(dissenting).
[¶20.] I respectfully dissent. I would reverse the trial court’s denial of the Motion to Suppress. The only issue in this case is whether the trial court’s finding that the defendant voluntarily consented to a search of his vehicle is clearly erroneous. We have consistently applied the standard of review as follows:
Our standard, of review for a trial court’s. grant or denial of a motion to suppress is abuse of discretion. State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42. An abuse of discretion is discretion “exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Gesinger, 1997 SD 6, ¶8, 559 NW.2d 549, 550. Further, it is well settled that, ■
A trial court’s findings' of fact from a suppression hearing must be- upheld unless they are clearly erroneous. This Court’s function under the clearly erroneous standard is to determine whether' the decision of the lower court lacks'the"support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake. has been made. In making this determination, we review the evidence in a light most favorable to the trial court’s decision.
State v. Belmontes, 2000 SD 115, ¶ 9, 615 N.W.2d 634, 637 (internal citations omitted).
*390State v. Hullinger, 2002 SD 83, ¶ 9, 649 N.W.2d 253.4 Based on the record in this case, substantial evidence does not exist to support the trial court’s finding and the trial court abused its discretion by denying the motion to suppress.
[¶ 21.] In determining the basis of the trial court’s decision, we look to its findings. The majority says that “the trial court weighed all the facts to conclude that there was a voluntary consent.” The majority opinion balances on the trial court’s advantage of observing the demeanor of the witnesses. A review of the findings entered by the trial court, however, raises questions as to whether the trial court based its decision on the demeanor of the witnesses. Many of the “findings of fact” are merely renditions of conflicting testimony. The trial court’s findings and conclusions acknowledge the differences between the defendant’s testimony and the officer’s, the variations in the officer’s written documents and his testimony as to the words of consent, and the officer’s denial and then later acknowledgement that he made a statement about drug “interdiction” and department funding to the defendant. The trial court found that the defendant testified that he did not give the officer consent to search. The court also found that the officer testified that the defendant did give him- consent. The trial court does not adopt one or the other as its own finding of fact.
[¶ 22.] The trial court’s contradictory facts do not support a determination that the consent was voluntary, i.e. given freely, intelligently, unequivocally, and specifically. State v. Hanson, 1999 SD 9, ¶ 25, 588 N.W.2d 885, 891. The facts, as recited, actually indicate the defendant’s consent was hesitant and equivocal and that the officer offered several different versions of defendant’s response and different versions of what he told the defendant. The trial court’s findings relevant to voluntary consent are as follows:
6. That the stop, detention, search, or interrogation of the defendant was not audio taped or video taped;
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16. That the defendant observed the officer in uniform, «.in a clearly marked vehicle and that the defendant was placed in the back seat of the patrol vehicle during a portion of the search and that he was prevented from leaving the back seat;
17. That the officer asked if he could search the defendant’s vehicle;
18. That the officer testified at the preliminary hearing that the defendant’s response was “somewhat hesitant and then saying yes that I could search his vehicle and then he asked, if I had smelled something”;
19. That the officer wrote a verbatim account of the defendant’s words of consent in an affidavit in support of a search warrant to conduct a further search of the vehicle; that the affidavit was submitted to 7th Circuit Court Judge Janine Kern on July 2, 2002, and the language of consent included in that affidavit stated, “Um, yeah, why, did you smell something?”;
20. That the officer wrote a purportedly verbatim statement of the defen*391dant’s words of consent in his report dated July 2, 2002, in which he stated the quoted language as “Urn, well, sure, why did you smell something?”;
21. That at the preliminary hearing, the officer testified that the defendant said, ‘Tes, you can search my car;” but when confronted on cross-examination the officer admitted these words of consent were not stated by the defendant;
22. That in testimony at the preliminary hearing the officer denied that he told the defendant that his request to search the car or to use a drug dog was associated with some funding that the police department could receive;
23. That at the evidentiary hearing in this matter, the officer acknowledged on redirect by the State that he did mention to the defendant “that our department likes to see our efforts of drug interdiction and there are opportunities for departments to receive funding for new equipment, any type of equipment, due to those efforts”;
24. That the defendant testified at the evidentiary hearing that his reply to the officer’s inquiry whether he could search the car was “Why, did you smell something?” with no affirmative answer;
25. That the defendant testified that the officer made a comment about the department receiving funding for drug searches then he got out of the patrol car and went to search the defendant’s rental car;
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34. During the course of issuing a warning citation and checking the defendant’s license status, the officer asked for the defendant’s consent to search the vehicle;
35. The defendant voluntarily consented to the search of his vehicle.5
[¶ 23.] The trial court’s statements at the motion hearing and court trial are also inconclusive. The trial court briefly stated on the record at the conclusion of the suppression hearing its finding that “there was an affirmation that the search could continue — could be made.” The trial court stated:
Its sort of incredible frankly for me to believe that if the question was asked and it was never answered, that the defendant would have raised some kind of questions, inquiry, objection, statements, raised an issue of some sort concerning the search being conducted. And therefore the Court finds that there was a request of the officer for the search and there was an affirmation that the search could continue — could be made.
Later, at the court trial the judge added these comments:
The Court has previously ruled on the suppression issues, will again renew its decision on those suppression issues. The Court has found that there was consent by the defendant. I understand the questions of credibility. There’s nothing to find otherwise.
We have previously stated that “whether findings and conclusions are formally entered or orally made on the record, they must be such that there is no room for speculation and conjecture concerning what the trial court found or concluded.” State v. Hartley, 326 N.W.2d 226, 228 (S.D.1982). “It is not our function to make findings or conclusions for the trial court or to surmise what was intended; rather, it is our province to determine if the findings are supported by evidence and if the *392conclusions are warranted by findings.” Id. at 228.
[¶ 24.] Obviously missing from the trial court’s analysis is any reference to the totality of the circumstances. I agree with the majority that a court must look at the totality of the circumstances in determining whether consent to search is free and voluntary. State v. Almond, 511 N.W.2d 572, 573 (S.D.1994). Besides the hesitant statement of the defendant, the only other conceivable factor considered by the trial court was the defendant’s lack of objection to the search. Although the trial court referenced defendant’s lack of objection orally at the end of the motion hearing, lack of objection is not found in the written findings. The court does enter the written finding “that the defendant was placed in the back seat of the patrol vehicle during a portion of the search and that he was prevented from leaving the back seat.” The hearing evidence established that once the defendant responded to the officer’s request to search, he was immediately placed in the back seat of the patrol car. The officer further testified that the back doors were locked and the defendant would not have been able to get out. Under these facts, defendant had no meaningful opportunity to object.
[¶ 25.] The majority notes that the defendant’s age and prior legal experience with the law are additional circumstances supporting voluntary consent. Whether the trial court considered these other factors is not evident from the oral or written findings. The majority also notes the lack of a coercive atmosphere. Here again, the trial court makes no specific finding on whether the atmosphere was or was not coercive. In fact, findings 23 and 25 may actually reflect coerciveness in regard to the officer’s statements about department funding being tied to drug searches. Furthermore, there is no tape of the stop from which a court could discern the atmosphere surrounding the incident or exactly what was said by the officer or the defendant.
[¶ 26.] The State’s burden is to show voluntariness by clear and convincing evidence that “consent was free, intelligent, unequivocal and specific.” State v. Hanson, 1999 SD 9, ¶ 25, 588 N.W.2d 885, 891. Applying our standard of review, and considering “the evidence in a light most favorable to the trial court’s decision”, the trial court’s decision “lacks the support of substantial evidence,” and “considering the entire record,” I am “left with a definite and firm conviction that a mistake has been made.” Hullinger, 2002 SD 83, ¶ 9, 649 N.W.2d 253. The trial court’s findings are not supported by the evidence and the conclusions of law are not warranted by the findings. The trial court’s decision should be reversed.
. The majority diverges somewhat from this standard of review and, instead, cites to a 1996 Fourth Circuit federal case which uses an “implausibility test" for reviewing a trial court's view of the evidence. US v. Lattimore, 87 F.3d 647, 651 (4th Cir.1996) (an en banc decision with 6 judges dissenting involving both an oral and written consent to search). This Court has not previously relied upon this standard. Our standard has long been established and should be applied in this case rather than substituting language from a federal case.
.The findings of fact and conclusions of law for the suppression motion were submitted to the judge after the court trial. They were signed four months later.