¶1dissenting.
¶2In my opinion, the official involvement in the conversation between defendant and Dunn was too minimal to make Dunn a “police agent” for the purpose of applying the exclusionary rule. Accordingly, I respectfully dissent.
¶3As noted by the majority, whether the exclusionary rule applies to activities of private individuals depends on whether the police were “directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting his activities.” State v. Lowry, 37 Or App 641, 651-52, 588 P2d 623 (1978), rev den 285 Or 195 (1979). Here, what is most indicative of the extent of the police involvement is not what affirmative actions were taken by the police but what they did not do.
¶4First, they did not “initiate” the conversation; Dunn asked to speak to defendant. Second, although a meeting between defendant and Dunn was thereafter arranged, defendant does not contend that Dunn was further encouraged to follow through with his plan or that the police suggested an approach or otherwise controlled Dunn’s participation in the conversation. Neither is it claimed that they listened to the conversation or initiated the subsequent conversation between themselves and defendant. Finally, although Dunn was advised that it would be to his advantage to cooperate with the police, there is no evidence that he initiated the conversation with defendant to better his own position. Rather, he asked if he could talk to defendant “so that things may go a little easier on [defendant].”
¶5Granted, the officers cooperated with Dunn to the extent of making defendant available at other than normal visiting hours. Also, they knew what Dunn intended to do. However, I believe that that falls way short of being the kind of official involvement necessary to transform Dunn into a state agent. I would hold that defendant’s statements were not involuntary and inadmissible.