RAPER, Justice.

Appellants were tried by a jury and convicted of first degree murder and assault and battery with felonious intent. They challenge the conviction on three bases. First, they argue that their constitutional rights were violated when police officers stopped their vehicle without probable cause, and that therefore all evidence obtained as the result should have been suppressed. Second, they contend that the consent they gave to a search of their vehicle's trunk was obtained illegally and that, therefore, it was invalid, thus mandating the suppression of the evidence gathered during the search. Finally, they claimed that certain testimony by the arresting officer was impermissible comment upon the exercise of the appellants' constitutionally protected right of silence.

We will affirm.

At approximately 11:45 p.m. on October 29, 1978, the home of Dennis and Christina Baird, located in Glenrock, Wyoming, was entered by force. The assailants kicked open the front door and went inside. Wade Dugger, a house guest who was sleeping in the front room on a couch, awoke to the sound of a shotgun blast which hit the Bairds' dog as it ran into the room. Mr. Dugger stood up and he too was shot. The blast knocked him backwards into the adjoining bedroom in which the Baird children were sleeping. Dennis and Christina Baird jumped out of bed to investigate the commotion. As they approached the door into the front room, Dennis pushed his wife back into the bedroom and indicated that she should wait. He then went around the door and was instantly shot. His body, recoiling from the shotgun blast, landed at Christina's feet. Desperate for help, she headed out of the bedroom and then saw Derrick Parkhurst, one of the appellants, running out the front door. When she went to check on her children, she discovered that Mr. Dugger was seriously injured. She asked if he was all right and he responded, "no," and then said, "Derrick." Ms. Baird then ran next door for help.

When the police arrived, a witness told them that he had seen two males fleeing the scene in a blue or green Ford Fairlane and that he had followed the car far enough to see it heading out of town towards Douglas, Wyoming. The police, upon entering the house, determined that Dennis Baird was dead but that Wade Dugger was still alive. While awaiting the arrival of an ambulance, Ms. Baird informed the police that Dennis and Derrick Parkhurst were the assailants. A police officer then asked Mr. Dugger if he knew who shot him. Unable to understand the response, the officer queried if it had been Derrick and Mr. Dugger indicated yes; Dugger survived to testify.

The Glenrock Police Department alerted the sheriff's office, which in turn broadcast a description of the two assailants' car. The broadcast also noted that the vehicle was last seen heading north out of Glenrock on a back road leading to Douglas. The sheriff's office in Douglas dispatched Officer Hineman to patrol the back road from Glenrock at the point it leads into Douglas. Officer Hineman, while on patrol, saw a mid-60's vehicle going into Douglas at about a quarter to one, a.m. In order to get a better look, the officer made a U-turn and followed the car. He was then able to determine that the car was a blue Dodge with a license number of 8-4679, and that the car had two occupants. As the officer followed the vehicle onto an entrance ramp for I-25, he contacted City of Douglas Officer Dekmar, who was stationed on that highway, informed him of his intent to stop the suspects, and asked for backup.

When the stop was made by Officer Hineman, he positioned his car so that the car's headlights would shine on him as he approached the suspects' vehicle. As Officer Dekmar pulled up behind Officer Hineman's patrol car, he saw Officer Hineman walking towards the suspects' car. Dekmar then exited his vehicle and crossed over to the guardrail running parallel to the highway. Taking up a position there where he could observe Hineman and the subjects, he drew his weapon. Hineman, meanwhile, asked the driver for his license which when produced identified him as Dennis Parkhurst. The subject was then requested to get out of the car and stand in front of it with his hands on the hood. The officer was informed that the passenger was Derrick Parkhurst. Derrick was asked to also exit the vehicle and position himself in front of it. While doing so, he observed Officer Dekmar by the guardrail with his gun drawn. At this point, Officer Hineman questioned the suspects concerning their whereabouts prior to the stop. When Hineman walked back to his vehicle to radio the dispatcher, Dekmar holstered his gun and approached the suspects to determine if they had any weapons. When asked, Derrick indicated that there was a .22 and a shotgun in the trunk. Dekmar then tried to contact the county attorney by radio. Unable to, he returned to ask the suspects who owned the car. Dennis Parkhurst stated that he did. Dekmar requested permission to search the car. Dennis' reply was that he was no lawyer, but Derrick told him to go ahead and let the police search the car. Dekmar advised Dennis he did not have to be a lawyer and that he could either grant permission for the search or he could refuse. Finally, Dennis consented. The police then retrieved the keys from Dennis' pocket and conducted the search. In the trunk they found a .22 caliber rifle and 12-gauge shotgun which was later matched to the spent shells found at the scene of the murder. From the smell of the shotgun, it was determined that it had recently been fired. Hineman then advised both subjects they were under arrest. Officer Dekmar gave the appellants their Miranda rights as he patted them down and handcuffed them. While the guns were removed from their auto and it was impounded, the Parkhursts were taken in and booked.

Appellants sought before trial to have all evidence obtained as a result of the stop as well as the search suppressed on the basis of the unconstitutionality of the police officers' conduct. However, the trial judge denied their motion and admitted the evidence. Now on appeal the trial judge's ruling is challenged partly upon grounds emanating from the Fourth Amendment to the United States Constitution and § 4, Art. I of the Wyoming Constitution and partly upon grounds emanating from the Fifth Amendment to the United States Constitution and § 11, Art. I of the Wyoming Constitution. We shall consider the former grounds first.

I

The appellants' Fourth Amendment claim is directed to the seizure of their persons and the search of the automobile in which they were riding. The remedy they seek for the alleged violation of their rights is the invocation of the exclusionary rule barring the admission of all evidence obtained as a result of illegal police activity.

First, in order to assert a constitutional violation, one must have standing. This issue was considered by the United States Supreme Court in connection with the Fourth Amendment in Rakas v. Illinois, 1978, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, reh. denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83. There the Court concluded in order to obtain the benefit of the remedy, i.e. the exclusionary rule, an individual must first demonstrate that his legitimate expectation of privacy in that which was either searched or seized was violated. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. See also Comment, Unreasonable Searches Under the Fourth Amendment: "the rule becomes `curiouser and curiouser,'" 15 Land Water L.Rev. 275 (1980). This is the first opportunity this court has had to consider this issue following Rakas. We agree that one seeking the imposition of the exclusionary rule must be claiming a violation of his/her own constitutional rights under the Fourth Amendment, United States Constitution, or § 4, Art. I, Wyoming Constitution. And where the accusation is that the police have improperly searched or seized something, the claimant must have had a legitimate expectation of privacy as to that something. Factors to be considered in making this determination include: (1) the precautions taken in order to maintain one's privacy; (2) the likely intent of the drafters of the United States and Wyoming Constitutions; (3) the property rights the claimant possessed in the invaded area; (4) the legitimacy of the individual's possession of or presence in the property which was searched or seized. Comment, supra, 15 Land Water L.Rev. at 283, fn. 56, and at 295.

In this case, we must conclude that the appellants did possess the requisite expectation of privacy. No one has ever challenged the existence of such in regard to one's own person, and properly so; therefore, appellants have standing to object to the seizure of their persons. Further, Dennis Parkhurst as owner of the vehicle which was searched had a legitimate expectation of privacy in his property, as would all property owners. And we find that Derrick Parkhurst as a guest in his brother's automobile could reasonably expect that the car in which he was a guest would be free from state encroachment. Thus, both appellants have standing to protest the search of the car's trunk under § 4, Art. I of the Wyoming Constitution.

Appellants assert that their constitutional rights were violated when they were stopped and detained by the police officers and then again when the trunk of the automobile in which they had been riding was searched. Based upon these claims, they ask this court to overturn their convictions because the trial court failed to exclude the evidence found as a result of the police misconduct.

The purpose of the Fourth Amendment guarantees has been eloquently expounded upon by the United States Supreme Court on numerous occasions. In Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, it was stated:

"* * * If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. * * *" 232 U.S. at 393, 34 S.Ct. at 344, 58 L.Ed. at 656.

In the years that followed, the Court has continued to discuss the Fourth Amendment as embodying the democratic principles which are the cornerstone of our Constitution. Cann Egbert, The Exclusionary Rule: Its Necessity in Constitutional Democracy, 23 Howard Law Journal 299 (1980). Justice Sutherland, writing for the majority in Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, noted:

"* * * The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right." 273 U.S. at 33-34, 47 S.Ct. at 250, 71 L.Ed.2d at 524.

Justice Butler's majority opinion in Go-Bart Importing Company v. United States, 1931, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, observed:

"* * * Since before the creation of our government, [general] searches have been deemed obnoxious to fundamental principles of liberty. They are denounced in the constitutions or statutes of every State in the Union. Agnello v. United States, 269 U.S. 20, 33 [ 46 S.Ct. 4, 6, 70 L.Ed. 145]. The need of protection against them is attested alike by history and present conditions. The Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted. [Citations.]" 282 U.S. at 357, 51 S.Ct. at 158, 75 L.Ed. at 382. (Bracketed word substituted.)

And Justice Jackson in his majority opinion in Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, stated:

"* * * An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine `the right of the people to be secure in their persons, houses, papers, and effects,' and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." (Footnote omitted.) 333 U.S. at 17, 68 S.Ct. at 370-371, 92 L.Ed. at 442.

In Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court established that it was constitutionally permissible for police to stop and frisk an individual when the officer had a reasonably articulable suspicion that the person was armed and dangerous. The opinion reached this result because such a detention was not nearly so intrusive as a full-blown arrest and, therefore, could be justified on less grounds, i.e., probable cause was not required. Also see, United States v. Cortez, 1981, ___ U.S. ___, 101 S.Ct. 690, 66 L.Ed.2d 621.

The Tenth Circuit has expounded further on the subject in United States v. Sanchez, 10th Cir. 1971, 450 F.2d 525, 528:

"Temporary detention for limited investigatory purposes, as well as a full blown arrest, is protected by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, in Terry it was observed that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest, and that the test of any governmental invasion of a citizen's personal security is its reasonableness in the light of all the surrounding circumstances.

"In this same vein it has been held that probable cause to arrest requires something more than probable cause to temporarily detain for the purpose of attempting, for example, some on-the-spot questioning and that, as concerns the latter, brief detention under circumstances that would not justify an arrest is not ipso facto unconstitutional. See such cases as Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966); United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970); and United States v. Oswald, 441 F.2d 44 (9th Cir. 1971). And in United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137, it was held that a brief detention based on an officer's reasonable suspicion that criminal activity was afoot is constitutionally permissible for the purposes of a limited inquiry and that incriminating evidence which may come to the officer's attention during such period of detention can become a reasonable basis for effecting a valid arrest."

Wyoming approved this language from Sanchez when after the following passage the preceding was quoted in a footnote:

"This does not mean that a person may not be detained by the officer for investigation without an arrest being effected where there is probable cause to believe there has been a crime committed or to believe one is being committed, coupled with a belief that the subject is or could be involved in its commission. Under such probable cause circumstances the person may be detained for inquiry." (Footnote omitted.) Rodarte v. City of Riverton, Wyo. 1976, 552 P.2d 1245, 1251.

"* * * It is fundamental that `a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' Terry v. Ohio, supra, at p. 22, 88 S.Ct. at p. 1880. And, under appropriate circumstances, police officers have a duty to approach, temporarily detain and question persons as to possible crimes, and investigate suspicious behavior, even though there are insufficient grounds for arrest. United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971)." 495 F.2d at 681.

This approach was again affirmed in United States v. Mireles, 10th Cir. 1978, 583 F.2d 1115, 1117, cert. denied 439 U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 332.

In light of such authority, the police officers' conduct in making an investigative detention was reasonable since the record discloses ample grounds for their suspicions concerning appellants. Further their conduct was in accord with such a stop. They explained the circumstances to the appellants and asked relatively harmless questions concerning their whereabouts prior to the stop. In the meantime the officers radioed in information to the dispatcher in order to determine if the car they had stopped was the one wanted. Since the police knew the assailants were armed and dangerous, having already killed one individual, it was reasonable to ask any detainees to step out of their car in order for the police to better observe them while awaiting more information from the dispatcher. And finally, asking the appellants if they were armed was surely less intrusive than a frisk which was not done. Though a police officer may be a fool to accept a negative response, since he had authority under Terry to conduct a frisk for weapons, surely he has authority to ask. United States v. Castellana, 5th Cir. 1974, 500 F.2d 325 (en banc).

We must also consider the constitutional validity of the search of the trunk of Dennis Parkhurst's car. It is well recognized that an individual may waive his/her constitutional right against unreasonable search and seizure by giving a voluntary consent. Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 859. But this leads to the question of when is a consent voluntary. The Supreme Court grappled with that issue in Schneckloth, supra, and established a test for determining when there was a voluntary waiver of Fourth Amendment rights as follows:

"* * * [W]hether a consent to a search was in fact `voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a `voluntary' consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.

* * * * * *

"* * * [T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting `consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635 [ 6 S.Ct. 524, 534, 29 L.Ed. 746]:

"`It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'

"The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a `voluntary' consent reflects a fair accommodation of the constitutional requirements involved. 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. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of `voluntariness.'" 412 U.S. at 227-229, 93 S.Ct. at 2047-2049, 36 L.Ed.2d at 862-864.

Schneckloth was just recently reaffirmed in United States v. Mendenhall, 1980, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.

The question in this case is, therefore, whether Dennis Parkhurst voluntarily consented to the search of his car. If he did, then he would have waived any Fourth Amendment claim of his own. Further, his brother's expectation of privacy as to the car in which he was passenger could not reasonably have been that it would not be searched even if consented to by the owner. Thus a voluntary consent to the search of the car by Dennis, the owner, would also bar Derrick from asserting any Fourth Amendment claim.

The issue of the voluntariness of the consent may be properly resolved by a preponderance of the evidence standard. Fitzgerald v. State, Wyo. 1979, 601 P.2d 1015. On appellate review "we view the evidence most favorably to the party who prevailed below." Fitzgerald, supra, 601 P.2d at 1018. Here the evidence was (1) the police officer asked Dennis if he could search the car; (2) Dennis replied he was not a lawyer; (3) Dennis was urged by his brother, Derrick, to go ahead and let the police officer make the search; (4) the officer indicated to Dennis that he did not have to be an attorney, he could consent to the search by himself if he wanted to; and (5) Dennis agreed to permit the search. Based on this evidence the trial court could reasonably have concluded that the defendant voluntarily consented to the search of his automobile. Therefore, we must uphold its decision and rule that the evidence obtained as a result of the search was admissible. The existence and voluntariness of a consent to search is a question of fact to be decided by the trial judge in the light of all attendant circumstances. Mares v. State, Wyo. 1972, 500 P.2d 530, 534, fn. 1. The trial judge, under the circumstances here, was fully justified in not suppressing evidence acquired by the officers. We find no duress or coercion, as did he.

II

Appellants' claim also concerns the Fifth Amendment to the United States Constitution and § 11, Art. I of the Wyoming Constitution. The assertion is that the questioning conducted by Officers Hineman and Dekmar following the stop of appellants was unconstitutional since no Miranda warnings had been given apprising the appellants of their right to remain silent. Therefore, appellants charge that the trial court erred in not excluding testimony concerning statements made by appellants to the police prior to the giving of Miranda warnings, and evidence obtained as a result of the various statements.

Specifically, the following testimony was elicited on direct examination of Officer Hineman involving the conversation he had with the appellants shortly after he stopped their vehicle:

"Q What else did you do then concerning your investigative detention? You testified that both Dennis and Derrick Parkhurst had been asked to exit the car.

"A I asked them where they had been.

"Q And did you get a response?

"A Yes, sir. They said — if I may read from my notes, sir, from my report.

"Q You may look at your notes and refresh your memory.

"A Derrick Parkhurst said they had been north of Glenrock out around the mines just driving.

"Q Did he say anything else as to what they — at that time what they were doing?

"A First he asked what the stop was about. I advised him of the nature of the incident in Glenrock and the possibility that their vehicle matched or partially matched the description of the vehicle seen at or near the scene. I again asked them how they had gotten out there north of Glenrock. Neither one seemed to know.

"Q Derrick Parkhurst told you, though, that they were out around the mines just driving around. Is that what he told you?

"A Yes, sir.

* * * * * *

"Q (by Mr. Laird) What were you doing when you were asking those questions, Deputy Hineman?

"A I was trying to ascertain where they had come from, where they might be going, how they had gotten on to 93, Wyoming 93, how long they had been out there, and what they had been doing while they were out there.

"Q Did anyone have them — you stated you asked a question, had they been to Glenrock. Did you get a response from that question?

"A Yes, sir, Derrick said they had driven through Glenrock."

Also, appellants challenge the admission into evidence of the weapons found in the trunk of the car on Fifth Amendment grounds because the evidence was discovered as a result of further interrogation by Officer Dekmar. This argument is premised upon the fruit of the poisonous tree doctrine found in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. As to this issue Officer Dekmar testified:

"A Well, after Deputy Hineman had both subjects in front of the vehicle, I determined that there was no longer any possibility of any danger, so I secured my weapon, and —

"Q What do you mean by securing your weapon?

"A I reholstered it.

"Q And then what did you do?

"A I stood up and Deputy Hineman started to walk back to his vehicle, and before I fully approached the subjects, I asked if they had any weapons.

"Q Did you get a response?

"A Yes, I did.

"Q Who did you get a response from?

"A Derrick Parkhurst.

"Q What did he say to you?

"A He said something to the effect that there is a .22 and a shotgun in the trunk."

In the context of the right against self-incrimination involved here, there exist concerns in addition to those found in the search and seizure area. These were discussed in Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182.

"When involuntary statements or the right against compulsory self-incrimination are involved, a second justification for the exclusionary rule also has been asserted: protection of the courts from reliance on untrustworthy evidence. Cases which involve the Self-Incrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself. And cases involving statements often depict severe pressures which may override a particular suspect's insistence on innocence. Fact situations ranging from classical third-degree torture, Brown v. Mississippi, 297 U.S. 278 [ 56 S.Ct. 461, 80 L.Ed. 682] (1936), to prolonged isolation from family or friends in a hostile setting, Gallegos v. Colorado, 370 U.S. 49 [ 82 S.Ct. 1209, 8 L.Ed.2d 325] (1962), or to a simple desire on the part of a physically or mentally exhausted suspect to have a seemingly endless interrogation end, Watts v. Indiana, 338 U.S. 49 [ 69 S.Ct. 1347, 93 L.Ed. 1801] (1949), all might be sufficient to cause a defendant to accuse himself falsely." (Footnote omitted.) (Emphasis in original.) 417 U.S. at 448-449, 94 S.Ct. at 2365-2366, 41 L.Ed.2d at 195-196.

No such pressures were present here. The police were investigating a crime of violence in which the suspects at large posed a serious threat to the public's safety. They contend that they merely stopped the appellants for an investigative detention, as we held in Part I, supra, and that Miranda warnings were not necessary until the direction of their detention changed from investigatory to accusatory.

It is now generally recognized that Miranda warnings are not required when police make an investigatory stop pursuant to Terry v. Ohio, supra. Absent special circumstances where extraordinary coercive tactics are employed, the warnings are necessary only when the encounter becomes accusatory. Kamisar, Kauper's "Judicial Examination of the Accused" Forty Years Later — Some Comments on a Remarkable Article, 73 Mich.L.Rev. 15, 25, fn. 33 (1975). Thus, since the police had the authority to make the investigatory stop, they were under no duty to give Miranda warnings.

Finally, we observe that appellants' statements themselves were rather innocuous and relatively insignificant. They are neither inculpatory nor exculpatory. But most importantly they, in the context of the right against self-incrimination, do not appear to be the product of coercion. Thus, we believe that the statements are not within the scope of the Fifth Amendment prohibition.

III

The final issue raised in this appeal concerns the following testimony of Officer Hineman (some of which has previously been set out but, for convenience, is repeated):

"Q What else did you do then concerning your investigative detention? You testified that both Dennis and Derrick Parkhurst had been asked to exit the car.

"A I asked them where they had been.

"Q And did you get a response?

"A Yes, sir. They said — if I may read from my notes, sir, from my report.

"Q You may look at your notes and refresh your memory.

"A Derrick Parkhurst said they had been north of Glenrock out around the mines just driving.

"Q Did he say anything else as to what they — at that time what they were doing?

"A First he asked what the stop was about. I advised him of the nature of the incident in Glenrock and the possibility that their vehicle matched or partially matched the description of the vehicle seen at or near the scene. I again asked them how they had gotten out there north of Glenrock. Neither one seemed to know.

"Q Derrick Parkhurst told you, though, that they were out around the mines just driving around. Is that what he told you?

"A Yes, sir.

"Q After that, what did you do?

"A I continued to talk to the subjects, tried to ascertain or to make certain where they had been, how they had gotten there, what roads they had travelled, whether they had passed through Glenrock or not. Some questions were answered, some weren't.

* * * * * *

"Q After you returned from the vehicle, from your vehicle and obtained your jacket, what did you do then?

"A Continued to ask them where they had been, where they were going.

"Q After that was there another officer in the area?

"A Officer Dekmar was there with me, yes.

"Q Where was Officer Dekmar during that time?

"A After both of the subjects were out of the vehicle, he had moved over behind me.

"Q At that point in time, did he have his weapon drawn?

"A Not then, no, sir.

"Q What did you do after he moved over to the vehicle?

"A Talked to the subjects where they had been.

* * * * * *

"Q (by Mr. Laird) Deputy Hineman, what did Officer Dekmar do at the time he came over to the defendants' vehicle?

"A Stood behind me.

"Q Did he [Hineman] make any statements to you?

"A Not at that time, no, sir.

"Q What did the two of you do after the parts you were testifying to?

"A When I returned from the vehicle, the second time, from my vehicle, Officer Dekmar advised that he had asked for consent to search. He advised me this in a loud enough tone of voise [sic] that both subjects could hear him at the front of the vehicle. We were standing about even with the front door, and neither subject said anything." (Emphasis added.)

Appellants cite Clenin v. State, Wyo. 1978, 573 P.2d 844, for the proposition that the officer's remarks were improper comment upon the exercise of their right of silence and that, therefore, their conviction must be overturned. In Clenin this court stated:

"* * * We hold that under this section of our state constitution any comment upon an accused's exercise of his right of silence, whether by interrogation of the accused himself, or by interrogation of others inherently is prejudicial, and will entitle an accused to reversal of his conviction. Such a breach of the accused's constitutional protections is plain error and prejudicial per se. * * *" 573 P.2d at 846.

However, we disagree with appellants' position in this case.

While this court said in Jerskey v. State, Wyo. 1976, 546 P.2d 173, 180, citing and quoting Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, with approval, "`* * * The prosecution may not, therefore, use at trial the fact that he [defendant] stood mute or claimed his privilege in face of accusation. * * *' (With citations) [Emphasis in Jerskey text]," the State did not directly or indirectly use a reference to silence against the appellants in the case now before the court.

Preceding Clenin v. State, supra, was Irvin v. State, Wyo. 1977, 560 P.2d 372, which first introduced into the jurisprudence of Wyoming the rule of Doyle v. Ohio, 1976, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the root case out of which grew not only Irvin but also Clenin. The rule of Doyle is that:

"* * * [U]se for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. * * *"

In neither Irvin v. State, supra, nor in Clenin v. State, supra, did this court prohibit all references to silence nor dictate unnecessary invocation of the stern rule of Clenin. Application of the rule must be made on a case-to-case basis. In Clenin it may appear without close examination that any statement having reference to silence of the defendant amounts to an absolute prohibition because he cannot be "compelled in any criminal case to be a witness against himself" within the protection of the Fifth Amendment to the United States Constitution and "compelled to testify against himself in any criminal case" within the language of § 11, Art. I of the Wyoming Constitution. We must look at the two cases of Irvin and Clenin. Both were squarely within Doyle because they were clear attempts to impeach the defendants because they had failed to tell law enforcement officers that they had alibis which at trial were for the first time raised as defenses. The use of defendant's silence in each case amounted to indirectly compelling him to testify. Without so deciding, we can say that any defense raised by the defendant at trial for the first time without previous advice to the State would probably fall within the same category. Clenin and Irvin are, therefore, clearly distinguishable from the case before us.

Gabrielson v. State, Wyo. 1973, 510 P.2d 534, furnishes another example wherein use of defendant's silence is an applicable ground upon which to reverse. There an officer testified that the defendant had refused to give him a statement. Here failures to speak did not "compel" the defendants to testify against themselves nor does there appear even an innuendo that the appellants were even unconsciously making any claim of right to silence in their unresponsiveness. No element of coercion is present nor can any inferences of guilt whatsoever be drawn from the absence of responses by the appellants.

Further, in Jerskey v. State, supra, 546 P.2d at 183, the court approved the principle that forbidden statements are reversible error where the prosecution has used a defendant's silence as a means of creating an inference of guilt; nor can there here be any inference "that an honest answer would have established the appellant's guilt," Jerskey at page 183. The conclusion must be that the testimony of the officer with respect to the challenged statements simply does not rise to the level of prohibited comments on silence. When silence carries no penalty, there is no error. Irvin v. State, supra at 373.

We believe that it is consistent with Jerskey and Clenin to read the term "comment" as implying more than a reference to the accused's silence. Implicit in the term is a reaction to that which is being mentioned which would present the possibility of the State exploiting the silence. Here the officer's statements were: "Some questions were answered, some weren't" and "neither subject said anything." Those statements constituted the totality of any reference to silence. These isolated statements were never at any time intended to be used to the prosecutor's advantage by the prosecution. Further, no later reference was made to any of them. There is nothing derogatory in those words; there is no expression of the police officer's attitude towards such silence. They are not so much statements concerning appellants' silence as they are testimony about behavior. Moreover, the silence referred to was of a passive nature; there was no affirmative exercise of the right to silence. Without more there is no reason to infer that the jury read the appellants' silence as an admission of guilt. It is reasonable to conclude that the jury took the appellants' unresponsiveness within the complete context of the stop as an indication that the appellants did not hear the question, the officer asked the question too fast, or they were frightened or confused — a state shared by most people upon being stopped by the police even though guiltless. There is nothing in these circumstances to indicate that appellants' nonresponsiveness manifests an exercise of their right of silence.

The present case is a far cry from Doyle, Irvin or Clenin. We do not believe it is this type of situation that was envisioned by the court in Clenin as constituting "comment." Merely observing that the defendants had not said much is not comment. Thus, without some showing of prejudice there is no error. The trial judge was in a better position to gauge what, if any, impact such statements had on the jury, and if the defendants' silence was used against them. Absent a showing of prejudice and where the statement is not a comment upon an appellant's silence, but merely a reference to it, we will not reverse.

Accordingly, the judgment is affirmed.