Lead Opinion
OPINION
{1} In this opinion, we trace the outer boundary of facts and circumstances sufficient to justify a protective frisk (pat down) for weapons during an ordinary traffic stop on the ground of officer safety pursuant to the Fourth Amendment to the United States Constitution. We hold that a weapons frisk was reasonable under the circumstances of this case. The Court of Appeals having decided differently, we now reverse and affirm the convictions below.
BACKGROUND
{2} Jason Swanson and Shawn Vandenberg (Defendants) were indicted on charges of possession of marijuana with intent to distribute and conspiracy to distribute marijuana. Vandenberg filed a motion to suppress in which Swanson joined. After a hearing, the district court denied the motion, concluding that the evidence was obtained through a valid, protective frisk for weapons. On appeal, the Court of Appeals reversed and ordered the evidence suppressed. State v. Vandenberg,
The First Stop
{3} On July 29, 1999, at approximately 5:00 p.m., Otero County Sheriffs Deputy House stopped a blue 1975 Monte Carlo on Highway 54 about two or three miles south of Alamogordo. Highway 54 is an area of heavy drug trafficking with a permanent Border Patrol station. Deputy House stopped the car because he thought it did not have a license plate. After stopping the car, the deputy noticed the vehicle did have a license plate located off to the side in a place where the manufacturer had designed it to be. Notwithstanding the presence of the license plate, Deputy House approached the driver, Swanson, and requested his driver’s license, proof of insurance, and vehicle registration. He told Swanson that the license plate needed to be in a more visible location. Although Deputy House considered the inconspicuous placement of the license plate to be an offense under the traffic laws, he decided not to issue a citation.
{4} After Deputy House told the passengers they were free to go, Deputy Hill arrived on the scene. Deputy Hill is a canine officer who often provides assistance to Deputy House when he is on patrol. Before Swanson could leave, Deputy House asked for Swanson’s permission to have Deputy Hill walk his dog around the car. Swanson asked if he had to consent to the canine sniff, and Deputy House replied that he did not. Swanson refused. According to Deputy House, Swanson and Vandenberg, the passenger, looked at each other, refused to make eye contact with Deputy House, and became very nervous when asked about the canine sniff.
{5} Deputy House allowed Defendants to continue on their way, yet his suspicions were aroused. In addition to the nervous behavior he observed, Deputy House had other concerns associated with the traffic stop. During the stop, another vehicle drove by and “honked and hollered” at Defendants. Swanson told Deputy House they had taken a friend to the El Paso airport and were on their way home. Deputy House assumed that the other car had also traveled to El Paso with them. Although Deputy House did not ask Swanson directly if this other car was traveling with them, he found it “unusual” that they had taken two vehicles to the airport. Their story seemed somehow inconsistent to Deputy House.
{6} Because Deputy House thought Defendants had acted in a suspicious and nervous manner, he issued a be-on-the-lookout (BOLO) to the Alamogordo city police. Officer Roberts responded to the call. Deputy House gave a description of the vehicle and the direction it was traveling. Deputy House told Officer Roberts about the nervousness he had observed and the alleged inconsistencies in their statements. The deputy also informed Officer Roberts that Defendants had refused the canine sniff.
The Second Stop
{7} After Officer Roberts talked with Deputy House, he spotted a vehicle fitting the description in the BOLO. According to Officer Roberts, the car was traveling at an unsafe speed, 35 miles per hour in a 25 miles per hour construction zone. Officer Roberts stopped the vehicle for speeding. Officer Roberts also indicated that he had no problem seeing the license plate.
{8} Officer Roberts approached the car and asked Swanson for his driver’s license, proof of insurance, and vehicle registration. Swansоn was cooperative and provided the information. Officer Roberts returned to his police car to run a license inquiry and complete a speeding citation. Meanwhile, Officer Roberts observed Swanson tapping his fingers on the hood of his car, glancing back at him in both the driver’s side view mirror and the rearview mirror, and glancing over his shoulder. He also observed Vandenberg rolling his window up and down several times, looking back toward Officer Roberts, and conversing with Swanson.
{9} Officer Roberts is an experienced police officer. He makes approximately fifty traffic stops a night. Based on what he observed of Defendants, as well as on the BOLO and his radio conversation with Deputy House, Officer Roberts became nervous about his safety. He requested assistance, and within a few minutes Officer Yost arrived on the scene.
{10} After Officer Yost arrived for backup, Officer Roberts approached the car again and told Swanson that his movements were making him nervous. Officer Roberts asked Swanson if he had any weapons inside the car, and Swanson responded in the negative. Officer Roberts then asked Swanson to get out of the car so he could frisk him for weapons. Swanson asked why he had to submit to a frisk, and Officer Roberts told him it was because he was making him (Roberts) nervous for his safety. After hesitating for a moment, Defendants both stepped out of the car.
{11} Officer Roberts requested that Swanson step to the rear of the car. Instead of complying, Swanson took a “very large” step away from Officer Roberts and again asked why Officer Roberts wanted to conduct a frisk. Swanson protested that he did not believe the officer had the authority to search him. Officer Roberts explained that he was not conducting a search, but simply a pat down for weapons. Swanson then became even more nervous, and Officer Roberts again requested that he move towards the rear of the vehicle. Swanson hesitated, and Officer Roberts touched Swanson’s right shoulder to escort him to the rear of his vehicle. When Officer Roberts touched Swanson’s shoulder, Swanson pulled away. At this time, Officer Roberts became even more concerned for his safety because of Swanson’s body language and demeanor. Officer Roberts ordered Swanson to place his hands behind his head. Swanson hesitated, but eventually complied with Officer Roberts’ directives, and Officer Roberts began his pat down.
{12} During the pat down, Swanson’s body became very rigid. When Officer Roberts got near the waist area of Swanson’s pants, Swanson pulled away. Officer Yost saw an object in the waistband of Mr. Swanson’s pants. As Officer Roberts leaned Swanson over thе trunk of the ear, Officer Yost removed the object from Swanson’s waistband. As Officer Yost struggled to remove the object from Swanson’s waistband, Swanson told Officer Roberts that he did not have to be so rough with him “because it was only dope.” Officer Roberts then placed Swanson in the back seat of Officer Yost’s police car.
{13} Meanwhile, Vandenberg disclosed to Officer Yost that he also had an object concealed in his pants, which Officer Roberts removed. The officers called for additional backup and placed Vandenberg in the back of the other police car. After Swanson and Vandenberg were arrested, Officer Roberts searched the vehicle with his canine but did not discover any additional drugs or weapons. The objects seized by the officers were tested and found to contain marijuana.
Procedural History
{14} Vandenberg filed a motion to suppress the marijuana, and Swanson joined the motion. In denying the motion to suppress, the district court stated:
[L]et me start with an observation and a ruling and the two are going to seem inconsistent. The observation is from a defendant’s point of view or a defense eounsel’s point of view, and maybe from an ordinary skeptical point of view, this one looks fishy. [However,] the ruling is I’m going to deny the motion to suppress.
The district court acknowledged that “Deputy House’s testimony about the license plate does seem odd, based on the later testimony that everything looked fine to the other two officers.”
{15} Nevertheless, the court was “not convinced, just on that conflict, that Deputy House lied about the basis for his stop.” The court was also “not convinced Officer Roberts lied about speeding as the basis for his stop.” With regard to the frisk for weapons, the district court concluded that, “[u]nder these circumstances, ... Officer Roberts and Officer Yost have provided specific articulable facts which are the basis of a reasonable belief that the individuals may be armed and dangerous.” Thus, the district court denied the motion to suppress, reasoning that the officers had a reasonable, articulable suspicion to justify a frisk for weapons, and that to hold otherwise “would leave officers in a position of subjecting themselves to unacceptable risks in the context of traffic stops.” After the suppression hearing, Defendants entered conditional no-contest pleas and reserved their right to appeal the denial of their suppression motions.
{16} In a divided opinion, the Court of Appeals reversed the district court, holding that the evidence should have been suppressed because Defendants’ rights under the Fourth Amendment to the United States Constitution had been violated. Vandenberg,
DISCUSSION
Standard of Review
{17} A motion to suppress evidence involves a mixed question of fact and law. State v. Urioste,
{18} With regard to the factual question, we review the facts in a light most favorable to the prevailing party, as long as the facts are supported by substantial evidence. See id. “As a reviewing court we do not sit as a trier of fact [because] the district court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses.” Urioste,
[Questions of “good faith belief’ ... are questions of fact for the trial court to determine, and the findings of the trial court in these regards are entitled to be accorded the same weight and given the same consideration as is generally accorded a trial court’s findings by appellate courts. Substantial evidence is the measure of proof, or the quality and quantity of the evidence, required to support the findings of the trial court.
State v. Attaway,
{19} However, deciding whether Officer Roberts’ actions were objectively reasonable, extends beyond fact-finding. See id. at 145,
The Frisk for Weapons During the Second Stop
{20} We start our analysis with Officer Roberts’ frisk for weapons during the second stop, because this event uncovered the marijuana. Before getting to the frisk, however, we briefly review the reasonableness of the second stop.
{21} Officer Roberts stopped Swanson for speeding in a construction zone. The district court believed Officer Roberts’ stated reason for the stop based upon evidence that Swanson was exceeding the speed limit. Based on this evidence, the Court of Appeals agreed with the district court that Officer Roberts reasonably suspected that Swanson had violated a traffic law. Reasonable suspicion arises if the officer can point to “ ‘specific articulable facts ... that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.’ ” State v. Taylor, 1999— NMCA-022, ¶ 7,
{22} To justify a frisk for weapons, an officer must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous. Terry v. Ohio,
{23} To determine the reasonableness of a protective frisk for weapons, we must balance the threat posed to officer safety undеr the circumstances, against “the individual’s right to personal security free from arbitrary interference by law officers.” Cobbs,
distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must like any other search, be strictly circumscribed by the exigencies which justify its initiation.
Id.,
{24} Of course, the exigent circumstances justifying a protective frisk are not limited to investigations of violent crimes. Recently, in a very similar case our Court of Appeals upheld a protective frisk in the course of a routine traffic stop for a seat belt violation. See State v. Chapman,
{25} In coming to this conclusion in Chapman, the Court of Appeals emphasized that the officer “provided more than [just] conclusive characterizations of [the djefendant.” Id. ¶ 16. “Instead of just describing [the d]efendant as nervous, the deputy identified specific behaviors and changes in [the defendant's demeanor and attitude that explained] why he believed that [the djefendant might be armed and dangerous.” Id. Erratic behavior exhibited by the suspect, a “failure to make eye contact, shaking hands, and unusual level of nervousness[,] were sufficient to allow the deputy to ask [the defendant whether he had any weapons on him.” Id. ¶ 17. After the officer asked about weapons, the suspect responded in a high-pitched tone of voice and in an anxious and aggressive manner, and exhibited uncontrollable shaking. Id. ¶ 18. At that point, after becoming concerned for his safety, the officer subjected the driver to a frisk for weapons.
{26} Importantly, the officer in Chapman proceeded incrementally before frisking the suspect for weapons. Id. ¶¶ 17-18. The officer observed that the suspect’s behavior deteriorated as he was questioned first in the car, and then outside the car, when he was specifically asked about weapons. Id.; cf. City of Albuquerque v. Haywood,
{27} We find Chapman particularly helpful in our analysis. In determining that Officer Roberts had a reasonable, articulable suspicion that Defendants might be armed and dangerous, the district court relied heavily on Chapman. On the other hand, the Court of Appeals majority opinion rejected Chapman, distinguishing it in the following manner:
[Vandenberg] and Swanson’s behavior— watching Officer Roberts in the rearview mirror, drumming fingers on the roof of the car, speaking to each other, rolling the windows of the car up and down, glancing back at Officer Roberts, and general fidgeting — during the second stop came nowhere near the panicked and aggressive behavior observed by the officer in Chapman.
Vandenberg,
{28} In both Chapman and this case, the officers testified that the drivers were more nervous than most people who are stopped for a routine traffic offense. In addition to extreme nervousness, the officers in both cases identified other specific observations that made them anxious for them personal safety. Although there are factual differences between Chapman and the present case, the principle underlying the two opinions is the same. The officers in both cases articulated specific reasons, including specific observations of the suspect’s conduct placed in context, why they needed a protective pat down for their personal safety.
{29} Like the police officer in Chapman, Officer Roberts testified that most people during a traffic stop move around some, but not nearly to the degree of Swanson and Vandenberg. Officer Roberts felt Swanson was trying to expel nervous energy through his movement, stretching, drumming his fingers on the roof of the car, and being aware at all times of the location of the officer. Based on his training and experience, Officer Roberts testified that very nervous people are often a threat to officer safety because they are unpredictable; Defendants’ nervousness indicated that they may have been in “fight or flight” mode, a concept he learned at the law enforcement academy. Defendants’ excessive movement, coupled with the information he received in the BOLO, made Officer Roberts concerned enough for his safety, first to ask Defendants whether they had any weapons, and then to require a protective frisk for weapons.
{30} As in Chapman, the situation gradually escalated. Each request by Officer Roberts was met with increasing nervousness and symptoms of potentially unpredictable behavior, and sometimes with evasive or hostile behavior. See id.,
{31} We caution that while nervousness may be a relevant factor in the calculus, we do not consider nervousness alone sufficient to justify a frisk for weapons. To reinforce the point, we expressly concur in that portion of the Court of Appeals’ majority opinion that states: “We take this opportunity to make clear that Chapman did not adopt a rule equating simple nervousness with reasonable suspicion.” Vandenberg,
{32} We also emphasize the principle, self-evident though it may be, that a routine traffic stop is just that: routine. Ordinarily, “routine” means that an officer may not constitutionally perform a protective frisk for weapons during a traffic stop. It is only when the traffic stop ceases to be routine that a weapons frisk may be necessary, assuming that the officer can meet the exaсting burden of presenting exigent circumstances, in sufficient detail and with convincing sincerity, to a discerning trial judge.
{33} Circumspectly, our holding is narrow. In this very close case, reasonable concerns for safety, and safety alone, justified Officer Roberts’ apprehensions and the protective pat down that followed. This was not a search for evidence. The officers did not try to make a case for suspicion of drug possession, and with good reason. Nothing about the perceived behavior of Defendants would have justified a frisk, much less a full-blown search, for evidence of any crime. See Cardenas-Alvarez,
{34} Traffic stops can be very dangerous. Maryland v. Wilson,
[o]ver the past 10 yеars, more than 1,000 police officers have been murdered. Approximately 10% of those killings, or about 11 each year, occurred during ‘traffic pursuits and stops,’ but it is not clear how many of those pursuits and stops involved offenses such as reckless or high-speed driving, rather than offenses such as driving on an expired license, or how often the shootings could have been avoided by ordering the driver to dismount.
Mimms,
{35} Legitimate concern for officer safety answers another of Defendants’ arguments. Defendants protest that the traffic stop was over when Officer Roberts began his frisk, which then exceeded the permitted scope of their detention. According to Defendants, after Officer Roberts completed the traffic citation, all he had to do was hand Swanson a ticket and let him go on his way; there was no need for any further interaction with Defendants, and no need for a protective frisk.
{36} We disagree. Officer Roberts testified that he did not become nervous about his safety until after he observed Defendants’ behavior while running the computer check and writing the citation. Our courts have made clear that “[djwring an investigatory stop, when an officer reаsonably believes the individual may be armed and dangerous, he or she may check for weapons to ensure personal safety.” State v. Flores, 1996— NMCA-059, ¶ 17,
The BOLO From the First Stop
{37} In reviewing the reasonableness of what Officer Roberts did during the second stop, we cannot confine ourselves solely to the circumstances of that one event. In this case, unlike Chapman, Officer Roberts relied to some extent on what Deputy House told him had occurred during the first stop. Officer Roberts testified that “based on what I observed from both individuals as well as the radio transmission I had received from Deputy Benny House, at that time my officer awareness or officer safety heightened quite a bit and I did myself become nervous.” When Officer Roberts was asked during the suppression hearing whether he would have called for backup if he had never received the BOLO from Deputy House, he responded “[p]robably not. It would have had to bé a little bit more on my particular stop to actually get me to call for some back up.” Inexplicably, Officer Roberts was never asked whether he would have demanded a weapons frisk without the information in the BOLO.
{38} As a general- proposition, an officer may reasonably rely on information obtained from a BOLO. Whiteley v. Warden, Wyo. State Penitentiary,
{39} However, “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.” Whiteley,
Legality of the First Stop
{40} In New Mexico, a license plate must be securely fastened “in a place and position so as to be clearly visible.” NMSA 1978, § 66-3-18(A) (1998). Deputy House stopped Vandenberg and Swanson under the mistaken belief that the vehicle was being driven without a license plate. Defendants argue that it was improper for Deputy House to ask for Swanson’s driver’s license, proof of insurance, and vehicle registration once he realized that the 1975 Monte Carlo did have a license plate. Defendants characterize Deputy House’s request as unreasonable, because “modest effort would have shown his perception to have been mistaken.” This argument ignores New Mexico precedent.
{41} The ease at hand is very similar to Haywood, in which the officer stopped the suspect’s vehicle because he believed that the car was being driven without a license plate or temporary tag.
{42} In the present case, no photos or other kinds of demonstrative evidence were placed in evidence at trial to refute Deputy House’s testimony that the license plate was not clearly visible. Therefore, despite Defendants’ remonstrations, we must defer to the district court and its conclusion that Deputy House spoke truthfully about his reason for stopping Defendants. Even though Deputy House was mistaken, the reasoning of Haywood and Reynolds leads us to conclude that Deputy House made a lawful stop, during which he could detain Defendants briefly to check the driver’s documentation.
Defendants’ Refusal of the Canine Sniff and Observations of Their Behavior
{43} After Deputy House ran the license inquiry, he told Defendants they were free to go. At that moment, Deputy Hill arrived on the scene, and Deputy House requested Swanson’s consent for a canine sniff of the exterior of the car. Defendants asked if they had to comply with the canine sniff, and Deputy House told them they did not. Swanson refused, and Deputy House allowed them to continue on their way. Deputy House then sent a BOLO and communicated directly with Officer Roberts about what he had observed of Defendants’ behavior, including their perceived nervousness while refusing the canine sniff. Deputy House testified:
I gave [Officer Roberts] a description of the vehicle. I told him about the nervousness, and I did advise him that [Defendants] did deny consent for me to have Officer Hill walk a dog around.
{44} We must consider whether any of this information was passed along to Officer Roberts unlawfully, or whether Officer Roberts’ reliance on the BOLO information contaminates the weapons frisk that followed.
{45} The law does not require Deputy House to turn a blind eye to safety considerations that may later come into play and endanger another officer. What an officer legally observes, he may take note of, and what he notes, he may pass along to his fellow officers. Defendants’ lawful exercise of his right to refuse a canine sniff
{46} The harder question is whether Deputy House’s inclusion of a neutral fact in the BOLO — the refusal of the canine sniff — necessarily contaminated Officer Roberts’ later opinion that his safety was in danger. Keeping in mind that for purposes of this opinion we draw no distinction between a refusal of a search and a refusal of a canine sniff, we think it self-evident that Defendants’ refusal is not a probative fact of guilt, suspicion, or dangerousness. See Florida v. Bostick,
{47} When Defendants refused the canine sniff, their conduct was a neutral act which neither incriminated nor exculpated them. Therefore, in determining whether Officer Roberts had reasonable suspicion to believe that Defendants were dangerous, we do not consider Defendants’ refusal to consent as a relevant fact. Cf. Racheal Karen Laser, Comment, Unreasonable Suspicion: Relying on Refusals to Support Terry Stops, 62 U. Chi. L.Rev. 1161, 1161 (1995).
{48} We look to thе remaining facts in the BOLO to determine whether Officer Roberts was reasonable in his belief that Defendants were dangerous. See Snow v. State,
{49} Instead, Officer Roberts relied upon his own observations coupled with the inferences he drew from the BOLO, and the BOLO contained information regarding Defendants’ demeanor, corroborated by Officer Roberts’ own observations, in addition to the refusal to consent. When we have already determined that Officer Roberts had sufficient, objective reasons to be concerned for his safety, it would be unreasonable for us to suppress the fruits of those suspicions, solely because the information available to the officer included one, irrelevant fact. The weight of the case law doеs not require it, and neither does a healthy sense of proportionality-
{50} Our opinion would be very different if Defendants had established that the officers’ claims were pretextual, fabricated as a means of retaliating against them for the exercise of their constitutional rights. However, there was sufficient evidence in this record for the district court to conclude that the officers were not so motivated. Assuming Officer Roberts acted in good faith, we hold that his actions were reasonable under the circumstances of this ease.
New Mexico State Constitutional Claims
{51} The Court of Appeals majority opined in a footnote, without exposition, that Article II, Section 10 of the New Mexico Constitution “provides an adequate and independent ground for suppressing the evidence seized by Officers Roberts and Yost.” Vandenberg,
{52} We must first determine whether any state constitutional argument was preserved, as required by Rulе 12-216(A) NMRA 2003 (“To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.”). In analyzing preservation, we look to the arguments made by Defendant below. Defense counsel’s motion to suppress argued that evidence seized must be suppressed pursuant to the federal and state constitutions, because the “unlawful search was pretextual and did not fit within the protective weapons frisk exception.” Defense counsel argued that the second stop and Officer Roberts’ weapons frisk were pretextual, because the real reason Officer Roberts stopped Defendants and ordered them out of the ear was to search them for contraband, and not because of speeding or concerns for officer safety. Defense counsel argued at the suppression hearing that, “the U.S. Supreme Court doesn’t care whether something is pretextual or not [and that] any excuse will sell in federal court .... [He also noted that] the State of New Mexico hasn’t followed that line at all [and that] a pretextual stop is a violation of Terry ..." In their briefs to this Court, Defendants argued for a different analysis of the importance of pretext under our state constitution.
{53} The premise for Defendants’ state constitutional claim is that Officer Roberts was acting out of ulterior motives, and that if so, the consequences of pretext should be different under our state constitution than under the federal constitution. However, the district cоurt believed Officer Roberts, as it was entitled to do, and did not find anything pretextual about either Officer Roberts’ stop or the protective frisk. The district court concluded; “I’m not convinced Officer Roberts lied about speeding as the basis for his stop and if speeding occurred, then that is reasonable suspicion and the officer provided evidence supporting reasonable suspicion for his stop.” Therefore, even assuming we were to adopt Defendants’ argument about the consequences of officer pretext under the state constitution, that argument finds no factual foundation in this case; it presents an abstract question, which we do not decide.
{54} Defendants make no other arguments below for a different approach under the New Mexico Constitution, and accordingly, we do not decide any such arguments raised for the first time on appeal.
CONCLUSION
{55} We hold that Officer Roberts’ frisk for weapons did not violate the Fourth Amendment. Therefore, we affirm the district court and reverse the Court of Appeals.
{56} IT IS SO ORDERED.
Notes
. There is some discrepancy as to whether Officer Roberts called for backup assistance or whether Officer Yost came to the scene on her own initiative. During the suppression hearing, Officer Roberts testified that he called for backup. During the grand jury proceedings, Officer Roberts testified that Officer Yost had seen the traffic stop and came over to offer assistance. Officer Yost testified that she could not recall whether she received a call from Officer Roberts.
. We agree, of course, with Justice Minzner that an officer must have a reasonable suspicion that a suspect is armed and dangerous "at the inception of the frisk.” Infra ¶ 64 (citing Terry,
. The parties did not address in their briefs whether Deputy House's request to conduct a canine sniff around the vehicle improperly exceeded the scope of the first traffic stop. See State v. Williamson,
. An individual does not have a legitimate expectation of privacy in the odors coming into a public place, State v. Cleave,
. We endorse the following quote from Zelinske: "If we were to hold that withdrawal of consent to search by ambiguous words and conduct constitutes a permissible factor for probable cause, we would then be faced with the necessary extension: refusal to consent to intrusion in the first instance could also authorize a warrantless search from the outset of the investigation. If refusal to consent could be a factor for probable cause, an officer who had some suspicion, but less than probable cause, could merely request permission to search and, no matter what the answer, could then proceed to search without a warrant. Such a result would be clearly contrary to the mandates of the fourth amendment."
Dissenting Opinion
(dissenting).
{57} While there is much in the majority opinion with which I agree, I must respectfully dissent from the holding in this case. I agree with the standard of review stated in ¶¶ 17-19 for motions to suppress, with the analysis of the validity of the second stop in ¶ 21, and with the test stated for analyzing a frisk in ¶ 22. I particularly agree that “[t]o justify a frisk for weapons, [an] officer must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous.” Majority Op. ¶ 22. Finally, I agree generally with the principle stated in ¶ 23 that we must balance an individual’s constitutional right to be free from an unreasonable search and seizure against a law enforcement officer’s responsibility to investigate crime and to be protected against unreasonable risks of injury in the course of an investigation. As applied to the facts of this case, however, for the reasons that follow, the relevant principles seem to me to support Defendants’ motions to suppress. Consequently, I would not address the validity of the first traffic stop, see id. ¶¶ 40-50, nor claims under the New Mexico state constitution, see id. ¶¶ 51-54.
{58} As for the justification of the Terry patdown, I do not believe that the evidence presented warranted a frisk for weapons. The majority does not identify any evidence that Officer Roberts actuаlly suspected Defendants were armed, but rather concludes that he “reasonably could have considered Defendants to be armed and dangerous, justifying a protective frisk for weapons.” Id. ¶ 30. I question whether we should rely on what he might have suspected, rather than first determining what he suspected, next determining whether what he suspected would have justified a frisk for weapons, and finally determining whether he had a “sufficient degree of articulable suspicion” to support a frisk. Id. ¶ 22. In this case, however, we seem to be requiring only that the officer have expressed a concern for his safety and that he might have thought Defendants were armed and dangerous. I respectfully submit that would be a significant change in the expression of the rule and thus an important change in existing law.
{59} We do not have circumstances in this case that justify a new exception nor support the disposition under the federal constitution. In Sibron v. New York,
{60} It is therefore under the standard stated by the majority that we must analyze the facts of this case. I am willing to assume for purposes of this appeal that Officer Roberts’ testimony should be understood as testimony that he was nervous about his safety because he suspected one of the Defendants might have been armed and if armed would be dangerous. Nevertheless, there is nothing in his testimony to provide a reasonable basis under the relevant cases for the suspicion that one of the Defendants was armed. I agree that State v. Chapman,
{61} In Chapman, after the officer stopped the defendant for a traffic violation and had asked for the defendant’s identification,
Defendant would not make eye contact with the deputy. When defendant handed his driver’s license to the deputy, defendant’s hand was shaking. The deputy then had Defendant exit his vehicle. Because thе deputy noticed that Defendant was becoming increasingly nervous, he asked Defendant if he had any weapons. Defendant told the deputy that he did not have any weapons. Then, in a higher-pitched voice, and in a nervous and aggressive manner, Defendant asked ‘what this was all about.’ The deputy characterized Defendant’s tone of voice and questioning at that point as hostile, nervous, and aggressive. The deputy then asked Defendant whether he had any drugs, drug paraphernalia, or needles on him. The deputy asked this because he was afraid of getting stuck with a dirty needle if he conducted a patdown search. With this question, Defendant’s body began to shake. The deputy asked Defendant to place his hands on the car. Defendant complied, but his hands were shaking so furiously that he was unable to keep them steady. At this point, the deputy, who had no backup, became concerned about his own safety and decided to conduct a patdown search for weapons to protect himself.
State v. Chapman,
{62} The Court of Appeals majority opinion distinguished Chapman from the present case by the degree of nervousness observed by the arresting officer.. State v. Vandenberg,
{63} I appreciate the majority’s analysis of Chapman and the acknowledgment that “[{Importantly, the officer in Chapman proceeded incrementally before frisking the suspect for weapons.” Majority Op., ¶ 26. As the majority explains, it is not nervousness alone that justifies a frisk for weapons, it is nervousness and other specific articulable observations “placed in context.” Id. ¶ 28.
{64} I am troubled, however, by how the majority attempts to equate the facts in Chapman with the facts in this ease by explaining that in each case, “thе situation gradually escalated.” Id. ¶ 30. In Chapman the officer could connect the defendant’s increased nervousness with his answer to the officer’s question of whether the defendant had any weapons and so establish a basis for a belief that the defendant might have a weapon. See United States v. Holt,
{65} An officer must have a reasonable suspicion that a suspect is armed and dangerous at the inception of the frisk. Terry,
{66} It seems to me that part of the “incremental” process present in Chapman is lacking in the present case. The part that is missing is a development of a reasonable suspicion before ordering a frisk for weapons. Perhaps another way of stating my disagreement with the majority as narrowly as possible is to say I think Chapman needs to be viewed even more narrowly. I think the Court of Appeals in this case did that. To rely on Chapman to reverse the Court of Appeals in this ease seems to me not only wrong, see e.g. State v. Pierce,
{67} Through this analysis I do not wish to suggest that Officer Roberts was not without any justifiable response to belie his fears once he observed Defendants’ nervousness. “If the Terry test for a frisk cannot be met, this does not mean that the officer is powerless to do anything in the interest of self-protection.” 2 Wayne R. LaFave et al., Criminal Procedure, § 3.8(e), at 250 (2d. ed.1999). When there is no showing that the suspects are armed, the officer may still require the suspects to get out of the car to diminish the possibility that they can make unobserved movements. See Pennsylvania v. Mimms,
{68} I agree with the majority that this is a very close case. I also recognize the difficulty in second-guessing an officer’s decision to protect him or herself when that officer is confronted with a potentially life threatening situation. The Terry exception allows officers to search or seize a suspect under a reasonable suspicion that the suspеct is armed and dangerous. We apply an objective standard to this reasonableness in order to maintain the exception as an exception and to protect the individual’s rights to be free from warrantless searches except in exceptional circumstances. For these reasons, I would affirm the Court of Appeals’ opinion. A majority of the Court concluding otherwise, I respectfully dissent.
Dissenting Opinion
(dissenting).
{69} I concur in every respect with Justice Minzner’s dissenting opinion; I agree that the State did not meet its burden at the trial level of establishing facts supporting the reasonableness of the warrantless search of Defendants’ persons during the second stop. See State v. Paul T,
{70} I would add to Justice Minzner’s analysis three other pieces of evidence relevant to the totality of the circumstances: (1) the testimony of Officer Roberts that he did not see evidence of weapons or have any concern for his safety during his initial approach of the vehicle; (2) Officer Yost’s testimony that while positioned near the passenger door she observed the occupants’ movements while in the ear and did not see evidence of weapons; and (3) Officer Roberts’ testimony that prior to returning to the car to issue a warning citation, he had already made the decision to frisk for weapons, rendering any observations made after that point irrelevant to whether his decision to frisk for weapons was legitimate.
{71} Officer Roberts testified that when he first approached Defendants, he asked the driver to produce a driver’s license, registration and proof of insurance. He observed the driver reach in the glove box for the documentation and also observed the driver reach into his hip pocket for a wallet, retrieve his license from the wallet, and hand it to him. The officer’s testimony was clear that at this point he did not see evidence of a weapon and did not have any concern for his safety, although the occupants appeared nervous and commented that they had been stopped just five minutes earlier and everything had checked out.
{72} Officer Yost, who heard the BOLO from Deputy House like Officer Roberts, also altered her path of travel to look for Defendants. She admitted that she was looking for a reason to stop them. She passed Defendants on the highway and made a U-turn to catch up with them. When she arrived at the scene, she positioned herself next to the passenger door. She, too, perceived Defendants to be more nervous than one might ordinarily expect. However, her observations of Defendants while Officer Roberts was seated in his vehicle are instructive. She observed movement in Defendants’ car, including the passenger reaching in the glove box, but did not observe any weapons in the glove box. Her testimony, therefore, tended to dispel at least one of the two requirements set forth by the United States Supreme Court for conducting a frisk for weapons— that the officer have a reasonable suspicion the individuals are armed.
{73} Finally, I note that the majority relies on events occurring after the point Officer Roberts announced that he was going to conduct the frisk in order to support his decision to frisk for weapons. Majority Opinion ¶ 30. This reliance, I believe, is misplaced. In fact, Officer Roberts testified that he made the decision to frisk the defendants before returning to the car a second time to issue a warning citation. Thus, even looking at the evidence in the light most favorable to the State, the majority is left with the Officers’ observation of Defendants drumming their fingers on the rooftop, speaking with one another, rolling the windows up and down, and looking back toward Officer Roberts as the only facts which could arguably support an inference that defendants were armed and dangerous. When judged objectively, these facts are simply insufficient to justify the patdown search.
{74} I also agree with Justice Minzner that, given her analysis and conclusion that the motion to suppress should be granted, discussion of the first stop ought to be unnecessary. Since, however, the State and the majority rely on the BOLO from the first stop to justify the frisk for weapons, analysis of the validity of the first stop is required. I write separately because, in my opinion, the first stop was not supported by an objectively reasonable suspicion and thus, likewise, violated the Fourth Amendment. In this respect my dispute with the majority opinion is quite narrow. In deference to our role as an appellate court, I, like the majority, accept the trial court’s credibility determination that Deputy House initially suspected that Defendant was driving a car with a missing license plate. As to the purely legal question of whether or not that suspicion was objectively reasonable, however, I agree more with the Court of Appeals’ opinion than with ¶¶ 40-50 of the Majority Opinion.
{75} Under our jurisprudence, an officer may briefly detain an individual to investigate potential criminal activity without probable cause to make an arrest when that officer has a reasonable suspicion that the law has been or is being violated. That reasonable suspicion is tested under an objective standard; that is, courts must determine whether “the facts available to the officer [would] warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate^]” State v. Madsen,
{76} Deputy House justified his initial stop of Defendants’ vehicle to the trial court on the grounds that until “he pulled right up on the vehicle” he could not see a license plate. Indeed, he testified that he explained to the driver that he needed to move the license plate up to where it was visible. This recommendation was striking, given the testimony of Officer Roberts, who stopped the defendants just a few minutes later and a few miles away from where Deputy House first stopped the car. Officer Roberts repeatedly and unequivocally testified that it was broad daylight at the time he stopped Defendants and that he could easily see the license plate on the vehicle, which was located on the very spot the manufacturer had designed for it. Furthermore, Officer Roberts testified that not only was the license plate visible, but that he was able to determine that the registration was current from the color of the registration sticker on the license plate while he was driving down the road. On these facts, I agree with the trial court that the first stop was “fishy,” but I would go further and agree with the Court of Appeals that it was also invalid. Deputy House’s initial suspicion, though genuine, was not objectively reasonable; it did not, therefore, justify pulling over Defendants.
{77} The majority opinion faults Defendants for not putting on evidence to establish the fact that the license plate, being in the very spot the manufacturer intended, was not nevertheless improperly obscured under NMSA 1978, § 66-3-18(A) (1998). See Majority Opinion, ¶ 42. I am not convinced, however, that the burden to produce such evidence is properly placed on Defendants. Although we are to view the evidence in the light most favorable to the State as the prevailing party below, the State bears the burden of proving specific, articulable facts that, when judged objectively, would lead a reasonable person to believe that criminal activity was occurring. State v. Taylor,
{78} Furthermore, I agree with the Court of Appeals that Deputy House acted unreasonably in pursuing his initial suspicion by not taking any steps to confirm or dispel it before pulling Defendants over and checking the license and registration. See State v. Vandenberg,
{79} In this case, quite unlike in Haywood, an investigatory detention was simply unnecessary to dispel Deputy House’s initial mistaken suspicion. Even a cursory investigation from the road would have apparently shown to Deputy House, as it did to Officer Roberts, that the car not only had a license plate, but that the registration was current. I do not believe we should allow the police to pull over the ear, ask for license and registration, and detain the passengers pending the wants and warrants search in these circumstances. Not requiring such minimal precautions of the police would invite pretextual stops. Requiring it, on the other hand, wоuld maintain a proper balance between protecting individuals’ Fourth Amendment interests and promoting the government’s legitimate interest in investigating crimes. Our case law requires that our decisions maintain that balance. See State v. Reynolds,
{80} Because I conclude that the first stop was invalid, I would not permit the State to rely on the information that Deputy House communicated to Officer Roberts in the BOLO to establish the reasonableness of the patdown search at the second stop. See generally State v. Ingram,
{81} For these reasons, and for all of the reasons asserted by Justice Minzner in her dissenting opinion, I would affirm the Court of Appeals.