(dissenting).
[¶ 59.] I join Justice Sabers’ dissent.
[¶ 60.] I also disagree that we should lower the standard of proof required of the State to prove voluntary consent to a war-rantless search.17 Today, the majority reduces the State’s burden of proving voluntary consent from the clear and convincing standard to the preponderance standard. It does so without any compelling reason. The majority gives as reasons (1) conformity with the burden of proof used by the United States Supreme Court and the Eighth Circuit Court of Appeals, (2) conformity with other courts that do not require clear and convincing evidence to prove consent, and (3) consistency with the burden of proof we use in determining voluntariness of confessions. Supra ¶ 13. None of these reasons are compelling.
[¶ 61.] First, historically we have chosen not to follow the federal court’s standard of proof for voluntary consent searches. The United States Supreme Court has expressly applied the preponderance standard since 1974. U.S. v. Mat-lock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. The South Dakota Supreme Court declined in 1977 to apply the same requirement and determined, instead, to require the higher standard of clear and convincing evidence to show voluntary consent to search. State v. Kissner, 252 N.W.2d 330 (S.D.1977). We have continued to use the clear and convincing standard to all consent searches up to the present. State v. Cody, 293 N.W.2d 440 (S.D.1980); State v. Woods, 374 N.W.2d 92 (S.D.1985); State v. Nemeti, 472 N.W.2d 477 (S.D.1991); State v. Zachodni, 466 N.W.2d 624 (S.D.1991); State v. Almond, 511 N.W.2d 572 (S.D. 1994); State v. Fountain, 534 N.W.2d 859 (S.D.1995); State v. Dreps, 1996 SD 142, 558 N.W.2d 339; State v. Benallie, 1997 SD 118, 570 N.W.2d 236; State v. Morato, 2000 SD 149, 619 N.W.2d 655; State v. Guthrie, 2001 SD 61, 627 N.W.2d 401.
[¶ 62.] Second, changing the standard to conform to those jurisdictions that have lower standards is not a compelling reason. That same analysis could justify maintaining the clear and convincing standard since numerous state courts use a “clear and convincing” standard.18 Jurisdictions that *429have maintained the higher burden of proof do so based upon their independent interpretation of their own state’s constitution. One of those jurisdictions, the Texas Court of Criminal Appeals, directly rejected a request to reduce the State’s burden of proof. State v. Ibarra, 953 S.W.2d 242 (Tex.App.1997) (en banc). The Ibarra court construed independently the Texas Constitution to require the higher standard. Specifically, the Ibarra court stated,
although “we need not construe the Texas Constitution differently from the federal constitution, there is simply no getting around the fact that we construe it independently.” Indeed, it seems odd to suggest that the measure of our state constitutional rights stems not from an independent assessment of our constitution but, rather, from the way in which our constitutional provisions are similar to or different from their federal counterparts. So, while Supreme Court analysis of federal constitutional provisions may enlighten' our own constitutional endeavors, we are not bound by those interpretations.
Id. at 244 (internal citation omitted). The Ibarra court reviewed Lego v. Twomey, in which the Supreme Court “decided that the government need only prove the volun-tariness of a confession by a preponderance of the evidence” pointing out that the Supreme Court specifically left the States free to apply a higher standard. 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Lego specifically states,
The States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.
Id. (quoting Lego, 404 U.S. at 489, 92 S.Ct. at 627). The Ibarra court determined that the State failed to offer “any compelling reason to depart from the [clear and convincing] standard of proof’ used to prove “the voluntariness of a consent to search.” Id. at 245. Finally, it concluded that, the preponderance standard “does not satisfy the demands of the Texas Constitution art. I, § 9.”19 Id. at 245.
[¶ 63.] Under similar reasoning, we should not reduce the standard to preponderance. Here, the only reason the State gives for the requested change is that other courts use the preponderance standard. The fact that the federal courts and some state courts have applied the lower standard of proof is not a new legal concept. This has been the situation since we first adopted the clear and convincing standard in 1977. The State offers no compelling reason why this Court should lower the burden of proof after almost three decades of interpreting the South Dakota constitu*430tion and the values it represents as demanding a higher standard of proof from the government in a consent search. We should not abandon our long established State’s constitutional protections.
[¶ 64.] Third, consistency with the standard of proof for voluntariness of a confession is not required and can be distinguished. In State v. Tuttle, we lowered the standard of proof in suppression hearings involving custodial confessions. 2002 SD 94, ¶ 21, 650 N.W.2d 20, 30. The custodial confession in Tuttle involved the waiver of Miranda rights followed by a confession. Id.; See also Cordell v. Weber, 2003 SD 143, 673 N.W.2d 49; State v. Wright, 2004 SD 50, 679 N.W.2d 466. In contrast, this case involves a request to waive a constitutional right against unreasonable search and seizure. Here, the defendant was not arrested or subject to a custodial interrogation, the police officer had no probable cause to suspect criminal activity, and the officer did not give the defendant Miranda warnings or inform him of his right to refuse the request to search. The safeguards of Miranda warnings present in Tuttle are not present here. The chances of overreaching by law enforcement are far greater when the person subjected to the search is not advised of his constitutional rights, of his right to withhold consent or of his waiver of those rights by his consent.
[¶ 65.] Since 1977, we have held the State to the burden of clear and convincing evidence for a consent search. The State does not argue that the standard has been overly burdensome. Neither does the State identify compelling reasons to break with our own precedent and stare decisis. This Court saw fit to interpret the South Dakota Constitution to afford a higher standard of proof on a consent search. The interpretation was sound in 1977 and it is sound today. This Court should maintain the higher burden of proof of clear and convincing evidence for consent searches.
. I agree that Akuba consented under the clear and convincing standard.
. In Search and Seizure, it states, "Many states ... require the higher burden of 'clear and convincing evidence,' and some even proof beyond a reasonable doubt.” John Wesley Hall, Jr., Search and Seizure, § 8.11, 514-15 (3d ed). Further, compared to the preponderance standard, "[a] larger number of states adhere to the 'clear and convincing evidence’ or similarly stated standard of review of voluntariness.” Id. at n 207.
Jurisdictions that apply a clear and convincing or higher standard of proof include the following: Phillips v. State, 446 So.2d 57 (Ala.Crim.App.1983), cert. denied, 467 U.S. 1254, 104 S.Ct. 3541, 82 L.Ed.2d 845 (1984); Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978); Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002) ("clear and positive”); People v. Carlson, 677 P.2d 310 (Colo.1984); Wilson v. State, 470 So.2d 1 (Fla.Dist.Ct.App.1984); Lightford v. State, 90 Nev. 136, 520 P.2d 955 (1974); State v. Mann, 103 N.M. 660, 712 P.2d 6 (N.M.Ct. App.1985); People v. Tinneny, 99 Misc.2d *429962, 417 N.Y.S.2d 840 (Crim.Term 1979); State v. Phillips, 25 N.C.App. 5, 212 S.E.2d 172 (1975); McMorran v. State, 118 Nev. 379, 46 P.3d 81 (2002); State v. Gregorio, 142 N.J.Super. 372, 361 A.2d 586 (1976); Coon v. State, 587 P.2d 1373 (Okla.Crim. App.1978); State v. Glenn, 83 Or.App. 650, 732 P.2d 946 (1987); Armstead v. State, 677 S.W.2d 266 (Tex.Ct.App.1984); State v. Mathe, 35 Wash.App. 572, 668 P.2d 599 (1983); Mississippi requires proof of the voluntariness of consent beyond a reasonable doubt. In Luton v. State, 287 So.2d 269 (Miss.1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2627, 41 L.Ed.2d 225 (1974), the court analogized the voluntariness of a consent to the voluntariness of a confession which requires, in Mississippi, proof of vol-untariness beyond a reasonable doubt. Id. at 272.
. Vernon's Ann.Texas Const. Art. 1, § 9
Sec. 9. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.