Dissenting.
[ 1 I must respectfully dissent to the analysis and answer provided to the certified question of law. The issue presented by the fact situation submitted by the United States District Court for the Northern District of Oklahoma is the ability of an officer to conduct an investigation outside his or her jurisdiction, not affect an arrest. This Court's Order fails to recognize that distinction.
T2 In Oklahoma, the authority to arrest, either as a law enforcement officer or a private citizen, is controlled by statute. See 22 0.9$.2001, §§ 186-209. It is these statutes that our case law has interpreted with regards to police officers acting outside of their jurisdiction. Now this Court seeks to apply this law relating to arrests to an entirely different area of criminal law procedure, Le. pre-charging investigation and due process. I submit the Order fails to recognize and, in turn, apply the correct legal analysis to the facts presented.
T3 Initially, we must recognize that Oklahoma does not have statutes which control the type of pre-charging investigation conducted by the law enforcement officers in this case. Therefore, we must look to state and federal case law for guidance.
*7124 4 The U.S. Supreme Court, as well as the Tenth Cireuit Court of Appeals, has determined that there are three general types of encounters between citizens and the police. These are: (1) consensual encounters that are not Fourth Amendment Seizures since they only involve a person's voluntary cooperation with an officer's non-coereive questioning; (2) investigative detention, which are Fourth Amendment seizures justified only if there is a reasonable suspicion that the person has committed or is committing a crime; and (8) arrests which are Fourth Amendment seizures characterized by highly intrusive or lengthy detention and justified only if there is probable cause to believe that a person has committed or is committing a crime. Terry v. Ohio, 892 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Hishau, 235 F.3d 565, 569 (10th Cir.2000).
T5 For the following reasons, this case falls under the category of a consensual encounter between the police and the defendant. In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court recognized that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. In analyzing whether a seizure or a consensual encounter has taken place, a court must consider all the cireumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter. Id.
T6 In U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 LEd.2d 497 (1980), the Supreme Court said:
Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
446 U.S. at 558-554, 100 S.Ct. at 1877 (internal citations omitted).
T7 The Tenth Circuit, in United States v. Zapata, 997 F.2d 751 (10th Cir.1993), enumerated a number of factors to consider in determining whether a police-citizen encounter becomes a seizure. The court stated that we must look at the location of the encounter, "particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officer; whether and for how long the officers retained the defendant's personal effects, such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent." Id., at 756. See also United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) overruled on other grounds, United States v. Little, 18 F.3d 1499, 1504 (10th Cir.1994) (the ultimate issue of whether a seizure occurred is a question of law.)
T8' An analysis of the above factors indicates that in the instant case a consensual encounter occurred between the Kansas officers and the defendant. First, the encounter occurred in a public setting, the defendant's place of business. The Kansas officers were dressed in plainclothes. Although they carried badges and weapons there is no indication either was used in a threatening or coercive manner. The officers identified themselves and informed the defendant they had no authority to arrest him. There was no show of force or restraint and the defendant was free to leave. Before talking with the defendant, the officers read him the Miranda warning. As the defendant was not in custody, it was not necessary for the officers to give him the Miranda warning. However, the Miranda warning did convey to the defendant that he did not have to answer the officers' questions. An analysis of all of *713these factors clearly establishes that the initial encounter between the defendant and the Kansas officers was consensual.
T9 After the initial interview, the defendant agreed to the officers' request to take them to his motoreycle motor sales business. The defendant drove separately, in his own vehicle, to the business, with the officers following behind. Once there, the defendant agreed to sign a consent to search form. As with the giving of the Miranda warning, it was not necessary for the officers to have obtained a signed consent form. As the Supreme Court stated in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973):
. when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact *249 to be determined from all the cireumstances, and 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.
412 U.S. at 248-249, 98 S.Ct. at 2059.
1 10 The Supreme Court also said:
While the Fourth and Fourteenth Amendments limit the cireumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person's voluntarily allowing a search.... And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment. We have only recently stated: "(Dt is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals." Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.
412 U.S. at 242-248, 98 S.Ct. at 2056. (internal citations omitted).
T11 In this case, there is no evidence of any inherently coercive tactiecs-either from the nature of the police questioning or the environment in which it took place. The search took place at the defendant's place of business. "Since consent searches will normally occur on a person's own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite." Schneckloth, 412 U.S. at 247, 93 S.Ct. at 2058. There is no reason to believe, under cireumstances such as are present here, that the defendant's responses to the officers' questions was presumptively coerced. Therefore, there is no reason to reject the traditional test for determining the woluntariness of the defendant's response. Here, the record before us clearly establishes the defendant's consent for the officers' search was voluntary.
T12 The original question posed to this Court from Judge Holmes focused on whether the conduct of the Kansas officers was legal as they were acting outside of their jurisdiction. The issue of the exercise of a police officer's authority outside his/her jurisdiction has usually been addressed by the courts in the context of the officer's authority to affect an arrest. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 LEd.2d 607 (1975); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). See also U.S. v. Green, 178 F.3d 1099 (10th Cir.1999); Staller v. State, 1996 OK CR 48, 932 P.2d 1136; State v. Stuart, 1993 OK CR 29, 855 P.2d 1070; Phipps v. State, 1992 OK CR 32, 841 P.2d 591; Graham v. State, 1977 OK CR 1, 560 P.2d 200.
{13 However, that is not the issue in the present case, as the arrest was made by the local Bartlesville Police, not the Kansas officers. For that reason, Phipps is inapplicable.*7141
{14 Here, the Kansas officers were conducting an investigation into stolen motorcey-cles and motors. As such, their questioning of the defendant was investigatory and not accusatory. In Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1964), the United States Supreme Court said:
... Nothing we have said today affects the powers of the police to investigate 'an unsolved crime, ... by gathering information from witnesses and by other 'proper investigative efforts' ... We hold only that when the. process shifts from investigatory to accusatory-when its focus is on the accused and its purpose is to elicit a confession-our adversary system begins to operate, and, under the cireumstances here, the accused must be permitted to consult with his lawyer.
378 U.S. at 492, 84 S.Ct. at 1766 (internal citations omitted). See also Spano v. New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959).
1 15 While the Kansas officers were admittedly acting outside their jurisdiction by interviewing the defendant in Bartlesville, Oklahoma, there is no legal prohibition to their questioning of the defendant in a consensual encounter.
T 16 In our previous state cases, this Court has held that officers acting outside their jurisdiction act as private citizens. See also Horn v. City of Seat Pleasant Md., 57 F.Supp.2d 219, 225 (D.Md.1999) ("an officer acting beyond his jurisdiction loses his cloak of authority.") Here, the Kansas officers clearly informed the defendant they had no authority over him. Viewing the officers' actions as those of private citizens, they are perfectly legal. There is nothing ilegal about private citizens asking each other questions and asking to look around their place of business. This Court's Order states that a private citizen would not ask another citizen to sign a written consent form with a police division name on it. That is probably true, but the written consent form does not raise this situation to the accusatory level where constitutional safeguards kick in. The written consent form, just like the Miranda warning, is a "red herring" in this case which appear to have been given by the officers only out of an abundance of caution. Howeyer, neither the consent form nor the Miranda warning contributes to a coercive atmosphere where the defendant was forced to sign the consent to search. As discussed above, the consent to search was given voluntarily.
T17 Accordingly, the encounter between the Kansas officers and the defendant was consensual, and the defendant's consent to search voluntarily given. Therefore, there has not been a Fourth Amendment violation and the evidence seized in the search is admissible at trial. See U.S. v. Green, 178 F.3d 1099, 1105 (10th Cir.1999).
" 18 Based upon this analysis, I believe the descriptive term "acting as a private citizen" has been overused, and to a degree misused when analyzing the role of law enforcement in our mobile society." Its use has been unknowingly wrongly extended merely because Oklahoma has a statute relating to "arrests" by private citizens. Now is the time to recognize the distinct difference between the invéstigation stage and the prose-ecution stage in the criminal process. Every day of the week law enforcement personnel are moving across jurisdictional lines of de-mareation following leads on evidence. That is the nature of crime. Criminals do not stay in clearly marked city, county, or state boundaries. Investigating officers should be able to follow where the evidence leads. The *715issue is then one of due process. Did the officer follow the rules? Did he or she inform the defendant and obtain a valid, knowing, voluntary consent, or go to local law enforcement and obtain a valid search warrant? The officers in the present case did everything right. The defendant's due process rights were protected. Local authorities were informed and utilized at the appropriate time. There is no legal basis for excluding the evidence in this case.
119 I am authorized to state Judge LILE joins in this analysis and vote.
. Further, this case is more consistent and a natural extension of our decision in Staller. In Staller, officers arranged for a confidential informant to contact suspected drug dealers to schedule some "buy/walk" drug sales. The confidential informant contacted the appellant and agreed to buy illegal drugs from him. 932 P.2d at 1139. This type of active participation in the arranging of a controlled drug buy is different from the investigative actions of the Kansas officers in the present case. In the present case, the crime had already been committed by the time the Kansas officers arrived in Bartlesville: In Staller, the crime had yet to be committed when the officers acted out of their jurisdiction. However, we find that sequence of events did not deprive the officers of the ability to obtain information and make observations that led to probable cause necessary for an arrest warrant. Id. at 1140.