(concurring and dissenting):
{16 I concur with the majority's analysis through footnote 8, together with its recital of the law applicable to "frisk" or "patdown" searches or questions about the presence of weapons.
1 17 Since we are bound by the record and caselaw respecting Officer Olsen's apparently limited knowledge, and must approach this case accordingly, I cannot agree with the majority's conclusion that Officer Olsen had reasonable, articulable suspicion to inquire whether Despain possessed any weapons. " "Investigative questioning that further detains the driver must be supported by reasonable suspicion of more serious criminal activity. Reasonable suspicion means suspicion based on specific, articulable facts drawn from the totality of the cireumstances facing the officer at the time of the stop." " State v. Lafond, 2003 UT App 101, ¶ 13, 68 P.3d 1043 (citations omitted), cert. denied, 72 P.3d 685, 2003 Utah LEXIS 59 (Utah 2003). "The legality of a frisk for weapons[ or a question regarding weapons), absent probable cause, is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and [Utah Code Ann. § T7i-7-16 (1999)]." Lafond, 2003 UT App 101 at ¶ 18, 68 P.3d 1043 (footnote omitted).
118 Two basic scenarios warrant a Terry frisk for weapons: (1) the "facts and cireum-stances unique to the particular suspect and/or factual context"; and (2) "the inherent nature of the crime being investigated." Id. at 119 (quotations and citations omitted). Under the first scenario, the "facts and circumstances" that "may give rise to reason*1181able suspicion [that al suspect may be armed" include bulges in clothing or other items appearing to be weapons; or a suspect who denies possessing a weapon, yet aggressively approaches an officer. Id. (quotations and citations omitted). Factors that do not amount to reasonable, articulable suspicion include a suspect's wearing of layered, baggy clothing; or mere nervousness not accompanied with aggressive or threatening behavior. See id. at TI 20-21.
119 Under the second scenario, the types of crimes whose nature "suggest[s] the presence of weapons include: robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics." Id. at 119 (quotations and citations omitted). Lesser traffic offenses do not fit within this category. For lesser traffic offenses we have required "particular facts [to] lead [an] officer to believe that a suspect is armed." Id. (quotations and citations omitted).
20 Neither seenario existed in this case. Officers Slaugh and Olsen stopped Despain because the license plate light on his trailer was not lighted and after they ascertained the trailer was registered to Despain. Officer Slaugh remembered Despain from a pri- or encounter that resulted in narcotics and concealed weapon charges. Apparently, Officer Slaugh did not communicate this information to Officer Olsen, and Officer Olsen testified that he had no knowledge of Despain's prior encounter with Officer Slaugh,. The majority then holds that the following facts establish that Officer Olsen had reasonable, articulable suspicion to ask Despain about weapons: Despain approached the officers "wearing an untucked, overly large shirt that [could have] obscured any object that [he] may have [hidden] in his waistband"; Des-pain exited the cab of his truck, re-entered the cab, closed the door (thus "completely ignor[ing]" the officers), and then re-exited the cab; the officers encountered "an apparently dangerous dog" in the bed of the truck; and the traffic stop occurred at night.
{21 In my view, these cireumstances do not amount to reasonable, articulable suspi-clon. First, there was no evidence that would indicate that Officer Olsen could reasonably believe that Despain possessed weapons on his body. No evidence was presented that Despain's clothing exhibited bulges or any other indications of weapons that would warrant a question regarding weapons. See id. Rather, Officer Olsen could point only to Despain's untucked, overly large shirt that may have obscured any weapon hidden in Despain's waistband. This court has found that "baggy, layered clothing," does not amount to reasonable, articula-ble suspicion by itself. Id. at T21. Similarly, Officer Olsen's belief that Despain may have tucked away a weapon in his waistband, absent any evidence that would otherwise indicate the presence of a weapon, does not amount to reasonable, articulable suspicion. See id. (noting that "officer's testimony that he performed a patdown search because suspect ' "potentially may have been armed" ... add[ed] nothing' to the reasonable suspicion determination because 'in every encounter with a citizen by the police, the citizen may potentially be armed. " (alterations in original) (quoting People v. Dickey, 21 Cal.App.4th 952, 27 Cal.Rptr.2d 44, 46 (1994))); of. State v. White, 856 P.2d 656, 661 (Utah Ct.App.1993) (holding that "simply wearing a winter coat" is not a factor that would indicate whether a suspect was armed).
(22 Second, there was no evidence that Despain aggressively approached the officers. See Lafond, 2003 UT App 101 at ¶ 20, 68 P.3d 1043. Although Despain re-entered the cab when the officers first ordered him to approach them, he eventually complied and walked toward them. While the majority argues that Despain "completely ignored" the officers' request, this characterization is an overstatement. There is no evidence that indicates how long Despain "ignored" the officers' request to approach. The record does show that Despain exited the cab and approached the officers after the officers second order. Logic suggests that Despain re-entered the cab of his vehicle to retrieve documentation, particularly when confronted by two police officers with their dangerous weapons drawn.
123 While it makes sense for the officers to retreat from the "apparently dangerous dog," I fail to see how this creates a reasonable, articulable suspicion that Despain may *1182have been armed. If anything, the presence of Despain's dangerous dog cuts against the notion that Despain would feel the need to carry weapons.
1 24 Finally, the majority factors the nighttime traffic stop into its reasonable, articula-ble suspicion analysis. I fail to see how a nighttime traffic stop creates a reasonable, articulable suspicion that an individual may be armed. Individuals may be armed day or night. Our law requires officers to point to "specific, articulable facts" regarding the suspect to allow an officer to conduct a Terry frisk or to question a suspect for weapons. Id. at 113 (quotations and citations omitted). The time of day of a police encounter adds nothing relevant to the reasonable, articula-ble suspicion analysis.
1 25 Based on the foregoing, I dissent from the majority's conclusion that Officer Olsen had reasonable, articulable suspicion to inquire whether Despain had any weapons.