concurring and dissenting:
Upon review, I join in the majority’s reversal of appellant’s obstruction of justice conviction. Further, I must agree with the majority’s conclusion that the driver freely consented to the search on his vehicle. Clearly, the present case is controlled by our recent decision in Commonwealth v. Hoak, 700 A.2d 1263 (Pa.Super.1997)(en banc).1 However, I must dissent from the majority’s *505determination that the Terry search of appellant was legal.
The majority correctly concludes that appellant and the driver of the vehicle were free to leave after the traffic warning was issued and the vehicle registration returned to the driver. Further, the majority correctly determined that the driver voluntarily consented to a search of the vehicle. However, I must dissent from the majority’s conclusion that the police officer possessed a reasonable belief that criminal activity was afoot such that the officer was permitted to frisk appellant for weapons.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “the United States Supreme Court granted authority to police officers to pat down or frisk a suspect for weapons based only upon the reasonable belief that criminal activity is afoot, and that the suspect may be armed and dangerous.” Commonwealth v. Lateef, 446 Pa.Super. 640, 667 A.2d 1158, 1161 (1995) (citations omitted). Police officers must point to specific and articulable facts which indicate that the person whom they intend to frisk may be armed and dangerous. Commonwealth v. Dorsey, 439 Pa.Super. 494, 654 A.2d 1086 (1995); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968, 969 (1987). The determination is based upon the totality of the circumstances, as seen through the eyes of the trained police officer. Commonwealth v. Johnson, 444 Pa.Super. 289, 293, 663 A.2d 787, 789 (1995).
Herein, the majority, in determining that the officers possessed reasonable suspicion to search appellant, cited the following facts: 1) The vehicle was stopped after midnight; 2) Neither the driver nor appellant possessed any identification; 3) Appellant gave the police officers a false name; 4) Appellant’s statements to the police were vague and contradictory with his own statements and those of the driver; 5) The vehicle was registered in the name of a third party whom neither appellant nor the driver knew how to contact; and 6) Appellant was “abnormally nervous.” I cannot agree that those facts in combination were sufficient to amount to reasonable suspicion to support a search of appellant’s person for weapons, especially when I consider that the officers, only seconds earlier, were prepared to permit appellant and the driver to leave the scene of the traffic stop with only a warning for speeding.
It is well settled that unparticularized suspicions of inarticulable hunches are insufficient to justify searches and seizures. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A2d 177 (1992). Therefore, I am convinced that the officer’s belief that appellant was acting “abnormally nervous” is not sufficient to arouse objective suspicion that criminal activity was afoot. Cf., Lopez, supra (officer’s concern over driver’s demeanor and responses to questions was not sufficient to justify a seizure). More importantly, since appellant and the driver were free to leave the scene after the officers returned the vehicle registration and issued a traffic warning, I must conclude that the police themselves believed no criminal activity was afoot.
If they feared for their safety, why were the officers prepared to allow appellant and the driver to leave? Perhaps the more pertinent question is why were the driver and appellant given the option to leave the scene with only a speeding warning, if, in fact, the officers possessed a reasonable belief that criminal activity was afoot and the officers feared for their safety? As this court made clear in Hoak, supra, a person who is free to leave the scene after being given a traffic citation is nothing more that a private citizen who is involved in a consensual encounter with a police officer. I acknowledge that a consensual encounter may escalate (based on events which occur during the consensual encounter) into one in which police have sufficient grounds to suspect criminal activity and may perform a Terry search. However, I submit that a person engaged in a consensual encounter may not be searched, absent some additional facts which given rise to reasonable suspicion of criminal activity. Herein, the Commonwealth does not cite to any facts which took place after appellant was free to leave which gave rise to the officers’ safety concerns.
Clearly, the officers were permitted to order appellant and the driver from the vehicle during the traffic stop, despite the lack of an articulable basis to believe that criminal ac*506tivity was afoot or that the occupants were armed and dangerous. Commonwealth v. Brown, 439 Pa.Super. 516, 654 A.2d 1096 (1995), citing, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Mimms II). However, if appellant’s and the driver’s cooperation with the police by authorizing a search of their vehicle is sufficient to raise a reasonable suspicion that criminal activity is afoot, then we, in effect, have extended Mimms II and set forth a per se rule that all persons may be searched for weapons whenever they are engaged in a consensual encounter with the police. Although I am keenly aware of the dangers faced by our police officers during traffic stops, I do not believe such an intrusion upon the individual’s right to privacy is warranted, and, consequently, I am convinced that the majority’s holding impermissibly overextends the perimeters of Terry.
. While I apply our controlling decision in Hoak, supra., to the case before us, I note that I continue to question its holding for the reasons set forth by the Honorable Justin Johnson in his Dissenting Opinion in Hoak, supra.