(dissenting).
[¶ 42.] I dissent. It is past time for this Court to act to protect the Fourth Amendment rights of motorists and their passengers from the fishing expeditions of law enforcement officers. Because of the inherently coercive nature of traffic stops and the overreaching by law enforcement in the interest of drug interdiction, we should require that officers have a reasonable suspicion that criminal activity is afoot before they are entitled to request consent to search.
[¶ 43.] Black’s Law Dictionary provides in part that voluntary means: “Unconstrained by interference, unimpelled by another’s influence, spontaneous, acting of oneself. [] Done by design or intention. [ ] Proceeding from the free and unrestrained will of the person. Produced in or by an act of choice. Resulting from *423free choice without compulsion or solicitation. [ ] The word, especially in statutes, often implies knowledge of essential facts.” Black’s Law Dictionary 1575 (6th ed 1990) (internal citations omitted). The State has a burden 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.” State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (emphasis added) (citation omitted).14
[¶ 44.] The cases relied upon by the State and the majority opinion have consistently bent or stretched the word voluntary to the point where it is completely out of shape and without meaning. As in previous cases, by coming to the conclusion that Akuba voluntarily consented to the search, the majority opinion utterly disregards the reality of a traffic stop by a drug interdiction unit on a South Dakota highway.
[¶ 45.] First, the criteria for permissibly detaining a motorist are as endless as the officers imagination. For example, any citizen may be detained for deviating within his lane of travel, crossing over the center line or the fog line, failing to appropriately use a turn signal, exceeding the speed limit, or failing to meet the minimum speed limit. As this case illustrates, one can be detained for exceeding the speed limit by three miles per hour. See e.g. State v. Ballard, 2000 SD 134, ¶ 11, 617 N.W.2d 837, 840-841 (center Une and fog line); State v. DeLaRosa, 2003 SD 18, ¶2, 657 N.W.2d 683, 684 (turn signal). This is so even when the officer has no intention of ticketing the driver for the infraction. Therefore, almost every driver on a South Dakota highway may be detained by a highway patrol officer at any given time.
[¶ 46.] Second, Akuba’s assertions regarding the legality of this stop deserve greater attention than the majority opinion provides. The facts point to racial profiling. Specifically, Oxner saw an African American driver in a vehicle with out-of-state license plates. He turned around, followed the vehicle for two miles and pulled the ■ driver over for exceeding the speed limit by three miles per hour. It is noteworthy that the facts of this case bear a striking resemblance to those in a previous stop executed by Oxner. The dissenting opinion in that case noted,
If there ever was a clear case of racial profiling, it is this case. By affirming these convictions, the majority gives support to police officers in this circuit who seize and search individuals because of their race. [] In the present case, Martinez and Cortez-Gomez were driving through the State of South Dakota in broad daylight when a state trooper traveling in the opposite direction observed their vehicle. The unrefuted evidence is that when the trooper noticed that the driver (Martinez) was Hispanic and that the vehicle he was driving bore California plates, the trooper did a “180” on the highway and proceeded to follow the vehicle. After doing so for approximately five miles, the trooper pulled the vehicle over for momentarily crossing the fog line in violation of South Dakota law.
United States v. Herrera Martinez, 354 F.3d 932, 935 (8th Cir.2004) (Lay, circuit judge, dissenting). As in the present case,
The record' clearly shows that [the defendant’s] driver’s license and registration were in proper order. The record further shows that [the defendant’s] responses to the trooper’s questions regarding his destination and purpose did *424nothing to arouse suspicion. Simply put, the trooper had no reasonable or articulable basis upon which to suspect the Defendants of drug activity.
Id. A racial profile is an insufficient basis upon which to allow a seizure under the Fourth Amendment. To simply state that the Defendant’s argument is “without merit” in the face of clear indications to the contrary is an abdication of this Court’s duty to prevent such overreaching by law enforcement.
[¶ 47.] Third, this Court’s recent decisions regarding the officer’s rights during a traffic stop make clear that the officer has carte blanche authority to extend the traffic stop for the purpose of drug interdiction, contrary to the “free to go rule” of Ballard, 2000 SD 134 at 17, 617 N.W.2d at 842. For example, if an officer requests consent to search and the citizen denies permission, the officer need only bring a canine unit to the scene. The majority of this Court has held, contrary to Terry, that an officer may extend a traffic stop, even after its purpose has been accomplished, and without reasonable suspicion, to bring a drug dog to the scene. DeLa-Rosa, 2003 SD 18, at ¶ 14, 657 N.W.2d at 688. Once the officer brings a dog onto the scene, the matter may be over for the unwitting citizen, for the officer need only decide that his dog “alerted” in order to tear the vehicle apart. Citing our clearly erroneous standard of review, the majority of this Court upheld such a search based on the officer’s assertion that his dog’s breathing pattern changed, despite audio evidence to the contrary. See State v. Chavez, 2003 SD 93, 668 N.W.2d 89. Finally, whatever the officer finds in the vehicle will be held against every passenger of the vehicle under the holding of Wilson, which denies passengers “standing” to contest the search of a motor vehicle. State v. Wilson, 2004 SD 33, 678 N.W.2d 176.
[¶ 48.] It is clear that Akuba would not have had the right to deny permission for the officer to perform a sniff search of his vehicle. However, Akuba was within his rights to deny permission for the officer to search the car without the dog. There is no indication in the record that Akuba had any idea that he could deny such consent. Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875 (1973) (knowledge of the right to deny consent is a factor to be considered in determining voluntariness). This is true of the majority of motorists detained by police officers.
[M]any persons, perhaps most, would view the request of a police officer to make a search as having the force of law.[ ] In the context of motor vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent. Cfi Wesley MacNeil Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling, 74 Tul. LRev 1409, 1465 (2000) (stating that “[psychological studies further confirm that ... there is an almost reflexive impulse to obey an authority figure.”); see also Adrian J. Barrio, Note, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent, 1997 U Ill L Rev 215, 233-40 (discussing psychological studies regarding authority figures).
State v. Carty, 170 N.J. 632, 790 A.2d 903, 910 (2002) (additional citation omitted). This is particularly so in this case where there is no indication whatsoever that Aku-ba realized that he was free to go without *425consenting to the search; a misperception which may have been perpetuated by the officer’s conditional statements indicating Akuba would be “free to go” “if you let me look real quiek[.]” In fact, Akuba was clearly under police control at the time he “consented” to the search. He was in a patrol car, the officer retained his papers, there was a drug dog whining in the seat directly behind him, and the officer’s “request” for consent was less than clear. As the trial court noted in its findings:
Prior to completing his traffic investigation, Oxner advised Defendant that he was a narcotics officer and would have his dog sniff around Defendant’s vehicle. Immediately following the foregoing, he asked if he could “look in the vehicle.” There was no basis to expand the traffic investigation to a search of the vehicle. Defendant was under detention and clearly not free to leave at that time. The sequencing of the “drug dog plan” and “is it okay if I look in the car” is such that reasonable people could and would infer that there was no choice in the matter-that the officer was going to look in the car anyway. Under these circumstances, reasonable people would likely conclude that the look in the car would be the visual inspection as the officer accompanied the dog and not a search including the opening of trunks, glove compartments, luggage, purses, looking under seats etc.
The majority opinion disregards the trial courts findings of fact to come to the conclusion that Akuba consented. The basis for this appellate finding of fact is apparently that Akuba said “um-hmm” three times. However, our legal standard for determining whether consent was voluntary is whether “the search was the result of free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied.” Almond, 511 N.W.2d at 574 (citation omitted). The Constitution of the United States and the State of South Dakota prohibit unreasonable searches and seizures. Coercing consent to search in these circumstances constitutes an unreasonable search and seizure as prohibited by the constitutions.
[¶ 49.] The fact that a person verbally agreed to a search is not proof positive that they legally consented to a search. In this ease, the fact finder, whose findings are to be overturned only if clearly erroneous, found no consent.15
[¶ 50.] I have previously noted:
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[J” 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).
State v. Dreps, 1996 SD 142, ¶28, 558 N.W.2d 339, 345 (Sabers, Justice, dissenting). Although the majority opinion directly addresses the question whether an officer must have probable cause to extend a traffic stop to request consent for a search, it does not address the question whether a lower quantum of suspicion is necessary. I urge the Court to require officers to have reasonable suspicion of criminal activity before they are entitled to request permission to search a vehicle.
*426An honest appraisal of the typical traffic stop must come to the conclusion that it is an inherently coercive situation in which very few citizens understand their constitutional protections.
[¶ 51.] In the interest of drug interdiction, police officers are pulling motorists over for minor infractions and coercing consent to search by implying that regardless of consent, a search will be conducted. “Treating all citizens like criminals in order to catch the malefactors among us represents an unwise policy choice, an outlook favoring crime prevention over all of our other values.” Carty, 790 A.2d at 908 (citation omitted). The Court should acknowledge the reality of “consent” searches on South Dakota highways. A citizen pulled over to the side of the road and brought to a trooper’s car would not feel free to terminate the encounter and carry on with their business. See e.g. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389, 400 (1991) (“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.”) (citation omitted). Therefore, the encounter is inherently coercive and an officer should be required to meet a threshold evidentiary standard before “requesting” such consent. See e.g. Carty, 170 N.J. 632, 790 A.2d 903; State v, Quino, 74 Haw. 161, 840 P.2d 358, 364-365 (1992), cert denied, 507 U.S. 1031, 113 S.Ct. 1849, 123 L.Ed.2d 472 (1993). This requirement would impose no undue hardship on officers or the courts for as the New Jersey Supreme Court noted, reasonable suspicion is a “well established constitutional requirement under the Fourth Amendment and the comparable provision of the [state] constitution to determine the reasonableness of police conduct.” Carty, 790 A.2d at 914.
[¶ 52.] This approach would align our jurisprudence with the actual interests underlying the Fourth Amendment. As the Supreme Court has noted, when a court weighs Fourth Amendment reasonableness in the context of traffic stops, the State’s interests are weighed more heavily than the motorists’ interests where the subject matter concerns the privilege of driving on the highways. United States v. Valadez, 267 F.3d 395, 399 (5th Cir.2001) (Garwood, concurring) (citing Michigan Dept, of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (additional citation omitted)). On the other hand, the interests of the motorist are weighed more heavily where the subject matter is “the general interest in crime control.” Id. (citing City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 453, 148 L.Ed.2d 333 (2000)). Drug interdiction falls squarely within “the general interest in crime control,” and therefore this Court should consciously weigh the interests of the presumptively innocent motorist more heavily than the interest of the State.
[¶ 53.] I would affirm the trial court’s grant of Akuba’s motion to suppress. The trial court ruled that the State failed to prove that Akuba had voluntarily consented to the search. The court arrived at that conclusion by reasoning that Officer Oxner improperly expanded the scope of the traffic stop by engaging in “impermis-sibly intrusive” questioning beyond the scope of a routine traffic stop. This conclusion is supported by the requirements underlying Fourth Amendment protections in the context of a traffic stop. As the Eighth Circuit Court has noted, after a valid initial stop, an officer is permitted to “ask any questions reasonably related to the stop.” United States v. Ramos, 42 F.3d 1160,1163 (8th Cir.1994).
*427If reasonably related questions raise inconsistent answers, or if the licenses and registration do not check out, a[n] [officer’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 [officer] with additional suspicion, the [officer] should not expand the scope of the stop.
Id. Officer Oxner found no objective circumstances to provide him with the additional suspicion necessary to expand the scope of the stop beyond its original justification. Therefore, his expansion of the scope of the stop to request consent to search went beyond the mandates of Terry v. Ohio, which requires that the officer’s action be “justified at its inception” and that the action be “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 906 (1968). The circumstance that “justified” Oxner’s interference was Akuba’s traveling at three miles per hour over the speed limit. There is no relation between this minor traffic violation and a full blown search of Akuba’s vehicle other than the officer’s desire to garner consent to search. Furthermore, the officer was bound by the requirement that his intrusion be “temporary and last no longer than is necessary to effectuate the purpose of the stop.” Finally, “the [ ] methods employed should be the least intrusive means reasonably available [to the officer] to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d, 229, 238 (1983). Although Oxner had a canine unit immediately available to him, he chose the much more intrusive alternative of requesting a full search of the vehicle, including the interior, trunk and the baggage in the trunk. The trial court did not err in its determination that Ox-ner’s actions were “impermissibly intrusive.”
[¶54.] Oxner’s extended detention of Akuba beyond the time the purpose of the traffic stop concluded and when the officer had no reasonable suspicion of criminal activity was unlawful. Therefore, even assuming that Akuba voluntarily consented to the search, since the involuntarily obtained consent created an unlawful seizure, the exclusionary rule requires suppression of the evidence obtained by the officer. Id.
[¶ 55.] The trial court ultimately concluded that the illegal detention, coupled with the “threat” to use the drug dog, coerced Akuba’s consent and rendered it involuntary as a matter of law. As indicated, I agree with the trial court for the most part and would affirm the motion to suppress.
[¶ 56.] At the very least, in deciding whether consent was voluntary, courts should require the prosecution to prove voluntariness by a preponderance of the evidence. Here, the trial court held that the State failed in their burden of proving voluntary consent whether the burden was “by a preponderance of the evidence” or by “clear and convincing evidence.” We should affirm the trial court.
[¶ 57.] The judiciary is the only barrier to police violations of our citizens’ constitutional rights. We should act to ensure that the basic protections of the Fourth Amendment are afforded to all citizens; even those who drive or ride in vehicles.
[¶ 58.] I would affirm the trial court’s holding that the illegality of the consent to search carries over to Paul. In that respect, I disagree with the majority opinion’s decision to reverse on standing. I particularly disagree with the proposition *428that the State may claim on the one hand that the defendant had sufficient control over the trunk to be in possession of the drugs but on the other hand, she had insufficient control over the trunk to have standing to protest the search.16 Clearly, under these circumstances, she would have a reasonable expectation of privacy.
. I join Justice Meierhenry's special writing to the extent that it holds we should maintain the clear and convincing evidence rule for consent to search.
. It is hard to resist the conclusion that the deference normally given to the fact finder does not apply when it would work against a position of the State. See Chavez, 2003 SD 93, 668 N.W.2d 89.
. In this regard, I would urge the members of this Court to hold that the South Dakota constitution provides greater protection to a motorist than the federal constitution. Allowing such prosecutorial contradiction is fundamentally unfair and lacks any basis in common sense.