dissenting.
[¶ 17] I dissent from the majority because I believe that Guscette was illegally detained and that the trial court did not appropriately consider the issue of consent obtained after an illegal detention. I would reverse and remand for the trial court to properly apply the law.
I
[¶ 18] The record of this case establishes that Officer Olson stopped Guscette for a broken taillight. He approached the driver’s door and asked Guscette for her North Dakota driver’s license. He proceeded back to his squad car where he ran a driver’s license check to confirm that Guscette did have a valid driver’s license. Upon checking the in-house computer, he saw that Guscette had prior involvements with drugs and paraphernalia.
[¶ 19] Officer Olson walked back to Guscette’s vehicle and asked her for proof of insurance. Guscette had difficulty locating the current proof of insurance, and the officer did not require her to produce it. Next, Officer Olson asked Guscette if she knew the whereabouts of Corey Mock. Corey Mock was a roommate of Guscette, whom she knew law enforcement had been trying to locate. Guscette told the officer she did not know the whereabouts of Corey Mock.
[¶ 20] Officer Olson then asked Gus-cette to step out of her vehicle to visit with him. She agreed and got out of her vehicle. Officer Olson again asked Guscette if she knew the whereabouts of Corey Mock. She again stated she did not know. The officer then asked her about contact she had with Officer Erbes concerning a drug charge. Guscette said she still had to go to court on that matter. The record is unclear whether, at this point or just before questioning her about her drug charge, the officer told Guscette that he was going to give her a verbal warning and handed back her identification.
[¶21] The trial court found, and the majority agrees, that the officer then told Guscette she was free to leave. Neither Officer Olson nor Guscette testified to this fact at the suppression hearing. The only place this fact can be found is in Officer Olson’s report of the arrest which was referred to in the State’s response to the motion to suppress.
[¶ 22] Before Guscette was able to get back into her car, Officer Olson asked her if she had any weapons, needles, knives, or anything else illegal in her vehicle. She answered no. He then asked her if he could search her vehicle. She said yes.
II
[¶23] I believe that continuing to detain Guscette for questioning after her license and registration had been checked was a violation of the Fourth Amendment. See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994) (holding that continuing to detain defendants after their licenses and registration had been checked was a violation of the Fourth Amendment).
[¶ 24] “To justify a greater intrusion unrelated to the traffic stop, the totality of circumstances known to the officer must meet the requisite level of reasonable sus*133picion under Terry.” United States v. Ramos, 20 F.3d 348, 352 (8th Cir.1994), rev’d on other grounds, 42 F.3d 1160 (8th Cir. 1994). After a lawful stop, an officer is entitled to order the driver and the passenger out of the vehicle to -check the identity and validity of the license of the driver, to check the identity of the passenger, to request the driver sit in the patrol car, to ask the driver about his destination and purpose, to ascertain whether there are outstanding arrest warrants on the driver or passenger, and to establish whether the vehicle is stolen or otherwise involved in violations of the law. Ramos, 20 F.3d at 353 (Beam, J., dissenting) (citations omitted); United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). The United States Court of Appeals for the Eighth Circuit has further stated:
If reasonably related questions raise inconsistent answers, or if the licenses and registration do not check out, a trooper’s suspicions may be raised so as to enable him to expand the scope of the stop and ask additional, more intrusive, questions. If, however, no answers are inconsistent and no objective circumstances supply the trooper with additional suspicion, the trooper should not expand the scope of the stop.
Ramos, at 1163.
[¶25] In my opinion, Officer Olson’s extended detention after completing the traffic stop was an unreasonable seizure and violated the Fourth Amendment. Officer Olson conducted a driver’s license and registration check, a check of Gus-cette’s criminal history, and an insurance check. At that point, he had done everything necessary to complete the traffic stop investigation and did not have reasonable or articulable suspicion of further criminal activity.
[¶ 26] Although Officer Olson had all the information he needed to complete the traffic stop investigation, he asked Gus-cette the whereabouts of Corey Mock and then asked her to exit, her vehicle. Once out of her vehicle, Officer Olson pursued his interrogation concerning the whereabouts of Corey Mock, Guscette’s pending drug charge, and the status of the drug charge. Although it is not clear exactly when he returned her identification, gave her a verbal warning, and, supposedly, told her she was free to leave, it was definitely after he asked her to exit her vehicle and after questions about Corey Mock’s ydiere-abouts. The record does not reveal that Officer Olson asked Guscette any questions relevant to the traffic.stop during their conversation outside of her-.vehicle. Officer Olson’s questions were unrelated to the .traffic stop and were unreasonable. He had no justification to expand the scope of <the traffic stop- beyond investigating Guscette for a broken taillight. .
[¶ 27] The State contends, however, following issuance of the verbal warning and return of Guscette’s identification that she could have merely gotten in her car and left. In this case. Officer Olson had just finished interrogating Guscette concerning the whereabouts of her roommate whom law enforcement was trying to locate and possibly about her own drug charge when he told her she was free to leave. Then, in the next breath, he asked if she had any illegal drugs in her vehicle and if he could search it. If Officer Olson told her she was free to leave and then contemporaneously interrogated her about her own drug charges, her consent was the fruit of an illegal detention. See State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). I am of the opinion that at the time of her consent she was either still seized or seized a second time when the officer interrogated her about her own drug charge.
*134III
[¶ 28] If Guseette was still seized or seized a second time, the consent she subsequently gave to search her vehicle was tainted by her illegal detention. The State contends Guseette voluntarily consented to a search of her vehicle after being told she could leave. Our Court has stated the standard for determining the voluntariness of a consent to search includes examining the totality of the circumstances:
“Under a ‘totality of the circumstances’ standard, although the existence or absence of certain factors concerning (1) the characteristics and condition of the accused at the time [he or she] confessed or consented and (2) the details of the setting in which the consent or confession was obtained are significant in deciding voluntariness, no one factor in and of itself is determinative.”
City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151 (quotation omitted). In this case, the trial court concluded, after applying the above standard, Gus-cette’s consent was voluntary. However, this is not the end of the inquiry. See United States v. Becker, 333 F.3d 858, 861 (8th Cir.2003).
A
[¶ 29] In Wong Sun v. United States, the Supreme Court of the United States held that statements made following an illegal detention are not admissible. 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The United States Court of Appeals for the Eighth Circuit has held that the rule announced in Wong Sun applies in circumstances such as in the present case, where evidence is obtained in a search following an illegal detention. Ramos, 42 F.3d at 1164 (stating “[t]he giving of Miranda warnings, followed by the making of a voluntary statement, does not, in and of itself, mandate a statement’s admissibility”) (citing Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).
[¶ 30] The United States Court of Appeals for the Eighth Circuit has held that although a trial court finds a driver, who was illegally detained, subsequently consents voluntarily to a search, that is not the end of the inquiry. Becker, 333 F.3d at 861. Rather, the Court of Appeals concludes a trial court must analyze a second question, whether the consent to search was “sufficiently an act of free will to purge the taint of the preceding illegal detention.” Ramos, 42 F.3d at 1164; see Becker, at 862.
[¶ 31] In determining whether a “consent [to search] was given in circumstances that render it an independent, lawful cause of [the] discovery of [the relevant evidence]” and whether the taint of an illegal detention is purged from the evidence seized, the following factors must be considered:
(1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); see also [United States v.] Moreno, 280 F.3d [898,] 900 [(8th Cir.2002)] (applying the Brown factors).
Becker, 333 F.3d at 861-62 (footnote omitted). The Court of Appeals further stated that a trial court must apply the Brown factors to determine whether a voluntary consent to search retains the taint of the illegal detention. Becker, at 861.
[¶ 32] In Ramos, the United States Court of Appeals for the Eighth Circuit, on a petition for rehearing, held that despite the illegal detention of Ramos, his consent was “sufficiently an act of free will to purge the taint of the preceding illegal detention.” 42 F.3d at 1164. In that case, *135the Court of Appeals noted the officer told the driver, both orally and in writing, that he did not have to sign the consent form. The Court of Appeals further noted such a warning is not required by law; therefore, the fact the officer gave the warning strongly suggested he was not attempting to exploit the traffic stop, but was acting in good faith. Id. The defendant signed a consent form, and the Court of Appeals concluded, “[w]hat happened here, really, went beyond voluntary consent. It was an affirmative waiver of Salvador Ramos’s Fourth Amendment right to prevent a search of his vehicle.” Id.
[¶ 33] In the present case, there was no written consent form or warning, but there was an intervening circumstance between the illegal detention and the consent to search Guscette’s vehicle. Officer Olson’s report states that he told Guscette at some point, either before or after he interrogated her about her own drug charges, that she was free to leave before he asked if he could search her car. Officer Olson said Guscette could leave, and in the next breath, he asked her if there were drugs in her vehicle and if he could search it. Both of those questions were asked before Gus-cette could even get back into her car and followed on the heels of illegal questioning outside her vehicle concerning the whereabouts of her roommate whom law enforcement was trying to locate and her own pending drug charge. Professor La-fave recognizes that there exists now a pervasive police practice of using traffic stops plus purported consent of those stopped as a means of conducting vehicle searches to find drugs. 3 Wayne R. La-fave, Search and Seizures § 8.2 at 169 (3d ed. & Supp.2004). He notes “that traditionally the notion of voluntariness [of consent] ‘has reflected an accommodation’ of two competing interests: (i) the ‘need for ... a tool for the effective enforcement of criminal laws’; and (ii) ‘society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness.’ ” Id. at 169 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Professor Lafave concludes: “If courts sense an element of unfairness in particular consent strategies employed by the police, that itself might prompt a more critical assessment of police claims of consent in that setting.” Id.
[¶ 34] Because the trial court failed to recognize Guscette’s illegal detention, it did not address the issue of whether Gus-cette’s consent to search her car was “sufficiently an act of free will to purge the primary taint.” The trial court did discuss the intervening factor that Officer Olson told Guscette she was free to leave. However, I conclude the trial court erred by failing to analyze the other two Brown factors which it should have considered when determining if the taint of Guscette’s illegal detention was purged.
[¶ 35] Guscette’s motion to suppress stated, “[t]his Motion is made and based upon the attached Affidavit of Stephanie Jonell Guscette together with any and all evidence or testimony adduced at the hearing of this matter.” At the suppression hearing, Guscette testified to the following:
Q: Okay. Did you ask him why he was detaining you like that?
A: Nope, I didn’t. I didn’t question it because I thought maybe he was, you know, just, you know, wanted to see if we were doing anything bad. Maybe standing face to face was a better confrontation, you know, to see if, you know, what I was like. And I wasn’t nervous or anything because, you know, I hadn’t been doing anything wrong. And the first thing he had said to me was, he asked me, so, you haven’t seen Corey Mock? And I was like, I said, *136no, I haven’t seen him for several days matter of fact. And then he goes, I see you had a run-in with Officer — I believe it was Erbes, he said, you had a run-in with Officer Erbes. I was — I didn’t know that my charges, you know, from being on bond and my first charge would of been on my, you know, that he could of seen that all ready. And so, I asked him if that was, you know, what I was still was going to Court for. and he—
Q: You had a previous paraphernalia charge, is that right?
A: Yeah.
Q: Okay. And somehow he had got some information—
A: Right.
Q: —that you had something to do with an Officer Erbes, is that correct?
A: Right.
Q: Do you know how he got that information?
A: I’m sure he looked in his computer or something.
Q: Okay. But, nonetheless, that didn’t bother you?
A: Well, I asked him if that was, you know, what I was still going to Court for? And he told me, well yes, it must be. And I was like, well then, yeah — you know, I did have a run-in with Officer Erbes.
Q: Uh-huh.
A: And then he goes — well he goes— considering, you know, the — you know, the — what’s on, you know, in front of me, he goes, can I search your car? And I — he goes can— will you give me consent to search your car? And I said, sure, you know. Then he directed Officer Nelson to ask Andy to get out of the car, which Andy did. And we stood at the back of my car. And I was on the driver’s side of the car standing right at the rear, right by the light, Andy was standing right next to me. And then Officer Nelson was standing, like, right behind us. And he went to — Officer Olson went to my car. And my purse was on the front — was on the front, like, in the middle between the seats and — it’s a fairly large purse — and I seen him go for it right away. And as soon as he grabbed it—
Guscette’s testimony indicates the request to search for contraband was contemporaneous with Officer Olson’s questioning regarding a run-in with Officer Erbes and a drug charge. Under the totality of the circumstances, an inference of coercion or intimidation could be drawn.
[¶ 36] The United States Supreme Court has rejected per-se rules and has emphasized that voluntariness is a fact question to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). On remand from the United States Supreme Court, the Supreme Court of Ohio in Robinette, 685 N.E.2d at 770-71 stated:
“The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police officers to coerce citizens into answering questions that they need not answer, or to allow a search of a vehicle that they are not legally obliged to allow.” Id. [State v. Robinette], 73 Ohio St.3d [650] at 654, 653 N.E.2d [695] at 698 [(1995)].5 When these factors are combined with a police officer’s superior position of authority, any reasonable person would have felt compelled to sub*137mit to the officer’s questioning. While Newsome’s questioning was not expressly coercive, the circumstances surrounding the request to search made the questioning impliedly coercive. Even the state conceded, at oral argument before the United States Supreme Court, that an officer has discretion to issue a ticket rather than a warning to a motorist if the motorist becomes uncooperative. See 1996 WL 587659, at 5 (Official Transcript of Oral Argument). From the totality of the circumstances, it appears that Robinette merely submitted to “a claim of lawful authority” rather than consenting as a voluntary act of free will. Under Royer, this is not sufficient to prove voluntary compliance. [Florida v.] Royer, 460 U.S. [491] at 497, 103 S.Ct. [1319] at 1324, 75 L.Ed.2d [229] at 236 [(1983)].
Robinette, at 770-71. “Other courts have on like or similar facts also concluded that an illegal second seizure occurred after termination of a lawful one, a result not at all inconsistent with the United States Supreme Court’s Robinette decision.” See 4 Wayne R. Lafave, Search and Seizure § 9.3(a) at 49 (3d ed. & Supp. 2004); Id. at 50 n. 107.12-107.13. In Reittinger v. Commonwealth, the Supreme Court of Virginia held that, although Reittinger was told by the deputy he was free to leave after the deputy gave him a verbal warning, the events that transpired immediately thereafter, namely, questioning about drugs in his vehicle and a request for permission to search, “would suggest to a reasonable person that just the opposite was the case.” 260 Va. 232, 532 S.E.2d 25, 28 (2000). The law is clear that an officer cannot exceed the scope of the traffic violation unless there is reasonable and articu-lable suspicion to believe criminal activity is afoot and an illegal detention taints any subsequent consent. Jones, 269 F.3d at 925. The law is also clear that, on the totality of the circumstances, the consent must be found “sufficiently voluntary to purge the taint of [an] illegal detention.” Becker, 333 F.3d at 861.
rv
[¶ 37] I am of the opinion that, when an officer’s queries exceed the scope of the traffic stop without reasonable and articu-lable suspicion of criminal activity, giving a verbal warning and merely uttering “you are free to leave” do not necessarily guarantee a subsequent consent to search is “sufficiently” voluntary to purge the taint of an illegal detention. This is especially true where the illegal detention and consent are integrally connected and contemporaneous and where there have been subtly coercive police questions, which possibly create a vulnerable subjective state in the person who consents.
[¶ 38] I conclude Guscette was illegally detained; therefore, a Fourth Amendment violation occurred. However, because the trial court failed to consider the illegal detention and whether Guscette’s voluntary consent was sufficiently an act of free will to purge the taint of her illegal detention or whether it was the fruit of an illegal detention, I would reverse and remand for the trial court to apply the correct legal standard regarding consent following an illegal detention.
[¶ 39] Therefore, I respectfully dissent.
[¶ 40] MARY MUEHLEN MARING