(dissenting).
What happened to Victor Ramirez that February 22, 1994 afternoon shouldn’t happen to a dog. It didn’t. It shouldn’t happen to someone traveling in the State of South Dakota either, but it did.
Victor is no Rhodes scholar. Like most of us, he’s a common, ordinary person. He and his bride-to-be were going to Deadwood to get married. He made mistakes, at least two: (1) He had some cocaine hidden in the front seat of his car, presumably to enhance the wedding rather than to finance it,1 and (2) he drove through Officer Swenson’s territory with an air freshener dangling from his rear view mirror.
*851Obviously Victor never counted on spending the afternoon with Officer Swenson, but Officer Swenson did. Whether it was Victor’s appearance, his nervousness, the dangling object, mere suspicion or quota mentality, or a combination of these, it is clear that this officer “was going to get his man.” What difference does it really make if he walks all over the Constitution in the process?
Officer Swenson did have the right to stop this vehicle and issue a citation for the dangling object. SDCL 32-15-6. He also had the right to check out the registration of the vehicle, which he did. Swenson claims he did his “plain view” search while he was waiting for the registration check to come back. Once he did those things, he had no right to require Victor and his bride-to-be to remain in the back seat of his patrol vehicle. Officer Swenson admits they were placed in custody. They were not free to go. They were compelled to remain in the back seat of (Officer Swenson’s Jail) the patrol car.
Officer Swenson’s conduct merits further scrutiny:
1. Operating on a bare suspicion or hunch, without any probable cause, Officer Swenson asked Ramirez about drugs in the ear. Apparently sensing Ramirez’s nervousness, he asked Ramirez if he could search his car. Ramirez initially consented but then withdrew his consent before Officer Swenson could start the search. See State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987) (officer who has probable cause to believe contraband or other evidence of a crime is in a vehicle may search without a warrant). Here, there was no probable cause.
2. Then while Ramirez and his companion are in the back seat, without probable cause, Officer Swenson returns to the Ramirez vehicle, presumably to conduct a plain view search. It doesn’t bother him that, as even the majority acknowledges, there is no such thing.2 In Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), the United States Supreme Court stated:
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.
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Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not he used to extend a general exploratory search from one object to another until something incriminating at last emerges.
Id. (citation omitted) (emphasis added). Here, Officer Swenson did not see anything “immediately apparent” when he first stopped the vehicle. He did not “inadvertently” discover some evidence; rather he conducted a second “general exploratory search” after he placed Ramirez and Hart-field in the back seat of the patrol car. Id. Even if this were proper, it would not include entering the ear to pick up a small seed, thought to be marijuana, but which turned out to be a sesame seed probably from a Big Mac. See Id.
3.Among the equipment furnished Officers of the South Dakota Highway Patrol is a tape recording machine. 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 *852back 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.3
4. 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:
[T]he 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. (emphasis added) (citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980)).
The majority states: “The search did not beget the incriminating statements. Rather they were the result of Swenson’s absence from the car.” Because Officer Swenson did not discover any physical evidence during his “plain view” search, the majority states “we need not tarry over the officer’s actions at Ramirez’s car.” “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.”4 Innis, 446 U.S. at 301, 100 S.Ct. at 1689 (emphasis added). Officer Swenson’s actions should be scrutinized because they constituted an “interrogation” under Miranda; since the Miranda warnings were not given and Ramirez was in custody, Ramirez’s constitutional rights were violated. Cody, 293 N.W.2d at 447. Conducting a “plain view” search like the one here, which concededly does not exist, then taping conversations (the reactions) of those whose vehicle is subjected to this search is not “normally attendant to arrest and custody[,]” nor does it appear to be proper procedure for a stop for a dangling air freshener. Innis, 446 U.S. at 301, 100 S.Ct. at 1689.
In oral argument, I asked Assistant Attorney General Todd Love whether this type of activity was standard operating procedure for the South Dakota Highway Patrol. He honestly acknowledged that he didn’t know. I don’t know either, but I respectfully submit that the appropriate authorities with the South Dakota Patrol decide whether this type of activity should be 1) Policy; or 2) prohibited — not only in theory, but in practice.
The cases cited by the majority don’t control this situation because they are generally distinguishable.5 If we were to take the *853majority’s rationale to its logical conclusion, then any recorded statements made by suspects in jails or police cars could be admissible even though a custodial interrogation oc-eurred without a Miranda warning.
Now I ask you — would Officer Swenson do these things to someone wearing a suit? Would he do this to you or to me? Would he ask to search your car without probable cause or any right whatsoever to do so? Would you feel compelled to consent? Would he place you and your companion in custody in the back seat of his patrol car? While searching your car? With a secret tape recording device activated? Without advising you of your Miranda rights?
I don’t think so either. It wouldn’t be fair or legally right. But we’re common, ordinary people, like Victor Ramirez. Therefore, it is obvious that he did not get due process, equal protection or any of the basic rights guaranteed to him by the Constitution of the State of South Dakota and of the United States.
. I do not condone possession or use of cocaine for any reason except appropriate medical purposes.
. In Peterson, 407 N.W.2d at 227 (Sabers, J. dissenting), I noted:
There is no such thing as a plain view search, only a plain view seizure. In other words, under certain circumstances, an officer can seize that which is in plain view. He cannot require people to remove themselves from a vehicle so that he can conduct a "plain view search or seizure” in and around the driver and passenger seat, the console, the glove compartment.
Id.
As noted by Justice Henderson’s dissent in the same case:
[The plain view doctrine] does not arise from any officer thrusting all or part of his body into the vehicle, and then proceeding to have a "plain view” look.
Id. at 226 (Henderson, J. dissenting).
. Officer Swenson gave these reasons for turning on the tape recorder:
One [reason] is for my safety that they’re not sticking stuff in my seats. Another is that in consent searches we have been taught that people like to say they are trying to get out of the back seat of the patrol car by yelling at you trying to get out of the car. The tape recorder is going to dispute that if they really weren’t doing that.
(Emphasis added). Swenson testified about the proper procedure in consent searches at the preliminary hearing. However, here, Ramirez had clearly withdrawn his consent to a search.
. Officer Swenson used this procedure before. He testified that he has obtained information of criminal activity by having his tape recorder turned on while he is outside of his vehicle after placing people inside.
In Innis, 446 U.S. at 301 n. 7, 100 S.Ct. at 1690 n. 7, the Court noted the intent of the police "may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response.”
.The majority cites several cases for the proposition that defendants do not have a reasonable expectation of privacy in a police car. See Clark, 22 F.3d at 800, McKinnon, 985 F.2d at 526, Seaton, 194 CaI.Rptr. at 35, and Hussey, 469 So.2d at 348. In those cases, the statements were obtained by consensual search or by search incident to arrest or probable cause, and Miranda was not raised as an objection to admission of the secretly taped conversations.
In Hussey, 469 So.2d at 348 n. 2, the court noted:
[W]e cannot approve or encourage the clandestine taping of every conversation under eveiy imaginable circumstance in the police car and not in the presence of the officer. Under some circumstances, the conviction of a defendant solely on the basis of evidence directly derived *853from such an illegal and unconstitutional recording would not stand judicial scrutiny under Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)].
Id. Here, Ramirez was stopped a second time only because of the secretly recorded comments. Officer Swenson had no other reason to stop him again.
In Hussey, 469 So.2d at 348, cited by the majority, a defendant was arrested for DWI and the defendant requested an inventory of the items in his car before impoundment. His comments about stolen items were secretly recorded while he sat in the rear seat of the patrol car. Since the defendants were already arrested, handcuffed, and placed in the closed rear seat area of the officer’s car, "their expectation of privacy would not have been recognized as reasonable and justifiable[.]” Id. at 351. Defendants' convictions for possession of stolen property were upheld because police had additional independently obtained evidence which was not tainted. Id. (citing U.S. v. Crews, 445 U.S. 463, 472, 100 S.Ct. 1244, 1250, 63 L.Ed.2d 537 (1980)).