(dissenting).
[¶26] Trooper Swenson is up to his old tricks, and gets by with them again. See State v. Ramirez, 535 N.W.2d 847 (S.D.1995) (upholding conviction obtained solely because of Swenson’s surreptitious recording of conversation in his patrol ear). I dissented in that case, and I dissent again in this one. Why this court sanctions the unconstitutional behavior of a lone overzealous law enforcement officer is mystifying. To ask most motorists, no matter the infraction, whether they have illegal weapons, drugs, or contraband, is not, according to Swenson, a policy of the South Dakota Highway Patrol; on the contrary, it is Swenson’s policy. It is also Swenson’s practice to seek consent to search most vehicles he stops: “This is pretty common practice or pretty common procedure for me. I ask a lot of people that I stop for consent to search their vehicle because of the drug problem we have running up and down the interstate.”
[¶ 27] In State v. Almond, we reiterated that the State’s burden is to establish by clear and convincing evidence that “the search was the result of free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.” 511 N.W.2d 572, 576 (S.D.1994) (emphasis added) (citation omitted). Swenson’s technique may be subtle, but it constitutes coercion. He places motorists in his patrol car while he issues any citations, even simple warnings. He tells his prey they are free to leave and almost in the same breath he asks about weapons and drugs. Regardless of the response, by his own admission, he asks for consent to search their vehicle. The request may appear an afterthought to the casual observer but it is not. Swenson testified, “I have been trained and advised how to ask for consent to search.”
[¶ 28] The majority states an often repeated proposition: Consent eliminates the *345need for probable cause and a warrant. Does this mean law enforcement is permitted to conduct baseless, random fishing expeditions? In Schneckloth v. Bustamonte, the United States Supreme Court pointed out that the utility of a consent search was evident in “situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search[.]” 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 863 (1973) (listing as further justification for consent searches instances where 1) police seek to investigate suspicious circumstances or 2) to follow up leads developed at the scene of a crime) (emphasis added).6
[¶ 29] The United States Supreme Court has since stated that police may question individuals, absent any basis for suspicion, “as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398-99 (1991). As the Court has noted, whether the defendant felt “free to leave” is not the test:
We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”
Id. at 437, 111 S.Ct. at 2387, 115 L.Ed.2d at 400 (citations omitted). Swenson told Dreps he was “free to go;” however, almost simultaneously he asked: “[A]re you carrying any illegal weapons, drugs or contraband up in the car, are you?” It is doubtful the innocuous “free to go” even registered before the next question, “Do you have a problem with ... Trooper Bard and myself searching the vehicle for those items?” Would a reasonable person have felt “at liberty to ignore [Swenson] and go about his business?” I think not.
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 obligated to allow....
Most people believe that they are validly in a police officer’s custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.
State v. Robinette, 73 Ohio St.3d 650, 653 N.E.2d 695, 698 (1995) (Robinette I), cert. granted, — U.S. —, 116 S.Ct. 1040, 134 L.Ed.2d 187, rev’d on other grounds, — U.S. —, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (Robinette II) (reversing, as not required by the Fourth Amendment of the Federal Constitution, Ohio Supreme Court’s pronouncement of bright-line rule directing officers to make clear the conclusion of a valid' seizure and the beginning of a consensual exchange, but not addressing the validity of Robinette’s detention). Justice Stevens dissented in Robinette II, and he points out that “[a]t no time prior to the search of respondent’s vehicle did any artic-ulable facts give rise to a reasonable suspicion of some separate illegal activity that would justify further detention.... As an objective matter, it inexorably follows that when the officer had completed his task of either arresting or reprimanding the driver of the speeding car, his continued detention *346of that person constituted an illegal seizure. This holding by the Ohio Supreme Court is entirely consistent with federal law.” — U.S. at —, 117 S.Ct. at 426-27 (Stevens, J., dissenting) (citations omitted). As noted previously, supra at note 1, Swenson admits to absolutely no foundation for the continued detention of Dreps.
[¶ 30] “Voluntariness is a question of fact to be determined from all the circumstances!)]” Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d at 875. The defendant’s knowledge of his right to refuse, while not dispositive, is a factor to be taken into account in determining whether consent was voluntarily given. Id. at 249, 93 S.Ct. at 2059, 36 L.Ed.2d at 875. Accord State v. Nemeti, 472 N.W.2d 477, 478 (S.D.1991) (focusing on the “nature of a person’s subjective understanding [of the right to refuse consent]”) (citations omitted) (emphasis added).
[C]itizens who have not been detained immediately prior to being encountered and questioned by police are more apt to realize that they need not respond to a police officer’s questions. A “consensual encounter” immediately following a detention is likely to be imbued with the authoritative aura of the detention.
Robinette I, 653 N.E.2d at 699. It is clear from the transcript of the secretly recorded conversation between Dreps and his co-defendant that Dreps did not understand that he could withhold consent:
Van Ausdale: Just don’t sign a consent to search, I don’t know why we gave them permission to search, what would happen if we don’t. What happens when you don’t? Dreps: I don’t know. I don’t know....
As Justice Stevens noted in his dissent in Robinette II, the officer in that ease obtained consent to approximately 786 searches in one year by employing tactics similar to Swenson’s: “Repeated decisions by ordinary citizens to surrender that [privacy] interest cannot satisfactorily be explained on any hypothesis other than an assumption that they believed they had a legal duty to do so.” Robinette II, — U.S. at —, 117 S.Ct. at 425 (Stevens, J., dissenting).
[¶31] Swenson had a plan in mind the instant he pulled Dreps over. He did not wait for him to produce his license or other papers, but instead left the other trooper by the car while he returned to his patrol ear to activate the hidden tape recorder. He summoned Dreps via his outer audio speaker. As soon as he had issued warning tickets and obtained “consent,” he ordered Dreps to the back seat, where his passenger soon joined him.
[¶ 32] Swenson claims the reason he places motorists in the back seat of his patrol car is for his safety: “And when I’m searching a vehicle with my back to them, I prefer they be in somewhere where I’ve got some time to react if they were to try to attack me in any way.” Once again, this is policy according to Swenson, not the highway patrol: “I want it clear, that is my personal policy. That is not the policy of the highway patrol.” Additionally, it is rather interesting Swenson attributes this “policy” to safety when he admits he did not search either man, even though Dreps told him Van Ausdale had a gun.
[¶ 33] We already know it is part of Swenson’s modus operandi to secretly tape record his quarry:
Most officers use this device to record important information and conversations to prove proper procedures were followed such as Miranda and Implied consent warnings. Not Officer Swenson. He not only conveniently omits to turn on the machine during the time when his conduct might be in question, he secretly activates it to record the conversation in the back seat of the patrol car while he’s searching Ramirez’s car. He claims he did it for his safety — and not to compel or elicit an incriminating response. In my view, that’s why he placed them in custody and that’s why he secretly activated the recording device.
Ramirez, 535 N.W.2d at 851-52 (Sabers, J., dissenting). His colleagues are also aware of his hobby: Bard testified although he didn’t see Swenson turn on the tape recorder, he assumed since it was his practice to do so, that it was probably running while Dreps and *347Van Ausdale were seated in the back of the car.
[¶ 34] The statements the two men made to each other in the patrol car were prompted by actions Swenson undertook with an intent to.elicit a response.7 As I stated in Ramirez, Swenson’s actions should be scrutinized because they constituted an interrogation under Miranda:
It’s also common practice for state troopers to advise people of their Miranda rights when they place them in custody. Not Officer Swenson. Officer Swenson not only placed them in custody, and secretly activated the recording machine, but failed to advise them of their right to remain silent. His search of their car under these circumstances was bound to compel a response from them which he was secretly taping. In State v. Cody, 293 N.W.2d 440, 447 (S.D.1980), we stated:
The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Id. at 852 (Sabers, J., dissenting) (citation omitted).
[¶35] If Swenson is acting outside the scope of established South Dakota Highway Patrol procedures, as he admits he is, that entity should “decide whether this type of activity should be 1) Policy; or 2) prohibited — not only in theory, but in practice.” Id. Until that decision is made, this court should stop sanctioning the coercive, and blatantly unconstitutional, tactics of Trooper Swenson. The “classic admonition” of Boyd v. United States merits repetition:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746, 752 (1886) (quoted in Schneckloth, 412 U.S. at 228-29, 93 S.Ct. at 2048, 36 L.Ed.2d at 863-64) (emphasis added).
. This court has pointed to circumstances which justify an officer’s seeking consent when his suspicion does not give rise to a probable cause search or arrest. See, e.g., Ramirez, 535 N.W.2d at 848 (Trooper Swenson testifies he asked to search Ramirez' car because he perceived "apparent nervousness”); State v. Nemeti, 472 N.W.2d 477, 477 (S.D. 1991) (stopped motorist "nervous and uneasy”). But see id. at 480 (officer's concerns regarding Nemeti’s behavior noth-mg more than “nebulous") (Sabers, J., dissenting); Ramirez, 535 N.W.2d at 851 (noting that Swenson was "going to get his man,” regardless of what his suspicions were based upon) (Sabers, J., dissenting). In this case, Swenson conceded that he had absolutely no reason to believe Dreps was guilty of any criminal behavior and that the only reason his car was searched was because he consented.
. In Ramirez, Swenson testified that he obtained incriminating information in the past by employing the same tactics.