(dissenting).
NEMETFS CONSENT TO SEARCH HIS AUTOMOBILE WAS NOT VOLUNTARY BECAUSE IT WAS COERCED BY “OFFICIOUSNESS”
Generally, searches of persons and places must be authorized by a warrant based upon probable cause to believe that the search will yield contraband or other evidence of a crime. U.S. Const, amend. IV; S.D.Const. art. VI, § 11; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Zachodni, 466 N.W.2d 624, 627 (S.D.1991). There are recognized exceptions to this rule, United States v. Ross, 456 U.S. 798, 824-825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d *480572 (1982), including vehicle searches based upon probable cause, State v. Pfaff, 456 N.W.2d 558, 561 (S.D.1990); State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987), and searches based upon consent. Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043-2044; Zachodni, 466 N.W.2d at 628. Where there is voluntary consent to a search neither a warrant nor probable cause is necessary. Id.
The state has the burden of proving that consent to a search has been given freely and voluntarily. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). This burden is not met by showing “a mere submission to a claim of lawful authority.” Id. Voluntariness must be established by clear and convincing evidence that the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied. State v. Cody, 293 N.W.2d 440, 450 (S.D.1980) (Cody I).
The voluntariness of a consent to search is a question of fact to be determined from all of the circumstances. Schneckloth, supra; State v. Kissner, 252 N.W.2d 330, 333 (S.D.1977). As such, the trial court’s resolution of the question will be upheld unless our examination of the evidence, construed in a light most favorable to the trial court’s finding, convinces us that the finding was clearly erroneous. Zachodni, supra.
In this case, the trial court found that Patrolman Feltman asked Nemeti for permission to search his car “for no other reason than officiousness,” but that Neme-ti was not coerced into giving his consent and that Feltman did not make a bad faith threat to obtain Nemeti’s consent. It concluded that Nemeti’s consent to search his car was given freely and voluntarily.
My review of the evidence convinces me otherwise. Nemeti was properly stopped because he was speeding as he passed a truck. The offense, however, was so common and so minor that Nemeti was neither arrested nor prosecuted; only a warning ticket was issued. At this point Feltman did not return his driver’s license to Nemeti who was sitting in the patrol car or tell him he was free to leave. Rather, Feltman continued to detain Nemeti and persistently seek permission to search the car. Felt-man had absolutely no facts to substantiate that Nemeti had either drugs or alcohol in the car. He only based this detention and relentless requests to search on a nebulous feeling that there was something about Nemeti’s demeanor that he was “unsure” of.
Based upon the totality of these circumstances I am convinced that the trial court, who was clearly troubled by Feltman’s actions, was clearly erroneous in finding the consent to search voluntary. Accordingly, the objects seized should be quashed.