No. 1                      January 10, 2013                              129

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                    STATE OF OREGON,
                    Respondent on Review,
                               v.
                LELAND JAY HEMENWAY,
                     Petitioner on Review.
         (CC 071107; CA A136981; SC S059085 (Control))
                     STATE OF OREGON,
                      Petitioner on Review,
                                v.
                   LELAND JAY HEMENWAY,
                     Respondent on Review.
                            (S059392)
                         (Consolidated)
   On review from the Court of Appeals.*
  Argued and submitted November 14, 2011, at Reynolds
High School, Troutdale, Oregon.
   Rolf Moan, Assistant Attorney General, Salem, argued
the cause and ﬁled the brief for State of Oregon, respondent
on review/petitioner on review. With him on the brief were
John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.
   Peter Gartlan, Chief Defender, Ofﬁce of Public Defense
Services, Salem, argued the cause and ﬁled the brief for
Leland Jay Hemenway, petitioner on review/respondent on
review.
  Before Balmer, Chief Justice, Kistler, Walters, Linder,
and Landau, Justices, and Durham and De Muniz, Senior
Judges, Justices pro tempore.**
_______________
    ** Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 232 Or
App 407, 222 P3d 1103 (2009).
    ** Brewer and Baldwin, JJ., did not participate in the consideration or
decision of this case.
130                                                      State v. Hemenway

    BALMER, C. J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is afﬁrmed.
    Landau, J., concurred and ﬁled an opinion.
  Walters, J., dissented and ﬁled an opinion, in which
De Muniz, Senior Judge, Justice pro tempore, joined.
     Defendant moved to suppress evidence obtained by the police after defendant
voluntarily consented to a search, arguing that his consent to search was the prod-
uct of an illegal seizure and, therefore, that the evidence was inadmissible under
Article I, section 9, of the Oregon Constitution. The trial court denied defendant’s
motion, and defendant entered a conditional guilty plea, reserving his right to
appeal the denial of his motion to suppress. The Court of Appeals reversed. Held:
(1) The Court disavowed the “minimal factual nexus” part of the two-part test
announced in State v. Hall, 339 Or 7, 115 P3d 908 (2005), for determining whether
evidence acquired from a voluntary consent search must be suppressed because
the consent was derived from an illegal seizure; (2) when a defendant has estab-
lished that an illegal stop occurred and challenges the validity of his subsequent
consent to a search, the state bears the burden of demonstrating that the consent
was voluntary, and that the consent, even if voluntary, was not the product of po-
lice exploitation of the illegal stop; (3) the purpose and egregiousness of the illegal
police conduct are factors in the totality of the circumstances that are relevant
to whether the police exploited that conduct to obtain the defendant’s consent to
search; and (4) in this case, defendant’s consent to three different searches was not
a product of or tainted by the illegal stop, so defendant’s Article I, section 9, right
to be free from unreasonable seizure would not be vindicated by suppressing the
evidence the police obtained.
    The decision of the Court of Appeals is reversed. The judgment of the circuit
court is afﬁrmed.
Cite as 353 Or 129 (2013)	131

	             BALMER, C. J.
	        This case requires us to consider once again the
circumstances in which a person’s voluntary consent to a
search is the result of exploitation of prior illegal police con-
duct—leading to the exclusion of the evidence obtained—
and when it is not. The state charged defendant with pos-
session of methamphetamine. Before trial, defendant filed
a motion to suppress evidence seized by the police, argu-
ing that his consent to search was the product of an illegal
seizure and, therefore, that the evidence was inadmissible
under Article I, section 9, of the Oregon Constitution.1 The
trial court denied the motion. Defendant entered a condi-
tional guilty plea, reserving his right to appeal the denial
of his motion to suppress. The Court of Appeals reversed,
relying in part on our decision in State v. Hall, 339 Or 7, 115
P3d 908 (2005), and holding that, if the stop was unlawful,
the evidence from the search was presumptively obtained
through exploitation of the earlier unlawful conduct. State
v. Hemenway, 232 Or App 407, 222 P3d 1103 (2009). For the
reasons that follow, we reverse the decision of the Court of
Appeals. In doing so, we modify the exploitation analysis
announced in Hall.
                                  BACKGROUND
	             We take the facts from the Court of Appeals opinion.
    “In April 2007, deputies Orella and Russell responded to
    a call from Taylor, defendant’s girlfriend, regarding the
    Taylor residence’s electric power and the whereabouts
    of Taylor’s son. The deputies, in separate cars, arrived at
    Taylor’s residence just before midnight. Both deputies
    parked in the driveway behind defendant’s truck, blocking
    the truck’s exit route. The deputies were in uniform, carry-
    ing guns, and driving marked sheriff’s vehicles. Defendant
    and Taylor were both outside the house when the deputies
    arrived. Deputy Orella approached Taylor and instructed


	   1
          Article I, section 9, of the Oregon Constitution provides:
    	   “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.”
132	                                         State v. Hemenway

   defendant to go talk to Deputy Russell. Orella then informed
   Russell that he had observed a rifle in defendant’s truck.
   	 “Defendant met Russell near the back of the truck and
   voluntarily explained that he was in the process of mov-
   ing out of the house and many of his belongings were in
   the truck, including the rifle and a handgun. Russell asked
   defendant if he was a felon; defendant responded that he
   was not. In order to verify defendant’s assertion that he was
   not a felon, Russell asked for defendant’s name and date
   of birth. Defendant provided the information to Russell.
   Defendant asked Russell’s permission to have a cigarette.
   Russell said that he could, but that he wanted to search
   defendant to ‘ease his mind.’ Defendant agreed to that
   search. Russell found a breath mint tin in one of defen-
   dant’s pockets. The trial court found that Russell first
   asked if he could open the tin, and, after defendant agreed,
   Russell discovered a methamphetamine pipe and a baggie
   that Russell suspected contained methamphetamine res-
   idue. Russell placed defendant under arrest and advised
   him of his Miranda rights.
   	 “Russell then asked defendant if he had more drugs in
   the house. Defendant admitted that there might be and
   consented to Russell retrieving the drug-related items from
   the house. Defendant accompanied Russell into the house
   and pointed out where the methamphetamine parapherna-
   lia was, which Russell then located and seized.
   	 “Before trial, defendant moved to suppress all evidence
   obtained from the warrantless search of his person and
   residence and his inculpatory statements made to the dep-
   uties. Defendant argued that the deputies’ conduct before
   his grants of consent and statements constituted an unlaw-
   ful stop under Article I, section 9, of the Oregon Constitu-
   tion and that Russell exploited the unlawful stop when he
   obtained defendant’s consents and statements. The trial
   court determined that defendant was not ‘seized’ by Russell
   and that defendant’s consents were voluntary. Defendant
   entered a conditional plea of guilty, reserving the right to
   appeal the trial court’s denial of his motion to suppress.”
Id. at 409-10.
	      On appeal, defendant argued that the trial court
erred by holding that defendant had not been seized;
defendant did not challenge the trial court’s finding that
Cite as 353 Or 129 (2013)	133

he voluntarily had consented to the searches. The Court
of Appeals determined that (1) the officers did not have
reasonable suspicion that defendant had engaged in crim-
inal activity; and (2) a reasonable person in defendant’s
position would have believed that he had been stopped,
“[g]iven that defendant was physically blocked from exiting
in his truck by the deputies’ cars, that he was told to speak
to Russell and had to alter his course to do so, and that
Russell asked if defendant was a felon and subsequently
asked for his verifying information.” Id. at 415. The court
nevertheless remanded defendant’s case for the trial court
to determine whether defendant subjectively had believed
that he had been stopped. Id. Under this court’s case law at
the time of the Court of Appeals decision, a seizure for pur-
poses of Article I, section 9, occurred whenever an individ-
ual subjectively “believe[d]” that a law enforcement officer
had restrained that individual’s liberty or freedom of move-
ment and such belief was objectively reasonable. See State
v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), overruled
in part by State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360
(2010).
	         Turning to the question whether, if defendant had
been unlawfully stopped, the evidence from the consent
searches should have been suppressed, the Court of Appeals
held that it should. Hemenway, 232 Or at 416-18. Apply-
ing Hall, the court held that the state had failed to show
that defendant’s voluntary consents were attenuated from
the potentially illegal stop. For that reason, if the stop was
unlawful, the evidence was obtained through exploitation
and should have been suppressed.
	         Defendant and the state each requested an exten-
sion of time to file their respective petitions for review pend-
ing this court’s decision in Ashbaugh. In that case, we mod-
ified the test for whether the police have seized a person
for purposes of Article I, section 9, eliminating the subjec-
tive component of the test. Ashbaugh, 349 Or at 316. After
the opinion in Ashbaugh issued, defendant and the state
both petitioned for review in these cases. Defendant argued
that, under Ashbaugh, this court should reverse the part
of the Court of Appeals opinion that remanded his case to
the trial court for an investigation into his subjective belief
134	                                      State v. Hemenway

regarding whether he had been stopped and should order
the suppression of the drug evidence under Hall. The state
conceded that defendant had been stopped under Article I,
section 9, as explained in Ashbaugh, but asserted that Hall
was incorrectly decided and should be overruled. We consol-
idated the petitions and allowed review.
	        On review, the state argues that Hall—discussed
further below—was incorrectly decided because a volun-
tary consent search is necessarily “reasonable” under Arti-
cle I, section 9, of the Oregon Constitution and, thus, any
evidence seized pursuant to a voluntary consent search is
admissible regardless of any prior illegal conduct by law
enforcement. Defendant responds that Hall was correctly
decided and that, under Hall, the evidence seized pursuant
to defendant’s consent must be suppressed because the evi-
dence was derived from the illegal stop.
	        We begin with a summary of the relevant parts
of Hall. In that case, as here, the defendant consented to
a search voluntarily after being stopped by police, and the
police discovered drugs. The defendant moved to suppress,
arguing that the stop had been illegal and that that ille-
gality required suppression of the evidence despite his vol-
untary consent to the search. The trial court denied the
motion, but the Court of Appeals reversed and ordered the
evidence suppressed. 339 Or at 10-12. The state petitioned
for review, arguing, among other things, that the defendant’s
voluntary consent had severed the causal link between the
illegal police conduct and the evidence. Thus, in the state’s
view, the exclusionary rule did not bar the evidence, because
the illegal conduct did not bring the evidence to light. Id. at
14. On review, the majority of this court first determined
that the stop was illegal under Article I, section 9. Id. at 19.
As discussed below, the majority then addressed the proper
framework for determining whether the evidence gleaned
from the consent search nevertheless must be suppressed
because of the illegal stop.
	        The majority in Hall began by outlining the his-
tory of the exclusionary rule in Oregon and analyzing this
court’s past treatment of consent searches. The exclusionary
rule is constitutionally mandated and serves to vindicate
Cite as 353 Or 129 (2013)	135

a defendant’s personal right to be free from unreasonable
searches and seizures. Id. at 24. The federal exclusionary
rule, by contrast, is premised on deterring police miscon-
duct. Id. at 23. The goal of the exclusionary rule in Oregon is
to “restore a defendant to the same position as if ‘the govern-
ment’s officers had stayed within the law’  by suppressing
                                              ”
evidence obtained in violation of the defendant’s rights. Id.
at 24 (quoting State v. Davis, 295 Or 227, 234, 666 P2d 802
(1983)).
	        The majority noted that illegal police conduct may
negate a defendant’s consent to search and require suppres-
sion of evidence in two ways. First, the consent itself may
be “involuntary” if the illegal police conduct overcame the
defendant’s free will, and the consent instead resulted from
“police coercion.” Id. at 20. Second, evidence gained through
a voluntary consent search still may require suppression if
the defendant’s consent to search “derived from” the prior
illegal police conduct. Id. at 21. The majority rejected the
state’s argument that only the voluntariness inquiry was
necessary, stating that, even when a defendant voluntarily
consents,
    “this court’s case law * * * makes clear that Article I, section
    9, also requires the consideration of the effect of the unlaw-
    ful police conduct upon the defendant’s decision to consent,
    even if that conduct did not rise to the level of overcoming
    the defendant’s free will.”
Id. at 32. In particular, the majority relied on State v. Kennedy,
290 Or 493, 624 P2d 99 (1981), and State v. Rodriguez, 317
Or 27, 854 P2d 399 (1993), noting that those cases bor-
rowed from the exploitation analysis that the United States
Supreme Court announced in Wong Sun v. United States,
371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963), to analyze
whether Article I, section 9, required suppression of evidence
obtained through valid consent searches.2 Although neither
Kennedy nor Rodriguez required suppression on the facts
of those cases, the majority in Hall noted that both cases
	   2
        The majority also discussed and disavowed parts of State v. Quinn, 290 Or
383, 623 P2d 630 (1981), which had relied extensively on Wong Sun. The Hall
court’s rejection of the result in Quinn was based on the difference between the
state and federal exclusionary rules and Quinn’s questionable application of Wong
Sun, but Hall did not reject Quinn’s use of the Wong Sun exploitation analysis.
Hall, 339 Or at 26-30.
136	                                         State v. Hemenway

analyzed the issue as whether the defendant’s voluntary
consent “derived from” the prior illegal seizures. 339 Or at
30-32. The majority determined that “consent is insufficient
to establish the admissibility of evidence from a warrant-
less search if the state cannot prove that the consent was
independent of, or only tenuously related to, any preceding
violation of the defendant’s rights under Article I, section 9.”
Id. at 27 (citing Rodriguez, 317 Or at 41-42).
	        The majority in Hall summarized its conclusions as
follows:
   “After a defendant shows a minimal factual nexus between
   unlawful police conduct and the defendant’s consent, then
   the state has the burden to prove that the defendant’s con-
   sent was independent of, or only tenuously related to, the
   unlawful police conduct. Deciding whether the state has
   satisfied that burden requires a fact-specific inquiry into
   the totality of the circumstances to determine the nature
   of the causal connection between the unlawful police con-
   duct and the defendant’s consent. A causal connection
   requiring suppression may exist because the police sought
   the defendant’s consent solely as the result of knowledge
   of inculpatory evidence obtained from unlawful police con-
   duct. A causal connection requiring suppression also may
   exist because the unlawful police conduct, even if not over-
   coming the defendant’s free will, significantly affected the
   defendant’s decision to consent. Although determining the
   existence of such a causal connection requires examination
   of the specific facts at issue in a particular case, we view
   several considerations to be relevant to that determination,
   including (1) the temporal proximity between the unlawful
   police conduct and the defendant’s consent, (2) the existence
   of any intervening circumstances, and (3) the presence of
   any circumstances—such as, for example, a police officer
   informing the defendant of the right to refuse consent—
   that mitigated the effect of the unlawful police conduct.”

Id. at 34-35.
	        Justice Durham filed a separate opinion, joined by
Justice Gillette, concurring in part and dissenting in part.
The dissent agreed that the defendant had been illegally
stopped, but disagreed that that prior illegality should
result in the suppression of the evidence gained through the
Cite as 353 Or 129 (2013)	137

consent search. The dissent asserted that the defendant’s
“voluntary consent to the search demonstrates that the dis-
puted evidence came to light as the result of a reasonable,
not unreasonable, search.” Id. at 39 (Durham, J., concurring
in part and dissenting in part). The dissent took issue with
the majority’s reliance on Rodriguez, 317 Or 27, which the
dissent characterized as incorrectly focusing on the police
decision to seek consent, “rather than the voluntariness of
the defendant’s consent.” Id. at 50. In the dissent’s view,
the inquiry into the voluntariness of a defendant’s consent
takes into account any prior illegal conduct by the police. Id.
at 46. And, a voluntary consent to search fully vindicates
the defendant’s rights under Article I, section 9, because the
evidence was gained as a result of that consent and not by
way of the prior illegality. Id. at 51.
                CLARIFICATION OF HALL
	        The state argues that we should overrule our 2005
decision in Hall, 339 Or 7. “[T]he principle of stare decisis
means that the party seeking to change a precedent must
assume responsibility for affirmatively persuading us that
we should abandon that precedent.” State v. Ciancanelli,
339 Or 282, 290, 121 P3d 613 (2005). The state thus has
the burden of demonstrating that we should reconsider
and reject the rule announced in Hall. The state argues,
among other things, that Hall failed to apply this court’s
“usual paradigm” for analyzing constitution provisions; that
the decision erroneously construed the text of Article I, sec-
tion 9; and that it departed from earlier case law. We have
considered—and we reject—the state’s argument that Hall
suffers from all of the deficiencies that the state asserts. We
also note that, in seeking to overrule Hall, the state relies
in substantial part on arguments that were, in fact, raised
by the Hall dissent and considered and rejected by the
majority.
	        Although we reject the state’s assertion that Hall
articulated an impermissible construction of Article I, sec-
tion 9, we agree that Hall’s test for exploitation is flawed in
some respects and bears refinement. The state argues that
internal contradictions mar both steps of Hall’s exploitation
test and make the test difficult in application and uncertain
138	                                       State v. Hemenway

in result. The state is correct that, in practice, the Hall test
has caused some confusion. Parties and the courts have
struggled to determine when a defendant has met his or
her burden of establishing a “minimal factual nexus” and
whether the police exploited their illegal conduct to obtain a
defendant’s consent to search. We turn to those issues.
	         We begin with a review of the relevant legal princi-
ples. In the context of Hall and in this case, the inquiry into
whether evidence obtained pursuant to a consent search
must be suppressed involves three overlapping issues:
(1) whether the initial stop was lawful; (2) whether the defen-
dant’s consent to the search was voluntary; and (3) assum-
ing that the stop was unlawful and the consent voluntary,
whether the police exploited the illegal stop to obtain the
disputed evidence.
	        The first issue is the lawfulness of the police-citizen
encounter. There is nothing constitutionally suspect under
Article I, section 9, about police engaging a citizen in conver-
sation and then requesting that citizen’s consent to search.
Ashbaugh, 349 Or at 308-09. In contrast to “mere conversa-
tion,” which does not implicate Article I, section 9, an offi-
cer “stops” an individual—raising potential constitutional
issues—when the officer “intentionally and significantly
restricts, interferes with, or otherwise deprives an individ-
ual of that individual’s liberty or freedom of movement.”
Id. at 308-09, 316. Before stopping an individual, Article I,
section 9, requires the police to have reasonable suspicion
that the individual is involved in criminal activity. In the
absence of reasonable suspicion (or some other permissible
concern, such as officer safety), the individual has the right
to be free from police interference and may terminate an
encounter with police at will. See id. at 308-09.
	        The second issue is whether the consent to search
was voluntary. The proper test for voluntariness of consent
“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.” Kennedy,
290 Or at 502 (citing Schneckloth v. Bustamonte, 412 US
218, 226-27, 93 S Ct 2041, 36 L Ed 2d 854 (1973)). To prove
the voluntariness of a consent to search in the context of
Cite as 353 Or 129 (2013)	139

an illegal stop, the state must prove that the defendant’s
consent was the product of his own free will, rather than
the result of coercion. State v. Wolfe, 295 Or 567, 572, 669
P2d 320 (1983); see also State v. Stevens, 311 Or 119, 136,
806 P2d 92 (1991) (consent to search voluntary when no evi-
dence that “the police intimidated or coerced defendant in
any way”); Kennedy, 290 Or at 504, 506 (consent to search
voluntary in light of “an almost total absence of coercive
factors”).
	        The specific focus of Hall and of this case is the
third part of the inquiry: If the police-citizen encounter was
unlawful, but the consent to search was voluntary, the issue
becomes whether the police exploited their illegal conduct
to obtain the consent to search and, by that means, the evi-
dence in question. In Wong Sun, the United States Supreme
Court described exploitation as “whether, granting estab-
lishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of
that illegality or instead by means sufficiently distinguish-
able to be purged of the primary taint.” 371 US at 488 (inter-
nal quotation marks and citation omitted). Since at least
Kennedy, this court has referred to and used the exploitation
analysis announced in Wong Sun in the context of determin-
ing whether evidence obtained through voluntary consent
searches should be suppressed. See Kennedy, 290 Or at 501
(“[E]vidence [gained from a consent search during or after
alleged police illegality] is to be suppressed only if it is found
that the consent was gained by exploitation of the illegality
or that defendant’s free will was tainted by the illegal police
conduct.” (Citing other state and federal jurisdictions that
apply Wong Sun to consent searches.)). The United States
Supreme Court also has employed exploitation analysis in
the context of consent searches, even when the consent was
“voluntary,” in the sense that it was not coerced. See, e.g.,
Florida v. Royer, 460 US 491, 103 S Ct 1319, 75 L Ed 2d 229
(1983) (voluntary consent to search tainted by illegal deten-
tion by police).
	        The relationship between the voluntariness of con-
sent and exploitation, of course, is a close one: often, when
the circumstances support the determination that consent
was voluntary, they also will support the conclusion that
140	                                        State v. Hemenway

there was no exploitation of any prior police misconduct,
and the converse is also true. Yet it is important to empha-
size that the tests are not identical and that they address
separate concerns. As Professor LaFave notes,
   “While there is a sufficient overlap of the voluntariness
   and [exploitation] tests that often a proper result may be
   reached by using either one independently, it is extremely
   important to understand that (i) the two tests are not iden-
   tical, and (ii) consequently the evidence obtained by the
   purported consent should be held admissible only if it is
   determined that the consent was both voluntary and not an
   exploitation of the prior illegality.”
Wayne R. LaFave, 4 Search and Seizure § 8.2(d), 76 (4th
ed 2004) (emphasis in original; footnote omitted). We agree.
Applying both the tests for voluntariness of consent and for
exploitation is necessary to vindicate a defendant’s right
to be free from unreasonable search and seizure. When the
police stop an individual without reasonable suspicion, the
individual’s liberty is restrained in violation of Article I,
section 9. Because the person stopped is unable to termi-
nate the interaction with police, he or she is subject to police
authority in excess of constitutional bounds and is thereby
placed at a disadvantage relative to the constitutional posi-
tion that he or she would have occupied absent the illegal
police interference. Exploitation analysis recognizes that
police conduct that constitutes an illegal stop may fall short
of coercing a defendant to consent to a subsequent request to
search, but nevertheless may require suppression because
the police took advantage of information gained from their
illegal conduct to obtain consent—an advantage that they
would not have had had the police stayed within the bounds
of the law. Hall, 339 Or at 27-28. It is that exploitation of the
prior police illegality that must be remedied (or vindicated).
See State v. Sargent, 323 Or 455, 462-63, 918 P2d 819 (1996)
(suppression of evidence required only when the evidence is
tainted by the constitutional violation); State v. Williamson, 307
Or 621, 626, 772 P2d 404 (1989) (search not valid when consent
is “obtained under the pressure of police action that became
available to police only by the prior unauthorized conduct”).
	       With that background in mind, we turn to the exploi-
tation test articulated in Hall. As noted, Hall announced
Cite as 353 Or 129 (2013)	141

a two-part test for determining whether evidence acquired
from a voluntary consent search must be suppressed because
the consent was derived from an illegal seizure. First, the
defendant must establish a “minimal factual nexus—that
is, at minimum, the existence of a ‘but for’ relationship—
between the evidence sought to be suppressed and prior
unlawful police conduct.” 339 Or at 25. Once the defendant
establishes that causal link, the burden shifts to the state to
prove that the evidence nevertheless is admissible because
“the defendant’s consent was independent of, or only tenu-
ously related to, the unlawful police conduct.” Id. at 34-35.
	        For the reasons that follow, we disavow the “min-
imal factual nexus” part of the Hall test and instead hold
that, when a defendant has established that an illegal
stop occurred and challenges the validity of his or her sub-
sequent consent to a search, the state bears the burden
of demonstrating that (1) the consent was voluntary; and
(2) the consent, even if voluntary, was not the product of
police exploitation of the illegal stop. In deciding whether
the voluntary consent was a product of police exploitation of
the illegal stop, the court must evaluate whether the police
took advantage of the illegal aspects of the earlier police
behavior to obtain consent or whether other circumstances
were sufficient to purge the taint of the prior illegality on
the evidence that the police ultimately obtained. As noted
in Hall, 339 Or at 44, the state also may prove that the evi-
dence is admissible by showing that the evidence was gained
through an independent, lawful source or that the evidence
inevitably would have been discovered by the police using
lawful procedures.
	        As discussed further below, we disavow the “min-
imal factual nexus” part of the Hall test because it was
drawn from a case that arose in a significantly different pro-
cedural context, and it did not take into account a relevant
statute. Moreover, since this court issued Hall, the test has
been unevenly applied and, apparently, has proved confus-
ing to lawyers and judges.
	         Hall adopted the “minimal factual nexus” component
of its test from State v. Johnson, 335 Or 511, 73 P3d 282 (2003).
In that case, the defendant sought to suppress evidence that
142	                                     State v. Hemenway

had been seized illegally but then later “reseized” pursu-
ant to a warrant. The state asserted that the warrant was
“entirely independent of, and was not obtained by exploita-
tion of, the previous illegality.” Id. at 519. Ordinarily, a
search performed under authority of a warrant is subject
to a presumption of regularity, and the party challenging
the evidence bears the burden to prove the unlawfulness of
the search or seizure. Id. at 520-21. Before addressing the
state’s exploitation argument, the court addressed which
party bore the burden with regard to proving exploitation
or its absence. Because of the presumption of regularity
when the police act under authority of a warrant, the court
concluded that the defendant had an initial burden to estab-
lish a “factual nexus” between prior illegal police conduct
and the evidence gained pursuant to an independently valid
warrant. Id. at 521. Once a defendant demonstrates that
nexus, the court in Johnson wrote, “the presumption of reg-
ularity [of the warrant] is undermined and the burden of
proof fairly may be shifted to the government to show that
the evidence is not tainted by the misconduct.” Id.
	       This court’s reliance in Hall on Johnson was mis-
placed. By statute, whenever a defendant challenges evi-
dence seized following a warrantless search, the state bears
the burden of proving “by a preponderance of the evidence
the validity of the search.” ORS 133.693(4); State v. Tucker,
330 Or 85, 87, 997 P2d 182 (2000). When the police conduct
a search and seize evidence without a warrant, as in Hall
and in this case, there is no presumption of regularity to
overcome, because there was no warrant and, thus, there is
no need for a threshold showing by the defendant to shift
the burden to the state. The state already has the burden to
prove that the warrantless search was valid.
	         Moreover, under the Hall test, parties were required
to first focus on whether or not a “minimal factual nexus”
was present, rather than examining the more central issues
of (1) whether the police had acted unlawfully in making the
initial stop, and (2) whether the later consent to search and
subsequently discovered evidence were obtained through
exploitation of the unlawful police conduct. However, exploi-
tation analysis already considers the existence of a “minimal
Cite as 353 Or 129 (2013)	143

factual nexus,” because determining whether the police
exploited their unlawful conduct to gain the disputed evi-
dence necessarily requires an examination of the causal
connection between the police conduct and the defendant’s
consent. Accordingly, the “minimal factual nexus” test is not
analytically significant in determining whether the consent
was the product of the illegal police conduct, such that evi-
dence obtained pursuant to that search must be suppressed.
Additionally, it is unnecessary to shift the burden of proving
lack of exploitation to the state because, as noted, the state
already bears the burden of proving that evidence obtained
from a warrantless search is valid.
	        Because the “minimal factual nexus” test adopted
in Hall does not have firm grounding in our case law and is
inconsistent with ORS 133.693(4)—and because the appli-
cation of the test has been unclear in our cases since Hall
and has proved confusing to litigants and the courts—we
disavow that part of the Hall analysis.
	        We now turn to the remaining—and more central—
part of the Hall exploitation test. That test requires the
state to prove “that the defendant’s consent was indepen-
dent of, or only tenuously related to, the unlawful police con-
duct.” 339 Or at 35. Hall posited two scenarios that require
suppression:
      “A causal connection requiring suppression may exist
      because the police sought the defendant’s consent solely as
      the result of knowledge of inculpatory evidence obtained
      from unlawful police conduct. A causal connection requir-
      ing suppression also may exist because the unlawful police
      conduct, even if not overcoming the defendant’s free will,
      significantly affected the defendant’s decision to consent.”
Id. Hall identified three factors for assessing whether the
causal connection “significantly affected” the defendant’s
decision to consent and thus requires suppression:
      “(1) the temporal proximity between the unlawful police
      conduct and the defendant’s consent, (2) the existence of
      any intervening circumstances, and (3) the presence of
      any circumstances—such as, for example, a police officer
      informing the defendant of the right to refuse consent—
      that mitigated the effect of the unlawful police conduct.”
Id.
144	                                       State v. Hemenway

	         The state asserts that the Hall test does not afford
sufficient weight to a defendant’s decision to voluntarily
relinquish his or her Article I, section 9, right to be free from
unreasonable governmental searches and seizures because,
under Hall, suppression almost always will be required
when consent is granted in close temporal proximity to an
illegal stop. In Hall itself, the court required suppression,
“[g]iven the close temporal proximity between the illegal
detention and defendant’s consent, and the absence of any
intervening circumstances or other circumstances mitigat-
ing the effect of that unlawful police conduct.” Id. at 36. This
court’s cases following Hall have reached similar results.
See, e.g., State v. Rodgers/Kirkeby, 347 Or 610, 630, 227
P3d 695 (2010) (evidence suppressed under Hall when con-
sent granted in close temporal proximity to illegal stop and
state failed to demonstrate intervening or mitigating cir-
cumstances); State v. Ayles, 348 Or 622, 637-39, 237 P3d 805
(2010) (same).
	         We agree that the exploitation test announced in
Hall does not account sufficiently for the importance of a
defendant’s voluntary consent to search. Our cases demon-
strate that, in some situations, a defendant’s voluntary con-
sent itself may be sufficient to demonstrate that the search
was reasonable and permitted, notwithstanding the prior
illegality. See Rodriguez, 317 Or at 41-42; Williamson, 307
Or at 626 (both rejecting proposition that consent “can
never legitimize” a search following illegal police conduct).
That legal determination—whether consent has so attenu-
ated the connection between the prior illegal conduct and
the evidence obtained in the consent search—requires a
court to consider the illegal conduct that comprised the stop,
the character of the consent, and the causal relationship
between the two. In Kennedy, for example, the defendant’s
consent was not “tainted” by the illegal police conduct when
there was an “absence of any coercive circumstances sur-
rounding [the] defendant’s consent” and the defendant vol-
unteered consent without prompting from the officers. 290
Or at 506.
	         The court in Hall asserted that the unprompted
grant of consent in Kennedy and a similar volunteering of
consent in Rodriguez were intervening circumstances that
Cite as 353 Or 129 (2013)	145

cut off the causal connection between the consent and the
prior illegal conduct. Hall, 339 Or at 34. Hall, however,
suggested that, had the police asked for (and obtained) the
defendant’s consent in Rodriguez—rather than the defen-
dant having volunteered to be searched—suppression would
have been required. Id. By asserting that an unprompted
consent is an intervening circumstance sufficient to mitigate
the taint of the prior illegality but positing that a requested
consent on the same facts would not purge the taint, Hall,
in effect, created a per se rule that evidence gained from a
requested consent search always must be suppressed if that
request occurs in close temporal proximity to the illegal stop
and the state cannot demonstrate some breach in the causal
chain.
	        The fact that a consent to search was unprompted or
unilateral is relevant evidence of the voluntariness of the con-
sent; as recognized in Kennedy and Rodriguez, unprompted
or unilateral consent is less likely to be a product of illegal
police conduct. However, the fact that an officer requested
consent does not demonstrate that the officer necessarily
exploited the prior illegal conduct to gain consent. Rodriguez,
for example, involved a voluntary consent following an ille-
gal arrest. The officer did not directly ask the defendant for
consent to search, but he did ask the defendant if he had
any drugs or guns in his apartment. Rodriguez, 317 Or at
41. In response to that question, the defendant said, “No,
go ahead and look.” Id. So, even if the defendant’s consent
in Rodriguez was “volunteered,” that consent was, in fact,
prompted by the officer’s question about drugs and guns.
Rodriguez concluded, nevertheless, that the officer “did not
trade on or otherwise take advantage of the arrest to obtain
defendant’s consent” in light of the factual circumstances,
including the manner in which the defendant had granted
consent. Id.
	        Properly considered, then, a voluntary consent to
search that is prompted by an officer’s request can be suf-
ficient to purge the taint of illegal police conduct. Whether
the voluntary consent is sufficient to purge the taint—or
whether the police exploited their illegal conduct to obtain
consent—will depend on the totality of the circumstances.
We reject the state’s position that voluntary consent during
146	                                      State v. Hemenway

an unlawful stop necessarily breaks the causal chain and
makes the evidence admissible, as we do defendant’s argu-
ment that such consent will rarely, if ever, break the causal
chain.
	        In an effort to clarify this complicated area of law,
we again review the basic principles at issue. As noted, the
overarching inquiry is whether the evidence that the state
seeks to introduce must be suppressed because that evi-
dence was obtained in violation of the defendant’s consti-
tutional rights. In the context of Hall and this case, where
an illegal stop preceded a consent to search, that inquiry
has two prongs. First, the court must assess whether the
consent was voluntary. If the consent to search was not vol-
untary, then the evidence must be suppressed, because only
a voluntary consent to search provides an exception in this
context to the warrant requirement of Article I, section 9.
Second, even if the consent was voluntary, the court must
address whether the police exploited their prior illegal con-
duct to obtain the evidence. Evidence may be tainted directly
by the illegal police conduct, if, for example, the police ille-
gally stop a vehicle, allowing them to view contraband that
otherwise would not have been visible, and then request the
driver’s consent to search the vehicle as a result of what
they saw. The consent in that example does not “purge the
taint” of the prior illegal stop, because the evidence has a
direct causal connection to the illegal conduct.
	        Evidence also may be tainted if the police obtained
the consent to search through less direct exploitation of their
illegal conduct. As noted, Hall identified several factors for
analyzing whether the police exploited their illegal conduct
to obtain consent. Those factors include the temporal prox-
imity between the illegal police conduct and the consent and
the presence of any intervening or mitigating circumstances,
such as Miranda warnings or other admonitions. Hall, 339
Or at 35, 35 n 21. Additionally, the purpose and egregious-
ness of the illegal police conduct is relevant to whether the
police exploited that conduct to obtain the defendant’s con-
sent to search. See Brown v. Illinois, 422 US 590, 603-04,
95 S Ct 2254, 45 L Ed 2d 416 (1975) (identifying “the pur-
pose and flagrancy of the official misconduct” as relevant to
exploitation analysis under the Fourth Amendment); see also
Cite as 353 Or 129 (2013)	147

Wolfe, 295 Or at 572 (explaining that the Brown exploita-
tion factors, including “the purpose and flagrancy of the offi-
cial misconduct,” were relevant to determine the effect of
police misconduct on the voluntariness of a defendant’s con-
sent to search). Hall asserted, without discussion, that “the
Brown factor of ‘purpose and flagrancy of the official miscon-
duct’ relates to only the deterrence rationale of the Fourth
Amendment exclusionary rule and has no applicability to
the exclusionary rule under Article I, section 9.” 339 Or at 35
n 21. Although Hall was correct that the Oregon exclusion-
ary rule, unlike the federal one, does not balance the value
of deterrence against the costs of exclusion in determining
whether evidence should be suppressed, id. at 23-24, we
clarify here that the “purpose and flagrancy” of police mis-
conduct nonetheless may play a role in exploitation analy-
sis. For example, police misconduct that is intended to gain
a defendant’s consent may well be more likely to substan-
tially affect that defendant’s decision to consent. Likewise,
particularly egregious police misconduct—such as exces-
sive use of force in unlawfully seizing a defendant—is more
likely to affect the defendant’s decision to consent than
more restrained police behavior. The verbal and nonverbal
interactions between a defendant and the police leading up
to the consent itself are relevant to whether or not the police
gained consent through exploitation.
	        Stated in terms of the state’s burden, the state
must prove that the defendant’s consent was sufficient to
attenuate the taint of the illegal police conduct. We empha-
size that the state is not required to prove that there was
no causal link whatsoever between the illegal conduct and
consent; rather, the state must prove that the illegal police
conduct was a minor or remote cause. See Rodriguez, 317 Or
at 40 (“Mere physical presence as a result of prior unlaw-
ful conduct does not constitute exploitation of that con-
duct. Exploitation occurs when the police take advantage
of the circumstances of their unlawful conduct to obtain the
consent to search.”). As this court often has stated, but-for
causation—that, as a factual matter, the illegal police con-
duct was a necessary link in the sequence of events that
led to the consent search and the evidence—is insufficient
to require suppression. Kennedy, 290 Or at 500-01. If the
148	                                      State v. Hemenway

defendant shows that he or she was stopped illegally and
challenges the validity of his or her consent to search, then
the state is required to prove that the police did not exploit
their illegal conduct to obtain consent. If the state fails to
make that showing, the evidence will be suppressed. How-
ever, if the state can show that the illegal conduct did not
“significantly affect[ ]” the consent that the police obtained,
then the state has established that the police did not exploit
that conduct, and suppression is not required. Hall, 339 Or
at 35.
	         In analyzing exploitation, it must be remembered
that Article I, section 9, prohibits “unreasonable” searches
and seizures. As the preceding discussion demonstrates,
the test for whether a consent search conducted following
an illegal stop comports with Article I, section 9, cannot be
reduced to a simple formula. On the contrary, like all rea-
sonableness determinations, whether a particular search or
seizure is unreasonable necessarily depends on the facts of
each case.
	         We again emphasize that, in addition to analyzing
possible exploitation of prior police misconduct—the issue
in this case—the trial court must consider whether the
defendant’s consent was voluntary. If the defendant’s con-
sent was not voluntary, the evidence obtained as a result of
that search must be suppressed, regardless of whether any
exploitation occurred. See, e.g., State v. Guggenmos, 350 Or
243, 261-62, 262 n 8, 253 P3d 1042 (2011) (finding no reason
to determine whether exploitation analysis would require
suppression of evidence because determination that consent
was not voluntary required suppression); Williamson, 307
Or at 626-27 (Carson, J., concurring) (“The validity of [the
defendant’s] consent determines the outcome of this case. If
the consent were involuntary and, thus, invalid, the subse-
quent search and resulting seizure, arrest, and conviction
likewise were invalid.”). Because the tests for exploitation
and voluntariness, while overlapping, are not identical, it is
important that the trial court consider both tests in deciding
whether to suppress evidence obtained in a consent search
that follows an illegal stop.
	         We turn to several issues that the dissent raises.
The dissent argues, among other things, that we have
Cite as 353 Or 129 (2013)	149

overruled Hall and other cases sub silentio; abandoned an
“objective” and “logical” test for one that is “more intru-
sive and less clear”; and failed to “grapple sufficiently with
whether defendant’s consent was * * * a product of the
officer’s unlawful stop and detention.” 353 Or at 163-64
(Walters, J., dissenting). The dissent is wrong on each count.
In this case, we clarify the rule announced in Hall. The state
asked us to overrule Hall, arguing that, if a defendant who
is unlawfully stopped by police voluntarily consents to a
search, then that consent always makes the search reason-
able and the evidence seized in the search admissible. We
expressly reject that argument. Instead, we adhere to Hall
in holding that evidence obtained from a consent search
must be suppressed if the consent was obtained through
exploitation of the unlawful police conduct. Under Hall—
and under our decision today—the state must prove that
“the defendant’s consent was independent of, or only tenu-
ously related to, the unlawful police conduct.” Hall, 339 Or
at 35. That analysis is consistent with our reliance in Hall
on long-standing exploitation analysis derived from the
United States Supreme Court’s decision in Wong Sun and
this court’s cases following Wong Sun, including Kennedy
and Rodriguez. In this case, as discussed above, 353 Or at
143-47, we modify the exploitation test announced in Hall,
because we conclude that it did not give sufficient weight
to a defendant’s voluntary consent to a search, as well as to
other factors such as the purpose and egregiousness of the
police misconduct.3
	         We also disagree that Hall established a logical,
easily applied test that we have now abandoned for one that
is more intrusive and less clear. Hall, as noted, followed the
exploitation analysis of Wong Sun and required consider-
ation of “the effect of the unlawful police conduct upon the
defendant’s decision to consent.” 339 Or at 32. That determi-
nation “requires examination of the specific facts at issue in
	   3
       The dissent argues that we have “reverse[d]” and “effectively overrul[ed]”
Hall and Rodgers/Kirkeby, suggesting that the results in those cases would have
been different under the test that we adopt here. Whether the outcome in Hall
and Rodgers/Kirkeby would have been different under the analysis set out here is
speculative. The issue whether a defendant’s consent was the “product” of unlawful
police conduct or, put differently, whether police “exploited” their unlawful conduct
to obtain consent, is necessarily dependent on the facts of the particular case and
on the record developed in the trial court.
150	                                      State v. Hemenway

a particular case,” including “temporal proximity” between
the unlawful police conduct and the defendant’s consent,
“intervening circumstances,” and other circumstances that
“mitigated the effect of the unlawful police conduct.” Id. at
35. In this case, we point out that the focus on “temporal
proximity” too easily leads to the conclusion that any con-
sent search that occurs when a person is unlawfully stopped
is invalid, when the better-framed question is whether
police exploited the unlawful stop to obtain the consent. It is
true that that test requires consideration of the totality of
the circumstances of the stop and the police-citizen encoun-
ter, but that is often the case in deciding search and seizure
cases.
	        Finally, the dissent’s claim that we fail to “grapple
sufficiently” with the question whether the consent given in
this case was the “product” of the unlawful stop seems to con-
tradict its argument in favor of a simpler test. As our appli-
cation below of the test that we have articulated to the facts
of this case demonstrates, the test is more nuanced than
that announced in Hall and takes into account the totality
of the circumstances of the encounter. As we describe below,
that test provides a more careful and more full consider-
ation of the facts that lead to a determination as to whether
the consent was the “product” of the unlawful police conduct
than did the test in Hall.
                       APPLICATION
	        We return to the issue in this case. The Court of
Appeals concluded that defendant had been stopped “when
the movement of his truck was physically constrained, he
was directed to move to a location to speak with a deputy,
his identification was obtained, and he was questioned by
the deputy.” Hemenway, 232 Or App at 411. The court
also determined that the stop was unlawful because the
police had lacked reasonable suspicion that defendant was
engaged in criminal conduct. Id. The state does not chal-
lenge the Court of Appeals’ determination that defendant
was illegally stopped, and we therefore do not consider that
issue further.
	       After being stopped, defendant then consented to
three searches. Defendant agrees that his consent to search
Cite as 353 Or 129 (2013)	151

was “voluntary” in the sense used in our cases—that is, that
the consent was not coerced. The only question, then, is
whether defendant’s consent was gained through exploita-
tion of the illegal stop. The Court of Appeals concluded
that it was, stating that, because defendant’s consent had
occurred “contemporaneously with the stop, with no inter-
vening or mitigating factors[,] [i]t was therefore dependent
on the unlawful stop and was not attenuated” under Hall.
Id. at 416.
	         Because exploitation is a fact-intensive inquiry, we
review the facts in some detail. Defendant’s girlfriend,
Taylor, called 9-1-1 regarding the whereabouts of her son,
who was overdue from a visit to a friend’s house, and an
unspecified problem with electrical power at the house.
Close to midnight and several hours after Taylor had placed
the call, two officers arrived at Taylor’s residence in sepa-
rate vehicles. Defendant was in the process of moving out,
and his truck, filled with his belongings, was parked in the
driveway. The officers parked in the driveway, behind defen-
dant’s truck. Both Taylor and defendant were outside the
residence when the officers arrived. Deputy Orella observed
a rifle in defendant’s truck and told Deputy Russell. Orella
approached Taylor and directed defendant to speak with
Russell.
	         Defendant stated that he was moving out and that
he had a handgun and another firearm in the truck, in addi-
tion to the rifle. Russell asked if defendant was a felon and
requested defendant’s name and date of birth, which defen-
dant provided. Russell and defendant engaged in what the
trial court described as “chit-chat of an innocuous nature,”
and, according to Russell:
   “[Defendant] asked if he could have a cigarette, and I said
   that’s no problem. Asked him if he’d have a problem with
   me searching him just to put me at ease and then he could
   have his hands wherever he wanted and we wouldn’t have
   to worry about, you know, knowing if there [were] weapons
   or anything else on him he shouldn’t have.”
The trial court found that Russell was “concerned because
the [d]efendant had his hands in his pockets which were
bulky, had weapons in the vehicle and it was very dark at
their location.” Defendant consented to that search. Russell
152	                                        State v. Hemenway

found a small tin in defendant’s pocket and asked if he could
open it. Defendant again consented, and the deputy found
drug paraphernalia and residue. The officer arrested defen-
dant and gave him Miranda warnings. Defendant then con-
sented to a search of the residence. The trial court found that
the tone of the interactions between defendant and Russell
had been “normal” prior to the arrest and that defendant
had been “cooperative and forthcoming.”
	       In this court, as noted, the state does not chal-
lenge the Court of Appeals’ determination that, at the time
of defendant’s consents to the searches, he had just been
unlawfully stopped. Accordingly, the temporal proximity
factor weighs in defendant’s favor. See Ayles, 348 Or at 637.
	        On the other hand, there is no evidence that the police
conduct in this case was egregious; indeed, the trial court
described the interaction between Russell and defendant as
“amicable and casual,” and the record amply supports that con-
clusion. Regarding the purpose of the police actions, the stop
occurred around midnight during a welfare check initiated by
defendant’s girlfriend, who was concerned about the where-
abouts of her son. Although the officers parked their cars in
the driveway behind defendant’s truck, there was no indica-
tion that they did so for the purpose of blocking him from leav-
ing. Moreover, the police had observed a rifle in defendant’s
truck when they first arrived, before any stop occurred. Defen-
dant then had volunteered that he was moving his possessions
out of the house and that he also had a handgun and another
firearm in the truck. The officers’ interactions with defendant,
then, were—at least initially—for the lawful purpose of inves-
tigating Taylor’s call to the police. There is no indication that,
when the officers stopped defendant, they did so with the pur-
pose of searching for evidence, in contrast to Williamson, 307
Or at 623, 623-24 n 1.
	        We turn to defendant’s three consents to search.
As to each consent, the trial court found that there was no
evidence of police coercion, either express or implied, and
that each consent had been voluntary. On review, defendant
does not dispute that conclusion. He argues, instead, that
the police exploited their illegal stop to obtain his consent
to the searches that led to the evidence upon which he was
Cite as 353 Or 129 (2013)	153

convicted and that, under Hall, the evidence therefore must
be suppressed. The trial court found that the police made no
verbal or physical threats and did not approach defendant
with weapons drawn. The trial court described defendant as
“cooperative” throughout the entire encounter.
	         As to defendant’s first consent, the trial court found
that, when Russell had asked to search defendant to “ease
his mind,” defendant “readily agreed.” Defendant testified at
the suppression hearing that he consented to the first search
to show that “I wasn’t any kind of a threat to him.” The evi-
dence supports the trial court’s conclusion that defendant
had consented to “ease [Russell’s] mind.” The cause of the
consent, then, does not appear to be the illegal conduct by
the police. Rather, the setting of the interaction—the wel-
fare check, the darkness, defendant’s acknowledged posses-
sion of firearms in his truck, and defendant’s desire to have
a cigarette while the police conducted the welfare check—
and the testimony of defendant and the officers indicates
that defendant’s consent was not the product of the unlaw-
ful stop. Aside from the close temporal proximity to the stop,
there is no evidence that Russell exploited any aspect of the
stop to obtain defendant’s first consent. Accordingly, we hold
that defendant’s first consent was not a product of the ille-
gal stop.
	         During the first search, Russell discovered a small
tin and requested consent to open it. Defendant responded,
according to Russell, in a “low mopey voice” that he could, and
Russell discovered a methamphetamine pipe and metham-
phetamine residue. Russell did not threaten or cajole defen-
dant regarding the tin; he simply requested consent to open
it. There is no evidence that Russell took advantage of the
fact that defendant was unable to terminate the encoun-
ter to gain defendant’s consent to open the tin. Given that
the first search, which led to the discovery of the tin, was
valid and that there is no indication in the record that
Russell exploited the stop to gain defendant’s consent to
open the tin, the evidence in the tin was not tainted by the
prior illegal conduct. Because the drug evidence from the tin
was not tainted by the unlawful stop, defendant’s Article I,
section 9, right to be free from unreasonable seizure would
not be vindicated by suppressing that evidence.
154	                                      State v. Hemenway

	        After discovering the contraband, Russell arrested
defendant and gave him Miranda warnings. Defendant
acknowledged that there might be more drugs in the house
and consented to a search of the house. Defendant then led
Russell to more contraband. As noted, defendant’s prior con-
sents were valid, and, therefore, the evidence gained from
those searches was not tainted by the illegal stop. Discovery
of that drug evidence gave Russell probable cause to arrest
defendant. Moreover, defendant had been given Miranda
warnings before Russell requested consent to search the
house. Accordingly, defendant’s arrest was lawful, and defen-
dant’s voluntary consent to search the house following his
arrest did not violate Article I, section 9, of the Oregon Con-
stitution.
	       The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
	        LANDAU, J., concurring.
	        I agree with the majority’s disposition and reason-
ing on the merits in this case. I write separately to address
the state’s argument that we should reexamine the search
and seizure guarantee of Article I, section 9, in accordance
with this court’s “usual paradigm” for constitutional inter-
pretation. The majority summarily rejects the state’s argu-
ment. State v. Hemenway, 353 Or 129, 137-38, 295 P3d 617
(2013). I agree with the majority’s ultimate conclusion, but I
think that it is important to set out some of the reasons why
that conclusion is correct.
	        The state’s argument is predicated on Stranahan
v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000), in which
this court observed that “it long has been the practice of
this court to ascertain and give effect to the intent of the
framers” of a disputed provision of the state constitution. Id.
at 54 (internal quotation marks omitted). The court invited
litigants to present arguments that we should reconsider
prior case law because of a “failure on the part of this court
at the time of the earlier decision to follow its usual par-
adigm for considering and construing the meaning of the
provision in question.” Id. In light of what this court said in
Stranahan, I do not fault the state for making the argument
that it advances in this case. I do, however, take issue with
Cite as 353 Or 129 (2013)	155

Stranahan and its stated commitment to a jurisprudence of
original intent.
	        At the outset, I question the accuracy of Stranahan’s
observation that such has been the longstanding practice of
the court. If the court meant that there are some very old
cases in which the court applied that interpretive approach, I
suppose the observation is true enough.14But I take Stranahan
to assert that originalism25 is a well-established methodology
that this court has consistently applied for a long time. In
that regard, Stranahan is incorrect. Sometimes the court
has applied that interpretive approach, and sometimes it
has not. See, e.g., Dodd v. Hood River County, 317 Or 172,
180-82, 855 P2d 608 (1993) (state constitutional takings
clause interpreted without reference to framers’ intentions);
State v. Mai, 294 Or 269, 272, 656 P2d 315 (1982) (state con-
stitutional compulsory process clause is construed “in the
same way as the [United States] Supreme Court construed
the virtually identical federal counterpart” and without ref-
erence to the intention of its Oregon framers).
	        That said, there certainly are a number of cases in
which the court determined the meaning of the state consti-
tution by reference to the “framers’ intentions.” In fact, in
more than a few cases, the court has effectively limited the
scope and meaning of a provision of the state constitution
to whatever its framers would have understood it to mean
in 1857. At the very least, there is language in a number of
those opinions that has understandably led parties—such
as the state in this case—to argue that our state’s constitu-
tion means no more than what it meant to its framers at the
time of its adoption.

	    14
        The court in Stranahan cited Jones v. Hoss, 132 Or 175, 178, 285 P 205
(1930). There are actually older cases, such as Noland v. Costello, 2 Or 57, 58-59
(1863), that refer to the intentions of the framers of the state constitution.
	    25
         I use the term somewhat loosely to refer to the mode of constitutional inter-
pretation that regards the meaning of a provision as frozen in time in accordance
with the intentions of those who adopted the constitution or with the meaning
of the constitution as it would have been understood at that time. I understand
that, among scholars, there is a difference between original intent and original
public meaning, see, e.g., Keith E. Whittington, The New Originalism, 2 Geo J L
& Pub Pol’y 599 (2004) (describing transition among originalist scholars from
emphasizing original intent to original public meaning), but that is a distinction
that this court’s prior cases have not consistently recognized.
156	                                                   State v. Hemenway

	In Lakin v. Senco Products, Inc., 329 Or 62, 72, 987
P2d 463 (1999), for instance, this court sweepingly declared
of the right to a jury trial guaranteed in Article I, section 17,
that “whatever the right to ‘Trial by Jury’ meant in 1857,
it means precisely the same thing today.” In Smothers v.
Gresham Transfer, Inc., 332 Or 83, 118, 23 P3d 333 (2001), to
pick another example, the court announced that the purpose
of the remedy clause of Article I, section 10, “is to protect
absolute common-law rights respecting person, property, and
reputation, as those rights existed when the Oregon Consti-
tution was drafted in 1857.” And in State v. Delgado, 298 Or
395, 401, 692 P2d 610 (1984), to pick still another, the court
held that the question whether the state constitutional right
to bear arms applies to the possession of a switch-blade knife
depends on “whether the drafters would have intended the
word ‘arms’ to include the switch-blade knife[.]”
	        In my view, the idea that the original state consti-
tution means no more than what it meant to its framers in
1857 is untenable. To begin with, all too often, the state of the
historical record is such that we simply cannot know what
the framers had in mind.36We do not even know with any
certainty that the framers intended that their intentions or
understandings should count in future constitutional inter-
pretation.47But even when the historical record does permit
	   36
        When faced with such circumstances, this court in some cases has attributed
to the framers of the Oregon Constitution knowledge of information that there is
no evidence they actually possessed. See, e.g., State v. Cookman, 324 Or 19, 28-31,
920 P2d 1086 (1996) (attributing to the framers of the Oregon Constitution an
intention to follow an 1822 Indiana Supreme Court decision interpreting the 1816
version of the Indiana Constitution that was the predecessor to the 1851 Indiana
Constitution that is presumed to be the basis for Oregon’s ex post facto clause,
because the decision was, at least in a temporal sense, “available” to the Oregon
framers). The effect is to reconstruct a presumed intention that we have no way of
knowing accords with reality.
	   47
       That the delegates to the Oregon Constitutional Convention expressly
declined to create any official record of their debates would seem to suggest that
they did not care one way or the other. One of the arguments in favor of keeping
a record of the convention was precisely to preserve a record of the intentions of
the framers for future reference. Charles H. Carey ed., The Oregon Constitution
and Proceedings and Debates of the Constitutional Convention of 1857 140 (1926).
But the argument failed to carry the day. Moreover, any suggestion that the
prevailing interpretive conventions of the day presumed that the intentions or
understandings of the framers would control is at least debatable. See, e.g., John
P. Figura, Against the Creation Myth of Textualism: Theories of Constitutional
Interpretation in the Nineteenth Century, 80 Miss LJ 587 (2010) (summarizing
various interpretive approaches reflected in nineteenth-century treatises).
Cite as 353 Or 129 (2013)	157

some inferences and conclusions about the original inten-
tions and understandings of the framers, the idea that those
intentions and understandings are controlling makes the
state’s highest law little more than a historical artifact of an
era that few in this century actually would choose as a deter-
minant of individual rights and government authority—an
era, it should be remembered, when women possessed few
political and civil rights, when the common law recognized
no protections for workers, and when the people decreed that
a “negro” or “mulatto” who did not already reside in the state
when the constitution was adopted was not permitted to
reside in Oregon. Or Const, Art I, § 35, repealed 1926.
	        That is not to say that the historical context for
the adoption of a constitutional provision is irrelevant. All
provisions of a state constitution were adopted at a specific
point in history. That history—including the intentions or
understandings of the framers (or perhaps more precisely,
the voters)58—is always relevant. State constitutions, after
all, are commands designed to instruct citizens and gov-
ernment officials about the powers of government and the
limitations on the exercise of those powers. As such, those
commands invite consideration of their intended purposes.69
	        A number of constitutional provisions are of rela-
tively recent vintage, adopted with comprehensive records
as to the intentions or understandings of their makers, and
prepared with the obvious expectation that those records be
taken into account in determining the meaning of the provi-
sions. In such cases, it makes much sense to heed carefully
the available evidence of their intended purposes.710
	   58
        It is common to refer to the intentions of the “framers,” but, given that the
constitution derives its force from ratification by the people, it is actually the voters,
not the framers in the constitutional convention, whose intentions or understand-
ings count. See Monaghan v. School District No. 1, 211 Or 360, 367, 315 P2d 797
(1957) (“The constitution derives its force and effect from the people who ratified it
and not from the proceedings of the convention where it was framed[.]”).
	   69
       Thus, Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), appropriately
requires an examination of “the historical circumstances” that led to the adoption
of a provision of the original constitution. Priest, however, does not require, as
some of this court’s later cases have suggested, that those historical circumstances
determine the meaning of the provision at issue.
	   710
       Accordingly, the approach to constitutional interpretation of amendments
adopted by initiative set out in Ecumenical Ministries v. Oregon State Lottery
Comm., 318 Or 551, 559-60, 871 P2d 106 (1994), with its focus on ascertaining the
intentions of the people who adopted the amendments, seems correct to me.
158	                                                     State v. Hemenway

	         But much of the original constitution consists of
vaguely worded clauses adopted a century and a half in the
past, with little or no record of their meanings or purposes. In
such cases, it is difficult to speak with any precision about the
intentions of the framers. Moreover, whatever we do know of the
specific intentions of the framers of the Oregon Constitution
is difficult to apply to modern circumstances that were hardly
in the contemplation of persons who lived in the middle of the
nineteenth century. At best, the historical record will offer, in
very general terms, an idea of some underlying principles that
may have animated the original provisions, which principles
may be applied to modern circumstances.811
	         The search and seizure clause of Article I, section 9,
that is at issue in this appeal is an excellent case in point.
The clause requires that searches and seizures not be
“unreasonable.” Beyond the fact that the provision was obvi-
ously based on the Fourth Amendment, there is a complete
absence of direct historical evidence of what the framers
intended or what the voters understood about the provi-
sion. It was adopted without discussion in the constitutional
convention, and there is no record of public debate about it
during ratification. See generally Claudia Burton & Andrew
Grade, A Legislative History of the Oregon Constitution of
1857—Part I (Articles I & II), 37 Willamette L Rev 469, 515
(2001) (search and seizure provisions were passed with “no
reported comment or debate”). Any attempt to reconstruct
what the framers or voters might have intended in adopting
Article I, section 9, will yield only speculation. There is no
real consensus among historians about what people thought
about search and seizure guarantees in the late-eighteenth
century. There is an especially fierce debate among schol-
ars about the original understanding of the Fourth Amend-
ment.912There is perhaps slightly less controversy about the
	   811
        Some of this court’s more recent cases properly reflect that interpretive
approach. See, e.g., State v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011) (“[The
purpose of historical analysis] is not to freeze the meaning of the state constitution
in the mid-nineteenth century. Rather it is to identify, in light of the meaning
understood by the framers, relevant underlying principles that may inform our
application of the constitutional text to modern circumstances.”)
	   912
        The crux of the debate concerns whether the framers of the Fourth Amend-
ment understood or intended that searches and seizures generally require warrants.
Strictly speaking, the Fourth Amendment says only that searches and seizures
be reasonable and that warrants should not issue except on probable cause. Some
Cite as 353 Or 129 (2013)	159

general understanding of state search and seizure clauses in
the early- to mid-nineteenth century; it appears that most
courts at that time interpreted them merely to require that
searches and seizures be “reasonable” under the circum-
stances in which the actions occurred.1013
	        A particularly significant problem with trying to
apply Article I, section 9, as it would have been understood
back in 1857 is the fact that its very wording invites analy-
sis that is not historically bound. The requirement that
searches and seizures be “reasonable” seems to me to neces-
sitate constant reassessment in light of changing circum-
stances. Trying to determine what is reasonable today by
looking solely to nineteenth-century history seems to me
akin to trying to drive a vehicle on an interstate highway by
looking only in the rearview mirror.
	        In short, the majority is correct in rejecting the
state’s contention that we should interpret the search and
seizure clause of Article I, section 9, to reflect only the inten-
tions or understandings of its framers in 1857. My point
in writing separately is to explain my view that there are
important underlying reasons why we should not inter-
pret the search and seizure clause that way—reasons that
scholars, however, argue that the framers understood the amendment implicitly
to require warrants. See, e.g., William J. Cuddihy, The Fourth Amendment:
Origins and Original Meaning 1602-1791 (2009). Others argue that the Fourth
Amendment merely requires that searches and seizures not be unreasonable. See,
e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757
(1994). Still others contend that the “reasonableness clause” of the amendment
was intended only as a preamble and that the sole purpose of operative provision
was to limit the issuance of warrants. See, e.g., Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 Mich L Rev 547 (1999). And yet others argue that
the Fourth Amendment was originally intended only to regulate the issuance of
warrants to search houses. See, e.g., David E. Steinberg, The Uses and Misuses of
Fourth Amendment History, 10 U Pa J Const L 581 (2008).
	    1013
         See, e.g., Rohan v. Sawin, 59 Mass 281, 284-85 (1850) (purpose of state and
federal search and seizure guarantee was solely to require that warrants issue on
sworn complaint establishing probable cause); Wakely v. Hart, 6 Binn 315, 318 (Pa
1814) (state constitution does not prohibit warrantless searches and requires only
that warrants issue on probable cause); Mayo v. Wilson, 1 NH 53, 60 (1817) (state
constitution “does not seem intended to restrain the legislature from authorizing
arrests without warrant, but to guard against the abuse of warrants issued by
magistrates”). In fact, as late as 1927, this court held that “the possession of [a]
warrant is not the controlling consideration of whether a search is reasonable or
unreasonable. An officer armed with a warrant may make an unreasonable search.
An officer without a warrant may make a reasonable search.” State v. De Ford, 120
Or 444, 452, 250 P 220 (1927).
160	                                      State v. Hemenway

counsel the exercise of caution and skepticism in assessing
the significance of such nineteenth-century intentions and
understandings as we interpret other provisions of the orig-
inal constitution, as well.
	       WALTERS, J., dissenting.
	        The majority is bold, and it is deft. The majority
begins by affirming the rule of stare decisis, declaring that
“the party seeking to change a precedent must assume
responsibility for affirmatively persuading us that we
should abandon that precedent” and deciding that the state
did not meet its burden of persuasion in this case. 353 Or
at 137. Then, by sleight of hand, the majority reverses its
holdings in State v. Hall, 339 Or 7, 115 P3d 908 (2005), and
State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), a
case that this court decided just three years ago.
	In Hall, police officers unlawfully and unconstitu-
tionally stopped the defendant without reasonable suspicion
of criminal activity. During the illegal stop, the officers
asked for and the defendant gave his consent to search. The
officers were polite and did not threaten or cajole the defen-
dant. There was no evidence that the officers had acted
egregiously. The court nevertheless held that the evidence
that the officers obtained as a result of the consent search
was not admissible, because the state had not proved “that
defendant’s decision to consent, even if voluntary, was not
the product of the preceding violation of defendant’s rights
under Article I, section 9.” 339 Or at 29 (emphasis added).
	        In this case, the police also unlawfully and unconsti-
tutionally stopped defendant without reasonable suspicion
of criminal activity and asked him for his consent to search.
The majority holds that the evidence that the police obtained
when defendant first consented to the search was admissi-
ble, because it was not the product of the preceding viola-
tion. 353 Or at 154. Yet the majority does not overrule its
holding in Hall, nor does it distinguish it.
	        In 2010, this court reaffirmed its holding in Hall in
State v. Rodgers/Kirkeby, 347 Or 610. In Rodgers/Kirkeby,
the court held that the defendants’ consents to search were
Cite as 353 Or 129 (2013)	161

the products of unlawful detention and must be suppressed.
The court explained:
   “It was during the period of unlawful detention that the
   officers requested that each defendant consent to a search.
   Here, as in Hall, neither defendant spontaneously granted
   the officers consent to search; instead, each defendant gave
   his consent in response to the officers’ requests. The state
   does not advance any argument to this court to satisfy its
   burden under Hall that intervening circumstances or fac-
   tors severed the connection between the unlawful seizures
   and defendants’ consent. Thus, as in Hall, given the tempo-
   ral proximity between the illegal detention and each defen-
   dant’s consent, and in the absence of any other intervening
   circumstances, or other circumstances mitigating the effect
   of the unlawful seizures of each defendant, we conclude
   that each defendant’s consent, even if voluntary, was the
   product of police conduct that violated Article I, section 9.
   Because the consent to search in each case was a product
   of the unlawful seizure, the evidence obtained during the
   search, in both cases, must be suppressed.”
Id. at 630. The officers in Rodgers/Kirkeby did not threaten
or cajole the defendants. There was no evidence that the
officers acted in an egregious manner. If the holding in
Rodgers/Kirkeby is no longer good law, why does the major-
ity not overrule it? If Rodgers/Kirkeby is still good law, why
does the majority not distinguish it?
	        The majority also fails to contend with other cases
that should carry precedential weight. In Hall, the court
carefully considered those cases and said:
   	 “In our view, the circumstances at issue here more
   closely resemble the circumstances at issue in Dominguez-
   Martinez and Toevs, rather than the circumstances at issue
   in Kennedy and Rodriguez. Similarly to the defendants in
   Dominguez-Martinez and Toevs, defendant here consented
   to the search during an unlawful stop. Unlike the defen-
   dants in Rodriguez and Kennedy, defendant’s grant of con-
   sent was not spontaneous but, instead, was made only in
   response to [the officer’s] request that defendant allow a
   search. [The officer] made that request immediately after
   he had questioned defendant about whether defendant was
   carrying any weapons or illegal drugs and while he was
   waiting for the results of defendant’s warrant check. Given
162	                                                       State v. Hemenway

    the close temporal proximity between the illegal detention
    and defendant’s consent, and the absence of any interven-
    ing circumstances or other circumstances mitigating the
    effect of that unlawful police conduct, we cannot say that
    the state has proved that defendant’s decision to consent,
    even if voluntary, was not the product of the preceding vio-
    lation of defendant’s rights under Article I, section 9. We
    therefore conclude that the unlawful seizure of defendant
    vitiated his consent to the search and, for that reason, the
    evidence from that search is inadmissible under Article I,
    section 9.”

339 Or at 36. In this case, the majority relies heavily on
Rodriguez, a case that the court considered and distinguished
in Hall, but says nothing about Dominguez-Martinez and
Toevs, the cases that the court cited in support of its decision
in Hall. Are those cases no longer good law, or are they dis-
tinguishable? The majority does not say.
	        The majority justifies its failure to grapple with the
need for stability and predictability that the rule of stare
decisis fosters by claiming that it has merely “clarified” Hall
while continuing to adhere to the precept that a court must
suppress evidence obtained from a consent search if the
consent was obtained “through exploitation of the unlawful
police conduct.” 353 Or at 137.114Hall and Rodgers/Kirkeby
undoubtedly stand for that precept, but they do not stand for
that precept alone. They also stand for the rule that evidence
is obtained through exploitation when the police unlawfully
stop citizens and, while continuing to detain them without
legal authority to do so, request that they submit to search.
Under Hall and Rodgers/Kirkeby, the law has been that,
in the absence of intervening or mitigating circumstances,
the evidence that the police obtain must be suppressed even
when the citizens’ consents to search are voluntary. This
court may distinguish or even reverse those holdings, but it
should do so openly and in accordance with the rule of stare
decisis. Because the majority does otherwise, I ask the ques-
tion that all citizens have the right to ask: What force does

	   114
       In 2011, this court reiterated that “[f]ew legal principles are so central to our
tradition as the concept that courts should ‘[t]reat like cases alike,’ * * * and stare
decisis is one means of advancing that goal.” Farmers Ins. Co. v. Mowry, 350 Or
686, 698, 261 P3d 1 (2011) (second alteration in original; citation omitted).
Cite as 353 Or 129 (2013)	163

the rule of law have if a court can avoid it by refusing to call
it by its right name?
	        I press my point because, in effectively overruling
Hall and Rodgers/Kirkeby, the majority changes the exclu-
sionary rule as Oregon has known it and, in my view, does
so to the detriment of Oregonians. The majority defends its
decision by saying that Hall’s exploitation test “failed to
give sufficient weight to a defendant’s voluntary consent to
a search * * *.” 353 Or at 149. But as the majority so aptly
explains, whether a defendant’s consent was voluntary is a
question that is distinct from the question of whether the
evidence that the police obtained was a product of their ille-
gal conduct. Id. at 12.
	        The aim of the Oregon exclusionary rule is to
restore a defendant to the same position as if “the govern-
ment’s officers had stayed within the law.” State v. Davis,
295 Or 227, 234, 666 P2d 802 (1983). Before today, this court
had “rejected the view that the Oregon exclusionary rule
is predicated upon a deterrence rationale” and instead had
adopted a rule “that serves to vindicate a defendant’s per-
sonal rights. In other words, the right to be free from unrea-
sonable searches and seizures under Article I, section 9, also
encompasses the right to be free from the use of evidence
obtained in violation of that state constitutional provision.”
Hall, 339 Or at 24 (citing State v. Davis, 313 Or 246, 249,
834 P2d 1008 (1992)).
	       The majority’s new test focuses not on whether the
police violated a defendant’s constitutional right against
unreasonable seizure and obtained evidence as a result, but
on whether the police also engaged in purposeful or addi-
tional misconduct that may have affected the defendant’s
decision to consent. The majority justifies consideration of
those factors by explaining that
   “police misconduct that is intended to gain a defendant’s
   consent may well be more likely to substantially affect
   that defendant’s decision to consent. Likewise, particularly
   egregious police misconduct—such as excessive use of force
   in unlawfully seizing a defendant—is more likely to affect
   the defendant’s decision to consent than more restrained
   police behavior.”
164	                                     State v. Hemenway

353 Or at 147. I do not quarrel with that reasoning; I ques-
tion its role in the exploitation analysis.
	        When the police unconstitutionally stop or detain a
defendant and act with an illegal purpose or engage in egre-
gious misconduct, a court must consider whether the defen-
dant’s subsequent consent to search is voluntary. Police
actions that deprive a defendant of constitutional rights or
exert unconstitutional coercion may render a defendant’s
consent involuntary. See State v. Kennedy, 290 Or 493, 624
P2d 99 (1981). But, as the majority acknowledges, even
when a defendant’s consent is voluntary, evidence that is
the product of illegal police misconduct is subject to sup-
pression. 353 Or at 140. In this case, the majority’s decision
that the evidence that the police obtained was admissible
because the police actions, although illegal, were not egre-
gious and may not have affected defendant’s decision to con-
sent may reflect an accurate assessment that defendant’s
consent was voluntary in the sense that it was an act of free
will. However, the majority fails to grapple sufficiently with
whether defendant’s consent was, nevertheless, a product of
the officer’s unlawful stop and detention. Hall and Rodgers/
Kirkeby recognize the reality of the power imbalance that
exists when the police use their authority to unlawfully stop
and detain a person and then, while continuing to exert that
authority, seek consent to search. The majority conflates the
voluntariness and exploitation prongs of the analysis and
wrongly fails to give sufficient effect to the constitutional
mandate of the exclusionary rule in Oregon—that courts
apply it to vindicate a defendant’s personal right against
unconstitutional seizure. Hall, 339 Or at 24; Davis, 313 Or
at 249.
	        The majority’s new test also upends the Oregon
exclusionary rule in other ways. Before today, the inquiry
that the court used to decide whether police had exploited
an illegality and obtained evidence that must be suppressed
was an objective, logical one that did not require analysis
of the subjective motivation of the police in seeking a defen-
dant’s consent to search or of the subjective effect that the
police misconduct had on a defendant’s decision to give
consent. By adopting an exploitation test that now permits
or even requires both, the majority shifts away from the
Cite as 353 Or 129 (2013)	165

objectivity and logic of the exploitation prong of the analysis
and imposes a test that is both more intrusive and less clear.
It may seem right to instruct courts and officers to consider
“the totality of the circumstances,” but police officers and
trial courts endeavor to make decisions that this court will
uphold and are entitled to more guidance than the majority
gives. If the facts unfold as they did in Hall and Rodgers/
Kirkeby, must the trial court suppress the evidence as this
court required in those cases, or, considering the fact that
the police were polite, must the trial court now admit the
evidence?
	         Until today, certain consequences followed when the
police illegally and unconstitutionally stopped citizens with-
out probable cause or reasonable suspicion and, while con-
tinuing to unlawfully detain them, asked for and obtained
their consent to search. Today, the majority has eliminated,
or at least substantially altered, the certainty that the viola-
tion of a defendant’s constitutional rights will be vindicated.
If the majority had acknowledged and attempted to justify
its abandonment of precedent, I might be more satisfied as
a judge, but I do not know that I would be more comfortable
as a citizen.
	       The majority is bold, and it is deft. In my view, the
majority is also wrong. I respectfully dissent.
	        De Muniz, Senior Judge, Justice pro tempore, joins
in this dissent.
