State v. Mitchell ( 1978 )

TANZER, J.,

specially concurring in part; concurring in part.

I specially concur in part I, but I believe it is over-analyzed (or, perhaps, under-analyzed, depending upon how one looks at it) in the sense that there is too much said. Oregon v. Mathiason, 429 US 492, 97 S Ct 711, 50 L Ed 2d 714 (1977), is entirely dispositive. There is no need for further citation or discussion and I would say no more beyond the citation to Mathiason. Hence, I concur separately to indicate that I do not necessarily concur in the additional comments of the majority.

Particularly, I understand the necessity for, but do not join, the attempt of the majority to distinguish the troublesome language from its earlier opinion of State v. Paz, 31 Or App 851, 572 P2d 1036 (1977) rev den 282 Or 189 (1978); whatever comfort that language gives defendant, this opinion takes away. These facts illustrate the correctness of my dissent in Paz, to which I resubscribe, which would have led the majority more directly to the same result without the necessity of wiggling away from precedential language.

I concur in part II.