LINDE, J., dissenting.

The issue that defendant, whose confession was used in convicting him of burglary, wants this court to review is whether a police officer compelled his confession by "threatening" to question and possibly implicate defendant's mother and brother. The Court of Appeals dealt with this claim by stating:

"We presume, therefore, that the officer threatened to question defendant's relatives about the burglary, which he had a right to do. His `threat' did not constitute coercion and does not render defendant's subsequent statements involuntary. See State v. Medenbach, 48 Or. App. 133, 138, 616 P.2d 543 (1980)."

State v. Bates, 92 Or. App. 385, 388, 758 P.2d 421 (1988). I would allow review to examine the proposition that the question of a "compelled" statement is affected by whether the further acts threatened by an officer are within his "right" (more properly, his authority). The proposition is at least doubtful.

In State v. Medenbach, supra, cited by the Court of Appeals, that court found that an officer's threat to arrest a driver who declined to take field sobriety tests was not coercive because the officer had probable cause for making such an arrest. "Therefore, the officer threatened `only to do what the law permitted him to do.' State v. Douglas, 260 Or. 60, 488 P.2d 1366 (1971), cert den 406 U.S. 974 (1972); State v. Bopp, 16 Or. App. 604, 519 P.2d 1277 (1974)." State v. Medenbach, supra, 48 Or App at 138. State v. Bopp, in turn, also claimed to rest on State v. Douglas, supra. But Douglas, which concerned a consent to search, not a confession, given after an officer said that he would seek a search warrant, only quoted the statement of an intermediate California court that, in a similar case, there was no threat to do anything other than what the officers had a legal right to do. State v. Douglas, supra, 260 Or at 75.

This is weak authority for a dubious proposition. The issue in determining whether a confession was compelled or induced by a threat or a promise is not whether the threat or promise was made by someone who legally could make it and carry it out, at least not unless suppression rests on denying the state the fruits of official misconduct. The issue, rather, is whether the alleged threat or promise, lawful or not, had the effect of compelling or inducing the confession. The court therefore should reexamine the proposition that has developed in the opinions of the Court of Appeals. I express no view of the merits of the present case, but I would allow the petition for review.