concurring.
I concur in the opinion of this court and write separately to say some things about this case that need saying.
After a “disinterested, objective examination of the totality of the circumstances,” the dissent arrives at the rather remarkable conclusion that the “policemen genuinely comforted Mrs. Black.” It is difficult to picture how a two-hour interrogation of a crying, pregnant lady in the police interrogation room — during which she is told she may face two felony charges — could even remotely be considered comforting.
*973The role of the courts is to ensure that an individual’s right to remain silent offers true protection to that individual. It is therefore dangerous for courts to end their inquiry into whether an individual’s statements are truly voluntary once they have located the magic phrase “you do not have to answer any question and you are free to leave.” Coercion does not always come in such easy to spot packages as racks and whips. All too often it comes in the more subtle forms of an individual placed in jeopardy and told to make a crucial decision without the benefit of an attorney.
Now let us look at what really happened in this case. Mrs. Black’s husband was interrogated over a substantial period of time the night before her own interrogation. Mr. Black agreed to help with an ongoing investigation in Billings, Montana, and, as the interrogating officer stated:
“A. He cooperated to a great extent. He traveled with myself and Special Agent [] to Billings, Montana. Made some contacts with people in the Billings area, including the dispatcher up there, and also cooperated later in court proceedings against her.
“Q. And when was that finished, the Billings’ incident?
“A. The trial?
“Q. Yes.
* * # * * *
“A. I can’t be sure of that.
“Q. But it was just before these charges were filed against Mrs. Black; is that correct?
“A. I’m not sure of the exact date, but I believe the complaint against Mrs. Black was signed after the completion of the court case in Billings.”
At this point, it is apparent that Mr. Black’s cooperation was ensured by bringing his wife in, threatening her with criminal charges, but holding out the carrot of maybe no charges being filed if he cooperated. He did help the officers. They made the Billings case, and as soon as it was concluded, felony criminal charges were filed and prosecuted against Mrs. Black. Keep in mind Mrs. Black was a working mother waitress with three small children who was given $25 by a friend and used the $25 to purchase a small quantity of methamphetamine which was given to the friend. She had no prior criminal record of any kind. Now she has a felony record resulting, among other things, in loss of her rights of citizenship.
What she did, to be sure, was a crime. What she received for her cooperation was nothing. It is true the State must prosecute crime. But it is also true that in carrying out the many, varied and very great duties of the office, the prosecutor is vested with prosecutorial discretion in filing charges, recommending nolle prosequi, immunity, and some prosecutors make use of administrative probation within their office. All would avoid a felony record for this lady. That again is a matter for the discretion of the prosecutor — not exercised here — and one must wonder if she was fairly treated by the system.
Ultimately, the issue of whether there was coercion turns on the individual jurist’s notions of what is fair and what is permissible police conduct. Here, I am satisfied that there were sufficient circumstances to find coercion and, therefore, concur in the opinion of the court.