(dissenting).
I disagree with the majority decision holding that the consent to search defendant’s vehicle was invalidated by an illegal detention of the defendants, and that the evidence seized by police officers following the search was subject to suppression.
The trial court found the initial stop, request for identification, and the National Crime Information Center (NCIC) check of defendants proper. Following the stop of the defendants, they were delayed somewhere between twenty and forty minutes while state police sought information concerning the car and the defendants from the NCIC. Prior to obtaining a written consent to the search from the defendants, the officers advised defendants both as to their Miranda rights and that they did not have to consent to a search of their vehicle. The officers then conducted a search of the automobile and discovered eleven pounds of cocaine hidden in an extra spare tire in the trunk of the rental car.
In a letter written to counsel issued after a hearing on the motion to suppress, the trial court noted:
[t]he factual statements given in each brief are fairly accurate. At our hearing on this matter, I ruled that the stop of the Defendants for speeding was proper; that the further investigation into their identities, record, and possessory interests in the vehicle were proper; that the detention of the Defendants after the officer had completed his duties relative to the traffic stop constituted an illegal seizure; that the search of the defendants vehicle was made without a warrant, not incident to a lawful arrest, and not based on probable cause; and that the consent given by the Defendants to the search was voluntary. [Emphasis added.]
The officer who stopped defendants’ vehicle sought an NCIC check on the car. After the NCIC information was received, defendants were detained approximately fifteen to twenty minutes longer. Although the trial court found the consent to be voluntary, he found that it was tainted by the illegal detention and that the evidence discovered in the ensuing search should be suppressed. The trial court did not find that the consent to search was coerced or forced from the defendant.
The trial court’s finding that the consent was voluntary is in direct conflict with the lower court’s determination that the search of the car was improper. Absent a determination that defendants’ will was overborne or obtained improperly, the express consent of an accused to a search of his vehicle should validate the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Ruud, 90 N.M. 647, 567 P.2d 496 (Ct.App.1977).
The finding by the trial court that thconsent given by the defendants to the search of the automobile was “voluntary”, should dictate reversal of the order suppressing the evidence entered herein. The issue as to the voluntariness of the search was the ultimate issue to be determined. The fact that the consent to search was given during the time defendants were detained does not as a matter of law invalidate the consent.
An accused may consent to a search by law enforcement officers and if the consent is genuine neither a search warrant nor probable cause is necessary. State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967); State v. Austin, 91 N.M. 793, 581 P.2d 1288 (Ct.App.1978). See also Parkhurst v. State 628 P.2d 1369 (Wyo.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981) (upholding validity of search of car trunk after defendants were stopped and consented to warrantless search). In Schneckloth v. Bustamonte, the United States Supreme Court stated that the prosecution must demonstrate that the consent to search was voluntarily given and was not the product of duress or coercion; that voluntariness is a question of fact to be determined from the totality of all circumstances; and that “while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” See also United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Ruud.
The explanation for the ruling of the trial court as expressed in his letter to counsel appears to invalidate a consent to search given while an accused is in custody. This is not the law in New Mexico. State v. Herring, 77 N.M. 232, 421 P.2d 767 (1966), cert. denied, 388 U.S. 923, 87 S.Ct. 2126, 18 L.Ed.2d 1372 (1967) (consent can validate an unlawful search). See also State v. Austin. As noted in the Annot. “Validity of Consent to Search Given by One in Custody of Officers,” 9 A.L.R.3d 858, 873 (1966), “[m]any cases support the conclusion that a person may validly consent to a search even though the consent is given while he is in custody; that the fact of custody does not inherently render the consent invalid.” A party can waive his rights under the Fourth Amendment and consent to a search provided that the consent represents a free and uncoerced decision. State v. Ruud. Voluntariness of consent to search is a fact question to be determined from the “totality of the circumstances” in each case. Whether or not defendant is under arrest or in custody is not the determinative issue as to the validity of a consent to search. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Prichard, 645 F.2d 854 (10th Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981); State v. McMahan, 583 S.W.2d 540 (Mo.App.1979); State v. Angel, 356 So.2d 986 (La.1978).
The mere fact that a defendant is in custody does not alone render an accused’s consent to search invalid. State v. Lange, 255 N.W.2d 59 (N.D.1977) (upholding search of automobile after defendant was detained, taken to the police station and thereafter gave consent to search); People v. Zynda, 53 Ill.App.3d 794, 11 Ill.Dec. 471, 368 N.E.2d 1079 (1977) (upholding validity of defendant’s consent to a car search following his arrest); State v. Angel, (defendant’s consent to search vehicle was affirmed despite determination that his detention was illegal where there was no showing of coercion); United States v. Allison, 616 F.2d 779 (5th Cir.1980) (consent to search automobile held valid despite defendant’s arrest); United States v. Wiliams, 647 F.2d 588 (5th Cir.1981) (consent of defendant to search personal effects held valid after defendant was detained because he met test of possible drug smuggler); State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964) (fact that defendant was in custody and detained for questioning did not negate validity of his consent to search vehicle). In State v. Plas, on appeal the court reversed the trial court’s ruling that, because a defendant was held in custody the consent to search was invalid as a matter of law. In the instant case prior to the search of the automobile, the driver was read his Miranda rights and advised that he did not have to consent to the search.
It is not a prerequisite to uphold the validity of a consent to search without a warrant that a defendant first be accorded the rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Ruud; State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App.1972). Neither is a consent to search rendered involuntary by a failure to advise defendant of his right to refuse a request to search without a search warrant. United States v. Shields, 573 F.2d 18 (10th Cir.1978); United States v. Agapito, 620 F.2d 324 (2nd Cir.1980); People v. Tremblay, 77 A.D.2d 807, 430 N.Y.S.2d 757 (1980). In the present case defendants were advised of their Miranda rights and their right to refuse to give their consent to a search of their vehicle absent a search warrant. The trial court did not find that defendants’ consent was given under coercive circumstances. The right to search an automobile is different from and broader than the right to search premises of a building, home or office. State v. Laughter, 128 Ariz. 264, 625 P.2d 327 (App.1980) (defendant's consent to search car upheld despite fact officers handcuffed defendant and placed him under arrest).
To test the validity of a consent to search, the trial court must judge it against the totality of all the circumstances and the pivotal question is was the consent essentially a voluntary, free and unconstrained choice or was it the result of duress, coercion, implicit, or threat, express or implied, or of covert force. Schneckloth v. Bustamonte; State v. Ruud. The voluntary nature of a consent is a question of fact and not of law. United States v. Tolias, 548 F.2d 277 (9th Cir.1977); United States v. Watson.
Courts in other jurisdictions have consistently held that evidence obtained following the granting of a consent to search is not to be automatically suppressed as “fruit of the poisonous tree,” but have instead stated that the evidence is to be suppressed only if the consent was gained by exploitation of illegal conduct or that defendant’s free will was overcome so that the consent was not voluntary. State v. Kennedy, 290 Or. 493, 624 P.2d 99 (1981). See also 2 W. LaFave, Search and Seizure, § 8.1 at 611 (1978).
I would reverse the trial court’s order of suppression and remand the cause to the trial court for a determination of the issues presented in the motion to suppress under the totality of the circumstances test set forth in Schneckloth v. Bustamonte and State v. Ruud.