[17]*17EDMONDS, J.
The state appeals the trial court’s pretrial order suppressing evidence of a controlled substance that a state police officer discovered during the search of defendant’s vehicle. The trial court concluded that the officer’s request for consent to the search violated ORS 810.410(3)(b) (1995), as construed in State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995) and State v. Hadley, 146 Or App 166, 932 P2d 1194 (1997). The state argues that the search did not violate ORS 810.410(3)(b) and that even if it did, suppression is no longer proper under ORS 136.432 (section 1 of Senate Bill 936) (1997). We do not reach the state’s first argument because we agree that ORS 136.432 controls. Accordingly, we reverse and remand.
Defendant was stopped by a police officer for a traffic infraction. After the stop, the officer turned off his overhead lights, returned defendant’s identification documents to him, issued a citation and told him “adiós.” At that time, defendant was in the driver’s seat of his vehicle, the car door was closed, and the engine was running. The officer’s body did not impede defendant from leaving. Defendant “reached down and was starting to move the gear shift selector” when the officer recontacted him and asked if he could talk with him. Approximately seven seconds had elapsed. Defendant agreed to talk to the officer and got out of his car. The ensuing conversation led to defendant’s consent to a search of his car and the subsequent discovery of the controlled substances under the back seat of the car that are the subject of the trial court’s order on appeal.
After the trial court made its decision and after the briefing and argument in this case occurred, the Supreme Court issued its opinion in State v. Toevs, 327 Or 525, 964 P2d 1007 (1998). In Toevs, the court held that there must be a fact-specific inquiry under ORS 810.410(3)(b)1 to determine [18]*18when a traffic stop has ended and whether the officer is permitted to seek permission to search. Under Toevs, a trial court must determine whether under the totality of the circumstances, there is a continuing detention at the time of the request for consent to search. The inquiry is in two parts (1) whether the defendant subjectively believes that the officer has significantly restricted or interfered with his liberty or freedom of movement and (2) whether the motorist’s belief is objectively reasonable under the circumstances.
In this case, we need not remand to the trial court for a determination under Toevs. The trial court entered its order suppressing the evidence on May 19, 1997. Senate Bill 936 became effective on June 12, 1997, but its provisions apply to all criminal actions pending on or commenced after December 5, 1996. Oregon Laws 1997, ch 313 § 38. The indictment in this matter was filed on March 21,1996, and it was pending on December 5, 1996. Consequently, ORS 136.432 is applicable.
1, 2. Defendant argues that the state’s argument under ORS 136.432 was not preserved below to the trial court and therefore should not be considered by this court under ORAP 5.45(2).2 The purpose underlying ORAP 5.45(2) is that the preservation of an issue permits a trial court to understand and correct any error and to avoid the necessity of appeal. State v. Brown, 310 Or 347, 356, 800 P2d 259 (1990). Regarding the issue of preservation, the court in State v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988) commented:
“* * * We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 369 n 12, 723 P2d 298 (1986). The first ordinarily is essential, the second less so, and third least. Thus, when a potential constitutional violation is involved, the parties’ omission of a dispositive source or argument of ordinary law cannot compel a court to a needless constitutional decision. See State v. [19]*19Kennedy, 295 Or 260, 267, 666 P2d 1316 (1983). Of course, it is important to efficient judicial procedures that the positions of the parties be clearly presented to the initial tribunal and on appeal. See, e.g, Shields v. Campbell, 277 Or 71, 77-78, 559 P2d 1275 (1977). But an equally important justification for requiring preservation of claims of error, consistent with the directive to administer justice ‘completely,’ Or Const, Art I, § 10, is fairness to the adversary parties, and courts can avoid taking parties by surprise by inviting memoranda on inadequately briefed questions. State v. Kennedy, supra, 295 Or at 268. Efficient procedures are instruments for, not obstacles to, deciding the merits, particularly when the alternative is a criminal conviction that lacks a basis in law or in fact.” (Emphasis in original; footnote omitted.)
In this case, the state could not have raised ORS 136.432 to the trial court as authority for its position because the statute had not yet been enacted at the time that the trial court entered its order suppressing the evidence. However, defendant argues, and the dissent agrees, that because Ballot Measure 40 was in effect at that time, the state was required to make an argument under Measure 40 in order to preserve an argument under ORS 136.432 on appeal. It is correct that the provisions of ORS 136.432 are substantially identical to a provision of Measure 40. However, Measure 40 was subsequently declared unconstitutional on an unrelated ground in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998).
We disagree that defendant’s argument should be adopted as a proper application of ORAP 5.45(2). The reasons are three-fold: First, ORAP 5.45 is a procedural rule and should not be used as an obstacle to the deciding of the merits of an issue when the purpose of the rule is not farthered. Here, there was no issue under ORS 136.432 that could have been presented to the trial court to allow it to correct itself because at the time of the trial court ruling, ORS 136.432 had not been enacted.3 Second, the intent of the legislature that ORS 136.432
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[17]*17EDMONDS, J.
The state appeals the trial court’s pretrial order suppressing evidence of a controlled substance that a state police officer discovered during the search of defendant’s vehicle. The trial court concluded that the officer’s request for consent to the search violated ORS 810.410(3)(b) (1995), as construed in State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995) and State v. Hadley, 146 Or App 166, 932 P2d 1194 (1997). The state argues that the search did not violate ORS 810.410(3)(b) and that even if it did, suppression is no longer proper under ORS 136.432 (section 1 of Senate Bill 936) (1997). We do not reach the state’s first argument because we agree that ORS 136.432 controls. Accordingly, we reverse and remand.
Defendant was stopped by a police officer for a traffic infraction. After the stop, the officer turned off his overhead lights, returned defendant’s identification documents to him, issued a citation and told him “adiós.” At that time, defendant was in the driver’s seat of his vehicle, the car door was closed, and the engine was running. The officer’s body did not impede defendant from leaving. Defendant “reached down and was starting to move the gear shift selector” when the officer recontacted him and asked if he could talk with him. Approximately seven seconds had elapsed. Defendant agreed to talk to the officer and got out of his car. The ensuing conversation led to defendant’s consent to a search of his car and the subsequent discovery of the controlled substances under the back seat of the car that are the subject of the trial court’s order on appeal.
After the trial court made its decision and after the briefing and argument in this case occurred, the Supreme Court issued its opinion in State v. Toevs, 327 Or 525, 964 P2d 1007 (1998). In Toevs, the court held that there must be a fact-specific inquiry under ORS 810.410(3)(b)1 to determine [18]*18when a traffic stop has ended and whether the officer is permitted to seek permission to search. Under Toevs, a trial court must determine whether under the totality of the circumstances, there is a continuing detention at the time of the request for consent to search. The inquiry is in two parts (1) whether the defendant subjectively believes that the officer has significantly restricted or interfered with his liberty or freedom of movement and (2) whether the motorist’s belief is objectively reasonable under the circumstances.
In this case, we need not remand to the trial court for a determination under Toevs. The trial court entered its order suppressing the evidence on May 19, 1997. Senate Bill 936 became effective on June 12, 1997, but its provisions apply to all criminal actions pending on or commenced after December 5, 1996. Oregon Laws 1997, ch 313 § 38. The indictment in this matter was filed on March 21,1996, and it was pending on December 5, 1996. Consequently, ORS 136.432 is applicable.
1, 2. Defendant argues that the state’s argument under ORS 136.432 was not preserved below to the trial court and therefore should not be considered by this court under ORAP 5.45(2).2 The purpose underlying ORAP 5.45(2) is that the preservation of an issue permits a trial court to understand and correct any error and to avoid the necessity of appeal. State v. Brown, 310 Or 347, 356, 800 P2d 259 (1990). Regarding the issue of preservation, the court in State v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988) commented:
“* * * We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 369 n 12, 723 P2d 298 (1986). The first ordinarily is essential, the second less so, and third least. Thus, when a potential constitutional violation is involved, the parties’ omission of a dispositive source or argument of ordinary law cannot compel a court to a needless constitutional decision. See State v. [19]*19Kennedy, 295 Or 260, 267, 666 P2d 1316 (1983). Of course, it is important to efficient judicial procedures that the positions of the parties be clearly presented to the initial tribunal and on appeal. See, e.g, Shields v. Campbell, 277 Or 71, 77-78, 559 P2d 1275 (1977). But an equally important justification for requiring preservation of claims of error, consistent with the directive to administer justice ‘completely,’ Or Const, Art I, § 10, is fairness to the adversary parties, and courts can avoid taking parties by surprise by inviting memoranda on inadequately briefed questions. State v. Kennedy, supra, 295 Or at 268. Efficient procedures are instruments for, not obstacles to, deciding the merits, particularly when the alternative is a criminal conviction that lacks a basis in law or in fact.” (Emphasis in original; footnote omitted.)
In this case, the state could not have raised ORS 136.432 to the trial court as authority for its position because the statute had not yet been enacted at the time that the trial court entered its order suppressing the evidence. However, defendant argues, and the dissent agrees, that because Ballot Measure 40 was in effect at that time, the state was required to make an argument under Measure 40 in order to preserve an argument under ORS 136.432 on appeal. It is correct that the provisions of ORS 136.432 are substantially identical to a provision of Measure 40. However, Measure 40 was subsequently declared unconstitutional on an unrelated ground in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998).
We disagree that defendant’s argument should be adopted as a proper application of ORAP 5.45(2). The reasons are three-fold: First, ORAP 5.45 is a procedural rule and should not be used as an obstacle to the deciding of the merits of an issue when the purpose of the rule is not farthered. Here, there was no issue under ORS 136.432 that could have been presented to the trial court to allow it to correct itself because at the time of the trial court ruling, ORS 136.432 had not been enacted.3 Second, the intent of the legislature that ORS 136.432 be applied to pending cases is clear. That intent would be negated by the adoption of defendant’s argument. It [20]*20is a novel concept that in order to preserve an issue under one law, an issue must be raised under another. When the legislature’s intent is so clear, it should not be defeated by the unprecedented extension of a procedural rule. Finally, Measure 40 was unconstitutional ab initio and a legal nullity. It is incongruous to require a party to preserve an issue under a law that had no legal effect. Had the argument been made under Measure 40, the trial court would have been correct in rejecting it.
Section 1, which is now ORS 136.432, provides:
“A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:
“(1) The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of hearsay; or
“(3) The rights of the press.”
Under ORS 136.432, it is now error to exclude evidence obtained in violation of ORS 810.410(3)(b) unless exclusion is required under the exceptions to the statute.
In response to ORS 136.432, defendant makes a number of constitutional attacks, including that the statute constitutes ex post facto legislation in violation of Article I, section 21, of the Oregon Constitution, and Article I, section 1, of the United States Constitution, that it violates the single subject requirement for legislation contained in Article IV, section 20, of the Oregon Constitution, and that the warrant-less search and seizure violated Article I, section 9, of the Oregon Constitution. We rejected defendant’s ex post facto and single subject arguments in State v. Fugate, 154 Or App 643, 963 P2d 686, modified 156 Or App 609, 969 P2d 395 (1998).
As to defendant’s search and seizure rights under the Fourth Amendment and Article I, section 9, defendant contends on appeal that any detention after the traffic stop had ended must be justifiable on other grounds and that at no [21]*21time before the search did any articulable facts give rise to a reasonable suspicion of an illegal activity that would justify further detention. However, there is no evidence in this record that suggests that a new detention4 in a constitutional sense occurred when the officer recontacted defendant. In State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991), the court distinguished mere conversations or noncoercive encounters that involve no restraint of liberty from detentions that are a type of seizure that occur when an officer temporarily restrains a person’s liberty or freedom of movement. Only the latter must be justified by reasonable suspicion of criminal activity. Thus, officers are entitled to engage in non-offensive contact with private citizens that is akin to acceptable and ordinary social intercourse without implicating the Fourth Amendment or Article I, section 9. Here, the officer testified:
“[I] advised the defendant the problem with narcotics trafficking that we had and asked if we could check his vehicle for that, advised him he was being tape recorded. Showed him a consent to search form and asked if he would — could read that and I believe Detective Bennett asked if he had read it in English or Spanish which he indicated that he could. He spent some time reviewing the document, reading it apparently, and then he did sign it.”
There is nothing in the description of the second contact that gives rise to a conclusion that the officer significantly restricted or interfered with defendant’s liberty or freedom of movement so as to constitute a seizure.
In summary, ORS 136.432, although enacted after the trial court ruled, is applicable to this case. Any statutory violation under ORS 810.410(3)(b) is not a proper ground for suppression of the evidence that was discovered as a result of the consensual search and seizure. Moreover, nothing occurred in the second contact between the officer and defendant that significantly restricted or interfered with his liberty or freedom of movement. The evidence is uncontradicted [22]*22that he voluntarily consented to have the second contact with the officers and that he granted his consent to search. Under the circumstances it was error to suppress the evidence of the controlled substance.
Reversed and remanded.