with whom Judges JONES, MOORE, and COLE join, dissenting.
We have here the simple question of whether there are limits on detentions and searches based on reasonable suspicion. Can law enforcement officers extend a detention and increase the extent of-their search until they find conclusive evidence of wrongdoing and elicit a consent from a detainee? The en banc majority opinion permits such activity by law enforcement officers. I believe the limits must be more sharply drawn. When discussing searches based on reasonable suspicion, we are dealing with a lesser level of Fourth Amendment protection than that provided by the probable cause standard. Previous cases have emphasized the importance of limiting searches based on mere reasonable suspicion, whereas the en banc majority has expanded the ambit of searches based on reasonable suspicion. I respectfully dissent because I do not wish to erode the Fourth Amendment’s protections further.
Defendant James Erwin, Jr., is not a sympathetic character. He has a 'lengthy criminal record that includes several drug offenses. The police found a kilogram of cocaine in his car. Nonetheless, his Fourth Amendment rights were violated, and the standard the en banc majority sets here will provide the opportunity for law enforcement officers to violate Fourth Amendment rights in the future. This dissent is not about *826setting drug dealers free; it is about using the proper methods under the Fourth Amendment in apprehending them. The next citizen whose Fourth Amendment rights are violated to the extent that Erwin’s rights were impinged is not likely to be carrying a kilogram of cocaine, but he will feel the same lashing injustice of an unconstitutional search.
The touchstone for judging searches and seizures of this nature is reasonableness, and the Supreme Court sets out the test in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “[I]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 19-20, 88 S.Ct. 1868. The stop in this case is analogous to a Terry stop. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). I take issue not with whether the stop was initially justified, but rather with the officers’ extension of the search beyond its allowable scope.
I.
I will not go into an extensive rendition of the facts because the en banc majority already has done so, but I will highlight those facts germane to the scope of the search. On July 31, 1992, Livingston County Deputy Sheriff Jeff Wagner heard a police radio call for a possibly drunk and reckless driver. There was no indication in the radio call of suspicion of drug trafficking or possession of narcotics. Erwin and his vehicle matched the broadcast description, and Wagner approached Erwin at a truck stop in response to the call. Wagner testified that Erwin merely looked “nervous.” In his contemporaneous report, Wagner had described Erwin as just, “somewhat nervous.” Wagner did not say at what point he determined that Erwin was not intoxicated, but Wagner gave no indication that he ever thought Erwin was intoxicated. Wagner testified in the suppression hearing that “I didn’t smell an odor at that particular time,” and that he did not observe that Erwin had glazed eyes, slurred speech, dilated pupils, or any other indicia of intoxication.
Livingston County Sheriff Deputy Michael Lawry arrived on the scene while deputy Wagner was running a warrant and license check. Deputy Lawry gave no indication that he ever thought Erwin was drunk. “Alcohol definitely not,” Deputy Lawry testified at the suppression hearing. “I didn’t smell any alcohol on him, he didn’t exhibit any characteristics.” Deputy Lawry also quickly realized Erwin was not intoxicated with controlled substances: “[H]e was very cognizant of what was going on and aware of what was happening.” Deputy Lawry admitted that he realized Erwin was not intoxicated with controlled substances “upon approach and observation of him, yes.” Neither officer performed a roadside intoxication test. Deputy Lawry nonetheless continued to detain Erwin and eventually gained Erwin’s consent for a car search.
II.
The nearly instantaneous realization that Erwin was not intoxicated should have ended the encounter, but it did not. Ultimately, the chain of evidence progressed from observance of Erwin’s nervous demeanor to the sighting of a cellular phone, mirror, and blackhead remover in the car to the discovery of a pager and nearly a thousand dollars worth of cash and food stamps in Erwin’s pocket to the discovery of cocaine somewhere in the rear of the car. The chain should have been nipped long before the discovery of the cocaine.
The brevity and limited nature of Terry-type stops have been affirmed repeatedly. See, e.g., United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994). In Tert'y the Supreme Court simultaneously created the possibility for limited searches based on reasonable suspicion and limited the application and scope of such searches. “The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S.Ct. 1868 (internal quotation marks omitted). “[Ujnless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” Berkemer, 468 U.S. at 439-40, 104 S.Ct. 3138. Erwin, however, *827was detained until the officers did have probable cause to arrest him.
Erwin’s demeanor and physical condition quickly allayed any concerns the law enforcement officers may have had regarding his inebriation. Once the possibility of inebriation was disproven, as it quickly was, there was no support for a continuing and more intrusive search. Given that Deputy Wagner never performed a roadside sobriety test and never seemed seriously to question Erwin’s sobriety, the point at which his suspicions were put to rest would appear to have been very early in the chain of events — before Deputy Lawry even arrived. At that point, all Deputy Wagner knew was that Erwin appeared “nervous” and that he was wearing some flashy jewelry. “[NJervousness is generally included as one of several grounds for finding reasonable suspicion and not a ground sufficient in and of itself.” United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995). Erwin should have been released, not detained while the deputies managed to cobble together enough incriminating evidence to arrest him.
Everything Deputy Lawry discovered should be factored out of the equation. Erwin had disproven the original justification for the Terry stop, and Deputy Wagner should have released him. “When police actions go beyond checking out the suspicious circumstances that led to the original stop, the detention becomes an arrest that must be supported by probable cause.” Obasa, 15 F.3d at 607. The officers did not have reasonable suspicion to continue them search, let alone probable cause.
III.
I disagree with the en banc majority’s answer to the “second question” — whether consent to search was voluntary — for two reasons. First, I believe there are significant questions whether Erwin’s consent was free and voluntary and unequivocal. In addition, I believe that the combination of the unlawful detention and the nebulous nature of the consent made Erwin’s consent invalid.
The facts of the case seem to indicate that the district court clearly erred in determining that the consent was voluntary. Consent is judged under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “Consent must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion.” United States v. Williams, 754 F.2d 672, 674-75 (6th Cir.1985). Deputy Lawry characterized the consent exchange in this way: “I said: Well, then, you don’t mind if I look around in the car then, do you, or would you? He again responded no.” This is far from an unequivocal consent, particularly when considering that Erwin continued to hide the trunk key in his sock and shoe. Deputy Lawry’s testimony regarding the consent was also far from “clear and positive.” Deputy Lawry conceded that he could not remember the exact words he used to obtain Erwin’s consent, and Lawry obtained no written consent from Erwin. Deputy Wagner testified that “I can’t say, word for word” what Deputy Lawry said in requesting consent. A questionable consent hazily recollected fails to meet constitutional requirements.
Regardless of whether the consent was voluntary, it never would have occurred had the deputies released Erwin when they realized he was not intoxicated. I am not advocating a bright-line rule that any consent given during an illegal detention is invalid. This Court already has rejected such a rule. See United States v. Guimond, 116 F.3d 166, 170-71 (6th Cir.1997). I do believe, however, that this Court must cast a strict eye toward consent given during an illegal detention. I would recommend following the approach advocated by the Tenth Circuit. In United States v. Walker, 933 F.2d 812 (10th Cir.1991), that court put forward the following standard: “If the consent is not sufficiently an act of free will to purge the primary taint of the illegal detention, however, it must be suppressed as ‘fruit of the poisonous tree.’ ” Id. at 817 (quoting United States v. Maez, 872 F.2d 1444, 1453 (10th Cir.1989)). Given its questionable nature, Erwin’s consent was not sufficient to purge the taint of the illegal detention. The cocaine discovered in the search of Erwin’s car should have been suppressed as the fruit of the poisonous tree.
*828rv.
The en banc majority’s position would allow law enforcement officers to bootstrap full-scale searches onto Terry searches. Even if the detainee clearly has not done the act for which he was stopped, the police will find something — nervousness, perhaps; or flashy clothing, possibly; or a general shiftiness — to justify continuing the detention. The en banc majority validates this sort of police action in this case and for future cases. Whether the police eventually do find something incriminating in their extended Terry searches, the civil rights of the guilty and innocent will suffer in the process.
At the point where the call leading to the initial Terry search has been cleared, the officer must have probable cause to continue. Deputies Wagner and Lawry did not in this case. Furthermore, if the officers do illegally extend a Terry stop and subsequently elicit consent to search during their unlawful detention, they should have to meet a higher standard to show that consent was voluntary. They have not done so in this case. “[A] search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” Terry, 392 U.S. at 18, 88 S.Ct. 1868. This was just such a search, and I respectfully dissent from the en banc majority’s decision to allow the fruits of this search into evidence.