I do not believe that the majority correctly defines or applies the concept of “exploitation.” The majority essentially uses the concept of exploitation as articulated in State v. Stanley, 139 Or App 526, 912 P2d 948 (1996) , rev’d on other grounds 325 Or 239, 935 P2d 1202 (1997) . We stated in Stanley that “exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts them either to *63seek the defendant’s consent or to ask questions leading to consent.” 139 Or App at 535. In my view, the test in Stanley is incomplete and to a certain extent inaccurate as stated. As I will discuss, a close look at our case law demonstrates that the concept of “exploitation” is more complex. To the extent that our discussion in Stanley states otherwise, I would disavow the language in Stanley. After applying what I believe to be the correct test for exploitation, I would remand this case to the trial court so that it may make pertinent factual findings and address the legal question of whether those facts demonstrate that exploitation occurred. Accordingly, I respectfully dissent.
Any meaningful discussion of exploitation under Oregon law must begin with the Supreme Court’s decision in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993). In that case, the Supreme Court addressed the issue of the admissibility of evidence seized during a consent search that followed unlawful police conduct. The court reasoned that a defendant’s rights under Article I, section 9, of the Oregon Constitution, are vindicated through the sanction of suppression. Rodriguez, 317 Or at 33, 39. It concluded that, where evidence is discovered during a consent search that follows unlawful police conduct, suppression is required to vindicate a defendant’s rights under Article I, section 9, in two circumstances: (1) the defendant’s consent is involuntary or (2) the police exploit the unlawful conduct to obtain the defendant’s consent. Rodriguez, 317 Or at 39-40. In distinguishing the issue of voluntariness from exploitation the court explained:
“In some cases, the unlawful conduct may bear on the issue of voluntariness. That is, the unlawful conduct may have some effect on the state of mind of the person giving the consent, affecting whether the consent is a voluntary act of that person’s free will. Where the unlawful conduct bears on the voluntariness of the consent, as in any other case where voluntariness is at issue, the state must prove by a preponderance of the evidence that the consent was voluntary. * * *
“Where, as here, the question of the voluntariness of the consent has not been raised, or where the court has determined that the consent was voluntary, unlawful police conduct occurring before a consent search still may affect the *64admissibility of evidence seized during that search. This is so because that unlawful conduct — either an unreasonable search or an unreasonable seizure — occurring before the consent search was a violation of the defendant’s rights, even if the consent search by itself was not. Put differently: There may be cases in which suppression of evidence obtained during a consent search may be necessary to vindicate a defendant’s rights that were violated by earlier, unlawful police conduct.
“Whether suppression is required in any such case will, however, depend on the nature of the connection between the unlawful police conduct and the evidence sought to be suppressed. As we have noted previously, evidence is subject to suppression in a criminal prosecution if it was ‘obtained in violation of a defendant’s rights under [Article I, section 9].’ State v. Davis[, 313 Or 246, 253, 834 P2d 1008 (1992)] (emphasis supplied). Under that standard, there will have to be, at the very least, a causal connection between the unlawful police conduct and the evidence uncovered during the subsequent consent search. Thus, where the evidence would have been obtained even in the absence of the unlawful police conduct — i.e., where there is no causal connection between the unlawful conduct and the discovery of the evidence — the mere fact that the evidence was obtained after that conduct will not require suppression.[1]
“A causal connection alone, however, still is not sufficient to require suppression. This court has rejected the so-called ‘but for’ test, which would require the suppression of any evidence that would not have been discovered ‘but for’ the unlawful police conduct. State v. Quinn, 290 Or 383, 394-97, 623 P2d 630 (1981);[2] State v. Kennedy, 290 Or 493, *65500-01, 624 P2d 99 (1981). Thus, the fact that, ‘but for’ the unlawful conduct, the police would not have been in a position to (for example) seek a person’s consent does not, in and of itself, render any evidence uncovered during the ensuing consent search inadmissible.
“In what circumstances, then, does unlawful police conduct render evidence obtained in a later consent search *66inadmissible, where the consent to the search is voluntary? We think that evidence obtained during such a search should be suppressed only in those cases where the police have exploited their prior unlawful conduct to obtain that consent. Only where such exploitation occurs can it be said that the evidence discovered subsequently was ‘obtained in violation’ of a defendant’s rights under Article I, section 9.
“Mere physical presence as a result of prior unlawful conduct does not constitute exploitation of that conduct. Exploitation occurs when the police take advantage of the circumstances of their unlawful conduct to obtain the consent to search. State v. Williamson, 307 Or 621, 772 P2d 404 (1989), provides one example of exploitation. There, during the stop of a pick-up at an unlawful roadblock, the police smelled what they believed to be marijuana in the bed of the pick-up. After the defendant had refused to allow a search, the police told the defendant that, unless he consented to a search, they would detain the vehicle until they could obtain a search warrant. The defendant then consented to the search, and the police discovered marijuana. This court held that the marijuana must be suppressed, because the police ‘were trading on evidence that they had only by virtue of the unlawful roadblock.’ 307 Or at 626.” Rodriguez, 317 Or at 38-40 (footnote omitted; some emphasis added; first set of brackets in original).
In other words, while voluntariness concerns whether a defendant’s consent was the product of the defendant’s free will rather than the result of express or implied coercion, exploitation concerns whether the police took advantage of the circumstances of their unlawful conduct to obtain the consent to search.
With regard to the facts in Rodriguez, the court ultimately held that “the police did not exploit any unlawful conduct to obtain [the] defendant’s consent.” 317 Or at 41. The court reasoned that, after the defendant’s purportedly unlawful arrest, the INS agent asked the defendant if he had drugs or guns in his apartment. The court noted that the question was not unlawful because the defendant had been read his Miranda rights, stated that he understood them, and was under no compulsion to answer the question. Id. at 41 n 15. In response, the defendant said, “ ‘No, go ahead and *67look.’ ” Id. at 41. Thereafter, the INS agent confirmed that the defendant was giving his consent. The court concluded:
“Given those facts, it is apparent that the INS agent did not trade on or otherwise take advantage of the arrest to obtain defendant’s consent to the search. Indeed, there is absolutely nothing in the encounter between the agent and defendant that can be construed as exploitation of the purportedly unlawful arrest. The mere fact that, but for the arrest, the agent would not have been standing in the doorway of defendant’s apartment, in a position to ask defendant about drugs and guns, does not render the evidence discovered in the subsequent consent search inadmissible.” Id.
Rodriguez indicates that the suppression of evidence to vindicate a defendant’s rights under Article I, section 9, of the Oregon Constitution, is required where (1) a “but for” causal connection exists between the unlawful conduct and the evidence sought to be suppressed and (2) “the police have exploited their prior unlawful conduct to obtain that consent” or, in other words, take advantage of the circumstances of their unlawful conduct to obtain consent to search.3 Rodriguez, 317 Or at 40. Ultimately, even if a “but for” causal connection exists between the unlawful conduct and the evidence sought to be suppressed, the facts of the case must support a conclusion that the nature of the causal connection is sufficient to require suppression.
As Rodriguez dictates, each of the Supreme Court’s and this court’s decisions concerning whether the police have exploited unlawful conduct in order to obtain a defendant’s consent involves an examination of the nature of the particular causal connection to determine if suppression is required. Each case is highly dependent on its facts. However, three general categories of cases emerge. In the first category of cases, suppression is not required because there is simply no causal connection between the unlawful conduct *68and the evidence that the defendant seeks to suppress. Often a causal connection is lacking because the police requested consent for reasons independent of the unlawful conduct.4 In the second category of cases, the pivotal factor in determining whether the police exploited information obtained only by virtue of their unlawful conduct is whether the defendant’s knowledge that the police have discovered the information is a substantial factor in his or her decision to consent.5 In the *69third category of cases, the existence of an intervening circumstance that separates the unlawful conduct from the evidence sought to be suppressed is an important factor in determining whether the police have exploited that conduct.6
*67“has stated that, ‘unlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search and seizure.’ ” State ex rel Juv. Dept. v. Rogers, 314 Or 114, 119, 836 P2d 127 (1992) (footnote omitted) (quoting State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987)).
*69We and the Supreme Court have also applied exploitation analysis in determining whether a defendant had abandoned his interest in the property that he sought to suppress. That case law concerning abandonment also indicates that the existence of an intervening circumstance is an important factor in determining whether the police have exploited their unlawful conduct. For example, in State v. Knox, 160 Or App 668, 676, 984 P2d 294, rev den 329 Or 527 (1999), the issue was whether the defendant’s relinquishment of a pouch containing cocaine in the back of a police car “was obtained by the exploitation of the illegal search of his vehicle while it was in the grocery store parking lot.” (Emphasis in original.) We reasoned:
“The ‘exploitation’ analysis used in Rodriguez is applicable to the facts in [State v.] Morton], 326 Or 466, 953 P2d 374 (1998),] and to this case. Although the Morton court did not expressly apply an ‘exploitation’ analysis, it is apparent that that is what the court employed. In holding that the container was subject to suppression, the court concluded that the dropping of the container could not be separated from the process of the execution of the arrest based on an invalid warrant. The causal connection between the arrest and the dropping of the container was not interrupted by any intervening events, and the unlawful police conduct *70directly coerced Morton’s actions. To permit the admissibility of the evidence in Morton would be to permit the police to exploit or take advantage of the unlawful arrest.
“Here, in contrast to Morton, the illegal search in the parking lot merely began the chain of events that led to the subsequent discovery of the pouch in the patrol car at the police station. Factually, the seizure of the pouch was separate from any police illegality. As the court noted in Rodriguez, the mere physical presence of the officer at the police parking lot because of the events that began with the search of defendant’s car does not, by itself, constitute an exploitation of the illegal search. The search and the arrest for what was discovered in defendant’s car were complete when defendant was handcuffed and placed in the patrol car. His transportation to the police station during which his alleged deposit occurred was an event that intervened between the illegal search and seizure and the seizure at issue here.” Knox, 160 Or App at 678-79 (emphasis in original; citation omitted).
As we explained in Knox, the Supreme Court applied an exploitation analysis in Morton to determine whether the defendant had abandoned her interest in the container that she sought to suppress. The court noted that the container fell from the defendant’s jacket while she was being placed under arrest. The court concluded that
“defendant dropped the container only after the police had begun the process of taking defendant into custody pursuant to the arrest warrant. Thus, in this instance, the state cannot separate the act of arrest from the dropping of the container; the seizure can be proper only if the arrest itself was authorized by a valid warrant.” Morton, 326 Or at 470 (emphasis added).
The court ultimately concluded that the defendant’s arrest was invalid. In determining whether the police exploited the unlawful arrest, one factor that appeared to be important to the court in Morton was the temporal proximity between the unlawful conduct and the defendant’s relinquishment of the container.
In sum, while the case law does not reflect an exclusive set of factors to be used in determining whether the nature of the causal connection requires suppression, it *71reflects the following factors that inform our analysis: (1) the existence of a “but for” causal connection between the unlawful conduct and the evidence sought to be suppressed; (2) the existence of circumstances indicating that the police obtained information only by virtue of the unlawful conduct and that a defendant’s knowledge that the police have discovered the information is a substantial factor in his or her decision to consent; (3) the existence of an intervening circumstance that separates the unlawful conduct from the evidence sought to be suppressed; and (4) the temporal proximity between the unlawful conduct and a defendant’s consent. If a “but for” connection exists, no other factor is necessarily dispositive as a matter of law and no bright-line rule exists in determining whether suppression is required under Article I, section 9, of the Oregon Constitution, in order to vindicate a defendant’s rights.7 In each case, the trial court must make factual findings concerning the factors that are pertinent to the ultimate legal question of whether exploitation has occurred and then evaluate those facts to determine whether the nature of the causal connection is such that it can be said that the police exploited or traded on their unlawful conduct.
With those principles in mind, I would turn to our decision in Stanley, which articulates the test that the majority appears to apply in reaching its decision. As noted above, in that case, we held that “exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts them either to seek the defendant’s consent or to ask questions leading to consent.” Stanley, 139 Or App at 535. That test is appealing because, at least on the face of it, it is a simple, bright-line test for determining whether the police exploited their unlawful conduct. On closer examination, however, it is not a very meaningful test, and, as discussed above, it does not reflect the more complex analysis that we have actually applied in determining whether exploitation has occurred in a particular case. Under *72the test as.articulated in Stanley, it is difficult to imagine an encounter between a police officer and a defendant that will not yield some information to the officer’s trained eye. As a consequence, exploitation will occur whenever, because of an unlawful restraint, an officer observes something incriminating or nonincriminating and consent is requested thereafter. In other words, if consent follows unlawful activity, suppression will be necessary. That is “but for” causation, which the Supreme Court rejected in Rodriguez. The broad holding in Stanley eliminates consideration of the various factors reflected in the case law, which have played an important role in our analysis.
Moreover, Stanley focuses the analysis on the wrong person. The proper focus under an exploitation analysis is not on why the officer acted but why the defendant consented.8 If the illegally obtained information was a substantial factor in the defendant’s otherwise voluntary consent, exploitation will occur. For those reasons, I would disavow the language in Stanley, and, to the extent that the majority’s reasoning depends on Stanley, I believe it is incorrect.9
*73The majority also states:
“Here, Deese’s testimony establishes that he took advantage of his unlawful stop of defendant to obtain defendant’s consent to search. He had no reason for stopping defendant other than to conduct a criminal investigation. His detention of defendant was unsupported by a reasonable suspicion that defendant had committed any criminal offense. Although Deese’s initial gesture could, under different circumstances, have constituted a mere request for a police-citizen encounter, the conduct that followed demonstrates that each successive action took advantage of the preceding circumstances to obtain defendant’s consent to search. Deese stopped defendant to ask for identification without reasonable suspicion that he had committed a crime. After procuring defendant’s identification and while waiting for the record check to be completed, he continued his criminal investigation by asking questions about weapons. During that time, he observed the bulges in defendant’s jacket, and he expressly testified that his observation led him to request consent to search. Thus, Deese took advantage of the circumstances of his unlawful conduct to obtain defendant’s consent, and it is that exploitation of the circumstances that distinguishes this case from the facts in [State v.] Peppard[, 172 Or App 311, 18 P3d 488, vacated and remanded 332 Or 630, 34 P3d 168 (2001), on remand 179 Or App 478, 40 P3d 563 (2002),] and [State v.] Arabzadeh[, 162 Or App 423, 986 P2d 736 (1999)] ,”10 183 Or App at 59 (emphasis added).
Based on that passage, the majority appears to reason that, after the unlawful stop, Deese took advantage o/the stop by asking for identification, he took advantage o/the request for identification by asking about weapons, he took advantage of *74the questions about weapons by observing the bulges in defendant’s jacket, and he took advantage of the observation by asking for consent to search. That reasoning demonstrates nothing more than a “but for” chain of causation between the unlawful stop and the request for consent. Moreover, other than identifying the links in the causal chain, the majority does not examine the nature of the causal connection in light of the factors identified above. Consequently, I believe that the majority does not correctly apply the concept of exploitation as it has been articulated in our case law..
In my view, in determining whether exploitation has occurred, rather than applying the limited and more general test articulated in Stanley, a court should consider all of the pertinent factors previously identified. In this case, there is a “but for” connection between the unlawful detention and the evidence that defendant seeks to suppress. Further, the unlawful detention and the request for the consent are close in time, and there is no intervening circumstance to separate the unlawful conduct from the evidence sought to be suppressed. Thus, the critical factor in this case is the existence of circumstances indicating that Deese obtained information only by virtue of the unlawful detention and that, if defendant had knowledge that Deese had discovered the information, that knowledge was a substantial factor in his decision to consent. In other words, we must determine whether the facts in this case demonstrate that a substantial factor in defendant’s decision to consent was his knowledge that Deese had discovered information during the unlawful stop. On that point, the evidence is conflicting. Deese testified, in part, that
“I just ran a routine check which I do quite frequently to see if he had any wants or warrants and then I, after calling dispatch I handed him back his I.D. and I asked him, at that time I noticed he was wearing a jacket, I’m not sure if it’s the one he has on now, but I noticed it looked like it had items inside of it. I asked him if he had any weapons or knives or any illegal drugs on him. He said, ‘no.’ And I said, “Would you mind if I checked?’ And he said, ‘no go ahead.’ So in checking him, I found no illegal weapons; however, in his right or left-front pocket I found, I felt an object and I retrieved the same and saw that it was a glass v[ial] commonly used to hold controlled substances.”
*75Defendant testified, in part:
“He says, ‘Why are you looking so nervous?’ I says, ‘I’m not nervous.’ He says, I had my coat, it was a different coat, I had my coat zipped shut and I had my gloves on and they were slightly hanging out. He says, ‘That bul[ge] in your coat is making me a little nervous. What * * * do you got any guns or drugs in there?’ I said, ‘No they’re my gloves.’ ”
On cross-examination, Deese also testified as follows:
“Q Did [defendant] show you those gloves or did you remove the gloves?
“A I don’t really recall if he showed them to me or if I felt them and asked what they were.”
Because the trial court apparently determined that defendant was not stopped, it had no reason to consider whether Deese exploited the unlawful detention to obtain defendant’s consent. The trial court did not make a factual finding concerning the reason that Deese requested defendant’s consent to search and made no pertinent factual findings concerning exploitation. There is conflicting evidence concerning what occurred after the unlawful stop and its effect, if any, on defendant’s decision to consent. As we indicated in State v. Rocha-Ramos, 161 Or App 306, 313, 985 P2d 217 (1999),
“[t]he trial court did not consider the issue of whether the officers’ observations constituted an exploitation of their illegal stop. On remand, the trial court must decide that issue and make the appropriate rulings that follow as a legal consequence.”
This case should be remanded to the trial court so that it can determine in the first instance whether Deese exploited the unlawful detention.
For all of the above reasons, I respectfully dissent.
Landau, Linder, and Kistler, JJ., join in this dissent.The majority states that the court in Rodriguez “observed that, where the evidence would have been seized in the absence of unlawful conduct and the discovery of the evidence was inevitable, ‘the mere fact that the evidence was obtained after that conduct will not require suppression.’ ” 183 Or App at 58 (quoting Rodriguez, 317 Or at 39) (emphasis in Rodriguez). However, the statement from Rodriguez appears to reflect an independent source theory as opposed to an inevitable discovery theory. The inevitable discovery theory
“in a sense, is a variation upon the ‘independent source’ theory, but it differs in that the question is not whether the police did in fact acquire certain evidence by reliance upon an untainted source but instead whether evidence found because of a [constitutional] violation would inevitably have been discovered lawfully.” Wayne R. LaFave, 5 Search and Seizure § 11.4(a), 241 (3d ed 1996).
In Quinn, the defendant had been arrested and jailed for burglary, and his car had been impounded. Twenty-two hours later, the police unlawfully searched *65the defendant’s car without a warrant. Women’s undergarments were found during the search. The next day, homicide detectives in another county were told of the discovery of the undergarments. The detectives considered the defendant to be a suspect in the murder of an elderly woman. The following day, the arresting officer and another officer interviewed the defendant about several other thefts. The officers asked the defendant for consent to search his car. After advising the defendant that he need not consent and that any evidence that was discovered could be used against him, the defendant consented. The officers never mentioned the undergarments or the murder. Later that afternoon, the homicide detectives searched the car and seized the undergarments and interviewed the defendant. During that interview, the defendant confessed to the murder. The court concluded that “[t]his case, however, involves independent causation rather than attenuation of the original causation because this defendant’s decision to consent was not the product of unlawful police conduct, whether direct or remote.” Quinn, 290 Or at 396 n 3. In sum, the court stated that
“the women’s underwear might not have come to light had the officer not reached under the car seat, but when the police sought defendant’s consent to search, they did not do so by exploitation of that illegal discovery. Rather, the consent was sought and given by defendant for reasons entirely distinct from that primary illegality.” Id. at 396.
The continued viability of Quinn was raised in State v. Weaver, 319 Or 212, 874 P2d 1322 (1994). The issue in Weaver was “whether defendant’s written consent to search validated any search or seizure that occurred before defendant gave his consent.” 319 Or at 214. The majority distinguished Quinn by reasoning that case law concerning the issue of whether evidence obtained during a consent search that followed unlawful conduct must be suppressed does not inform the issue of whether consent that follows an unlawful course of police conduct may retroactively validate that prior unlawful conduct. According to the majority, it did not determine whether Quinn remained a valid statement of the law that could be relied on in the future. Weaver, 319 Or at 221 n 9.
Justice Gillette concurred, reasoning that the majority had left the false impression that Quinn remained an accurate statement of the law. According to the concurrence, the officers in Quinn
“would never have asked the defendant for permission to search the car, had it not been that their attention was directed to him and the car by the result of the earlier, illegal search. A more direct exploitation of illegal government activity would be difficult to posit.
“Because its analysis of the search and seizure issue is so suspect, it probably would be unwise for a party in the future to place much reliance on that portion of Quinn. Today’s decision, although it distinguishes the case, does nothing to imply that, were the court required to address the issue, we would adhere to the Quinn search and seizure analysis.” Weaver, 319 Or at 224 (Gillette, J., concurring).
I note that the Oregon Supreme Court
See State v. Dinsmore, 182 Or App 505, 516-19, 49 P3d 830 (2002) (rejecting the defendant’s argument that the police exploited an unlawful interview with her by asking her to perform field sobriety and breath tests, because the officer’s requests were based on information that he had independent of the unlawful interview); State v. Lee, 174 Or App 119, 124, 23 P3d 999, rev den 332 Or 559 (2001) (“When [the officer] asked for consent, there were no threats or promises made or offered. There is no evidence of the officers trading on their alleged unlawful conduct. There is no evidence that they took advantage of the situation in any way. Defendant’s response to the officers’ request to come outside the apartment certainly provided the opportunity for the officers to ask for his consent to search the apartment. But there is no evidence that it was the reason for seeking the consent. Instead, the record shows that the reason for asking for consent to search the apartment was the victim’s report that defendant had participated in a robbery.”); State v. Schwartz, 173 Or App 301, 307-08, 21 P3d 1128, rev den 333 Or 162 (2001) (“Even before the warrant was obtained, the police were interested in investigating and talking to defendant. * * * In this case, there is no causal connection, ‘but for’ or otherwise, between the allegedly unlawful police conduct and the obtaining of the evidence that defendant sought to have suppressed.”) (emphasis in original); State v. Herrera-Sorrosa, 154 Or App 28, 959 P2d 619, adhered to in part on recons 155 Or App 227, 963 P2d 728 (1998) (assuming that the defendant was detained unlawfully, the stop did not reveal information so as to cause the officer to request consent); State v. Wenger, 143 Or App 90, 98-99, 922 P2d 1248 (1996) (“It is true that [the arresting officers] were able to arrest defendant immediately, because he was unlawfully stopped at the time. However, the unlawful stop, itself, did not reveal to the officers the information that defendant had just completed a drug transaction. That information was gained independently by [another officer], and could therefore provide untainted probable cause for defendant’s arrest. * * * [Defendant’s consent to the search of his vehicle was not the result of exploitation of the unlawful stop. The officers were not prompted to seek his consent to the search by any information gained from defendant during the unlawful stop. Instead, they were prompted to seek his consent to a search of the van by the evidence of the marijuana and cash that they discovered during the lawful search of his person incident to his arrest.”).
See Williamson, 307 Or 621 (apparently reasoning that exploitation occurred under the following circumstances: after an unlawful detention, the officer smelled marijuana, told the defendant that he smelled the marijuana, gave the defendant Miranda warnings, advised him of his right to refuse consent, and told the defendant that, unless he consented, the officer would detain the vehicle to seek a search warrant); Quinn, 290 Or at 396 n 3 (reasoning that, where the defendant was unaware that the police had discovered the undergarments, the “defendant’s decision to consent was not the product of unlawful police conduct, whether direct or remote”); State v. Martin, 124 Or App 459, 863 P2d 1276 (1993) (reasoning that exploitation occurred under the following circumstances: the officer handcuffed the *69defendant, discovered methamphetamine during an illegal search incident to arrest, placed the defendant in the patrol car, asked the defendant several questions about the contents of the Dristan tin (which contained the methamphetamine) and confronted the defendant with a paper bag and asked if it contained more drugs); cf. State v. Somfleth, 168 Or App 414, 8 P3d 221 (2000) (reasoning that exploitation occurred under the following circumstances: from an unlawful vantage point, the officer observed what he believed was a methamphetamine laboratory and told the defendant’s wife that he believed there was a laboratory in the garage, that such a laboratory was highly dangerous and that, if she refused to consent to a search of the garage, he could obtain a warrant).
See Rodriguez, 317 Or at 41 & 41 n 5 (where, after the purportedly unlawful arrest, the INS agent asked the defendant if he had drugs or guns in his apartment and the defendant responded by consenting to the search, the court reasoned that the officer’s question was not unlawful because the defendant had been read his Miranda rights, stated that he understood them, and was under no compulsion to answer the question).
The concurrence incorrectly characterizes my position when it states that I “appear! ] to believe that exploitation can occur oníy if the facts ‘demonstrate that a substantial factor in defendant’s decision to consent was his knowledge that Deese had discovered information during the unlawful stop.’ ” 183 Or App at 62 (Brewer, J., concurring). While that is one factor to consider and is the pivotal factor in this case, the circumstances of a particular case may demonstrate that exploitation has occurred even if that factor is not present.
The majority takes us to task because of our statement that the proper focus in an exploitation analysis is on why defendant consented. The majority asserts that we must focus only on whether the police took advantage of the circumstances. However, whether the police took advantage of the circumstances in a particular case necessarily includes consideration of all of the factors we have discussed. It would simply make no sense to consider the activities of the police following their unlawful conduct in a vacuum without any consideration of their effect on the defendant. Neither Rodriguez nor the majority in Weaver requires the officer’s state of mind to be the focus of the exploitation analysis. Moreover, it does not follow as a matter of logic that, because voluntariness concerns the defendant’s state of mind, exploitation must concern the officer’s state of mind. The concurrence agrees:
“[A] defendant’s reasons for giving consent to a search may be relevant to an exploitation analysis. It is not uncommon for a defendant’s knowledge that the police had obtained information to affect the decision to give consent. The existence of such knowledge logically can contribute to a determination that the police took advantage of unlawful conduct.” 183 Or App at 62 (Brewer, J., concurring).
The majority states that I “appear! ] to reason that all that could exist here, under the trial court’s findings, is mere causation between the illegal stop and Deese’s observation of the bulge in defendant’s pocket as, in its view, also occurred in Stanley.” 183 Or App at 60.1 note that, although I would disavow the particular language explaining the exploitation analysis in Stanley, I have not analyzed the circumstances of that case, which are different from the circumstances of this case, in light of the factors that I have identified, and I have not determined whether the outcome in Stanley is correct.
This paragraph raises two concerns. First, I do not understand that Deese expressly testified that he requested consent because of the observation. The trial court did not make a finding about the reason that Deese requested consent to search. I do acknowledge, however, that, based on the testimony, one reasonable inference is that Deese requested consent because of his observation. Second, as support for its conclusion that exploitation occurred in this case, the majority states that the circumstances here are different from those in Peppard and Arabzadeh. I note, however, that the Supreme Court vacated our decision in Peppard, and, on remand, we did not reaffirm our reasoning concerning exploitation. Additionally, Arabzadeh was a case in which no causal connection existed. While Arabzadeh would assist the majority in demonstrating that a causal connection exists in this case, it does not assist the majority in explaining why the nature of the causal connection demonstrates that exploitation has occurred.