dissenting.
I believe that Gilbert has demonstrated clear error in the denial of his motion to suppress. I do not take issue with the initial removal of Gilbert from the vehicle. But, as a preliminary matter, I seriously question whether detention |7of Gilbert was appropriate under Ark. R.Crim. P. 3.1. The officer frankly stated that he had no basis to suspect Gilbert of a crime. Even so, the more fundamental problem I have with this appeal is my disagreement with the majority opinion that there were objective, articulable facts to support the officer Terry-frisking Gilbert.
Our court is to conduct an independent determination based upon the totality of circumstances, reviewing findings of historical fact for clear error, giving due weight to inferences of the trial court. Blount v. State, 2010 Ark. App. 219, at 3-4, 2010 WL 724317. We begin with the presumption that searches conducted without the benefit of a warrant are per se unreasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
Pursuant to Arkansas Rule of Criminal Procedure 3.4, a weapons-search, if warranted, must follow a proper Rule 3.1 encounter. Assuming for the moment that the continued detention was proper, the State failed to present specific, articulable facts that would support a reasonable officer’s belief that Gilbert was presently-armed and dangerous when the frisk took place. The test is an objective one. Pettigrew v. State, 64 Ark.App. 339,984 S.W.2d 72 (1998).
The police set up this roadblock at night, circumstances under the government’s control. The objective, articulable facts that are satisfactory to the judges of the majority opinion are: (1) the lack of a cohesive story of where the men were coming from or going, and (2) the nervous, slow negative response to the question of whether he had “anything illegal or weapons.” The officer did not observe any suspicious bulges in Gilbert’s clothing, Rand his personal belief that Gilbert was lying was not an objective fact. Nervousness is commonplace when confronted by law enforcement. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). There was no dispute that it was part of the police department’s routine to pat down people encountered as a result of these roadblocks.
Arkansas Code Annotated section 16-81-203 gives a laundry list of reasons why an officer might “reasonably suspect.” They include the time of day, area of town, efforts to conceal identity, suspicious cohorts, etcetera. While these factors might lend themselves to continued detention in this case, the objective, articulable facts do not support a reasonable suspicion that Gilbert was presently armed and dangerous.
I disagree with the majority opinion that Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999), supports denial of the motion to suppress. There, the officer became increasingly concerned for his own safety after learning that Muhammad had a criminal record including aggravated robbery. Likewise, in State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992), the officer had noticed a bulge in Barter’s clothing and reasonably suspected him of being involved in drug dealing.
In Pettigrew v. State, supra, the appellant was taken out of a vehicle he was not driving, and officers searched his person. In reversing the denial of suppression we held there to be no reasonable basis for a pat-down search of Mr. Pettigrew. Our court quoted from Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968):
Before [an officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate reasonable grounds for doing so. In the case of the [ nself-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
Because there lacked such objective, particular facts, I dissent.
GLADWIN, J., joins.