(dissenting). The question presented in this case is whether the officer violated the defendant’s rights under both art. I, sec. 11 of the Wisconsin Constitution and the fourth amendment to the United States Constitution.
We review the trial court’s decision on this question using two standards: First, we will sustain the findings of fact of the trial court unless against the great weight and clear preponderance of the evidence. Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461 (1977). Second, we *222will “independently examine the circumstances of the ease to determine whether the constitutional requirement of reasonableness is satisfied. See State v. Carter, 33 Wis.2d 80-89-96, 146 N.W.2d 466 (1966), cert denied 387 U.S. 911; Ker v. California, 374 U.S. 23, 33, 34, 83 S. Ct. 1623, 10 L. Ed2d 726 (1963),” Bies v. State, 76 Wis.2d 457, 469, 251 N.W.2d 461 (1977).
The majority concludes that the seizure involved here, that is detention after the officer determined the identity of the defendant and obtained an explanation for the defendant’s conduct, did not amount to an arrest, and that probable cause, therefore, was not required. The majority concludes that the detention “was a justified stop supported by the officer’s reasonable suspicion aroused by the defendant’s and the passenger’s conduct.” Supra, at 213.
I do not decide whether the detention ever became an arrest. I conclude that after the defendant identified himself and explained the circumstances of his conduct the facts were insufficient to warrant his detention. I would hold that the officer violated the defendant's rights under both art. I, sec. 11 of the Wisconsin Constitution and the fourth amendment to the United States Constitution.
The applicable constitutional standard was set forth by the court in Terry v. Ohio, 392 U.S. 1, 21 (1968). It requires that the officer “. . . must be able to point to specific and articulable facts which taken together with relevant inferences from those facts, reasonably warrant that intrusion.” The question is whether the facts available to the officer “warrant a man of reasonable caution in the belief ‘that the action taken was appropriate.’ ” Terry v. Ohio, 397 U.S. at 22. See sec. 968.24, Stats. 1979-80.
No ironclad rule has been formulated to decide each case. The ultimate standard is reasonableness, and “it is necessary to examine both the character of the official intrusion and its justification.” Michigan v. Summers, *223-U.S.-, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). An investigative stop must be reasonably related in scope to the circumstances which justified the interference in the first place. The detention in this case, although in some respects not as intrusive as a custodial interrogation, Dunaway v. New York, 442 U.S. 200 (1979), was more intrusive than the Terry momentary stop. The nature of the governmental interest asserted by the prosecution in this case is not set forth and therefore the majority cannot show that the scope of the intrusion is reasonably related tc its justification.
At the suppression hearing Officer Burch set forth the “specific and articulable facts” which he thought warranted his detaining the defendant. The officer testified in part as follows:
“Q. Now, at the time that you called for the assistance for the backup, what crime, if any, did you feel that either Goebel or DiMayo was in the process of committing, if any, at all? A. It’s hard to say what went through my mind. I really didn’t think.
“Q. You didn’t have a specific — .
“The Court: Let him answer the question.
“Q. (By Mr. McNally) I’m sorry, your Honor. A. At the time, as I stated, it’s hard to say what was going through my mind, although I recall that there had been burglaries in the area. I didn’t know. You know. Possibly they had just committed a burglary. I didn’t know.
“Q. You didn’t know? A. But I was suspicious of them, okay.
“Q. And you had called in on this premise, had you not, that you were suspicious? A. I called for a backup, yes.
“Q. But you weren’t specific in your mind as to what that suspicion was, were you ? A. I didn’t know what they did, no.
“Q. You didn’t have any specific suspicion in your mind as to what crime, if any, either DiMayo or Goebel were about to commit, did you ? A. No.
“Q. And likewise you had no specific suspicion in your mind as to what crime either DiMayo or Goebel may have committed, is that correct? A. Several went through my mind.
*224“Q. And what were they? A. Possibly a burglary. It’s been many times in the past where I have pulled up behind cars and the driver and the passenger — .
“Mr. McNally: —Your Honor, — .
“Mr. Williams: —Let him answer the question. You asked it.
“Mr. McNally: I would ask that — . I want to state that I don’t think this is responsive.
“The Court: Read the question back, please.
“(Question read.)
“The Court: The answer is responsive. You may continue your answer.
“Mr. Burch: As I stated, it might have been possibly a burglary. Many times in the past I have pulled up behind vehicles and these things are being put underneath the seat or parties are trying to get rid of things. It’s been things that have been in the past that kind just led me to be suspicious of these parties.
“Q. (By Mr. McNally) But could you tell me, specifically, what crime you believed either DiMayo or Goebel or both of them together had recently committed ?
“Mr. Williams: Your Honor, I think he’s answered that.
“The Court: He can answer again. Objection overruled.
“Mr. Burch: There is no specific crime. It was a general — . You know.
“Q. (By Mr. McNally) And that was your suspicion because of this alleged movement you saw; is that correct? A. Not that alone, no.
“Q. What else? A. The vehicle being parked where it was. The area is rather open but there are a few houses that are in the area and, as I stated, there had been burglaries out in that area before.
“Q. And what do you mean by ‘before?’ A. Approximately a month prior to that there was a burglary, two burglaries at the same residence, just approximately a quarter mile away, a quarter mile south of where they were.”
Officer Burch was also asked if there was any report of a crime in that area prior to Goebel’s arrest:
*225“Q. Alright. There was no report of a crime that had taken place in that area prior to their arrest? A. Not that day but prior to, yes.
“Q. But not that day, had there? A. Not that day, no.”
Thus the testimony is that Officer Burch’s suspicion was based- on the geographic location (i.e. one-quarter of a mile from were a burglary had taken place a month earlier) of the vehicle for which Goebel had already offered an explanation — car trouble, the passenger’s movement to put something under the seat, the defendant’s and passenger’s nervousness, and the movement of both men about the vehicle which could be interpreted as intended to keep the officer from looking into the car. Burch testified that he radioed for assistance because he “felt the parties were very suspicious.” Burch repeated several times that the men were “suspicious,” underscoring the lack of specific articulable facts on which his conclusion was based.
In my opinion “specific and articulable facts,” which would warrant a reasonably cautious officer in light of his experience to believe criminal activity was afoot, are missing in this record. It appears that the officer acted on what the record reveals was an “inchoate and un-particularized suspicion or ‘hunch’,” Terry, 342 U.S. at 27. That the hunch proved correct does not in my view render the officer’s conduct constitutionally inoffensive.
Even if I were to conclude that the detention, was based on reasonable suspicion, I do not agree with the majority’s reasoning that the defendant voluntarily exposed the contraband to the officers. Apparently the majority holds, as did the trial court, that the defendant consented to the search of the area under the seat by carrying out the search himself. The burden of proving consent is on the state, and the burden must be sustained by clear and convincing evidence. Kelly v. State, 75 Wis.2d 303, 316, 249 N.W.2d 800 (1972). Consent must in fact be freely *226and voluntarily given and whether the consent was voluntary is to be determined from the totality of the surrounding circumstances, including subtly coercive police questions. As the United States Supreme Court said in Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) : “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U.S. 218 at 229.
The officer’s questions addressed to Goebel asking what was placed under the seat must be viewed not in isolation but in the context of the circumstances occurring prior to and during the officer’s questioning. The request was made after the second police car positioned itself in front of defendant’s car and after Valdes, the second, officer to arrive, had positioned himself at the passenger door. This record shows that the defendant did not believe that he was free to end the conversation and leave; the record suggests that the defendant acted in a manner contrary to his self-interest because he felt compelled to answer the officer’s questions. It is clear in this case that the officers continued to detain defendant in order to find out what was put underneath the seat in the car as the officer drove up. “Consent cannot be presumed from a showing of acquiescence to authority .... United States v. Mendenhall, 446 U.S. 544, 566-567 (1980) (White, J. dissenting opinion).
I conclude, based upon the pattern and intensity of the investigation as set forth in the record, that the consent in this case was coerced and that the trial court’s finding of voluntariness and consensual search is not supported by the evidence in the record.
Finally, I am unable to agree with the majority that the warrantless search of the defendant’s vehicle after his *227arrest was valid as a search incident to an arrest. “The word automobile is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 462 (1971); Arkansas v. Sanders, 442 U.S. 753, 760, n. 7 (1979).
In this case the automobile was searched after the defendants had been arrested and placed in separate squad cars. The contents of the automobile were not within the immediate control of either Goebel or DiMayo. “Under Chimel, the question is not whether the defendant could have reached a certain area on a prior occasion; rather, it is whether the defendant can presently (i.e,, at the moment of search) reach that area.” 2 LaFave, Search and Seizure sec. 7.1, p. 501 (1978). After the defendants were secured in the squad cars there was no possibility that either defendant would obtain a weapon from the car or destroy evidence contained therein. Thus the reasons for the rule permitting searches incident to a lawful arrest are inapplicable in this case. See United States v. Robinson, 414 U.S. 218, 234-235 (1973). The search incident to a lawful arrest exception is inapplicable. Chimel v. California, 395 U.S. 752, 763 (1969). Cf. State v. Prober, 98 Wis.2d 345, 357-359, 297 N.W.2d 1 (1980). Nor was there a danger that the vehicle, though inherently mobile, would be removed from police view. Officer Burch testified that a tow truck was called after the arrest was made to take the vehicle to the police station. No exigent circumstances were shown to exist ; no proper inventory search is claimed.
For the reasons set forth, I dissent.