dissenting.
I respectfully dissent. I would find that the defendant’s Fourth Amendment rights were not violated, and I would affirm the district court.
I cannot join in the approach taken by the majority in Section B for two reasons: First, I think the majority fails to address fully the factual findings made by the magistrate and fails to view the record in a light most favorable to those findings. Second, I think the majority erroneously discounts the factors underlying the officer’s reasonable suspicion and reasonable concern for his safety.
Facts. The starting point for appellate review of the district court’s ruling must be the facts as determined by the finder of fact. Based on the trooper’s entire testimony, the magistrate made extensive findings of fact in this case. He found that Trooper Bushnell noticed that the windows on the defendant’s truck were very dark. The trooper testified that the windows were dark enough that he could not see inside the truck. Bushnell decided to stop the vehicle for a window-tint violation. The trooper, who was traveling south, turned around and pursued the vehicle which was northbound. The vehicle was *884traveling very fast, and it took the trooper eight to nine miles to overtake it. The trooper pulled alongside the vehicle to confirm that the windows were too dark. When he did so, the defendant “pulled [his] vehicle about two thirds into the emergency lane even though the trooper had not signaled the vehicle to pull over or turned on its lights. The trooper considered the conduct veiy unusual and suspicious. The trooper pulled behind the defendants’ vehicle and then it reentered the traffic lane and sped up.” The trooper believed the driver might be under the influence of alcohol or have some other problem. Bushnell turned on his lights and stopped the vehicle for the window tint and improper lane operation. Bushnell approached the driver, defendant Fernandez, and asked for a driver’s license and registration and told him the purpose of the stop. The magistrate found that “[a]s Fernandez produced his driver’s license his hand trembled. Fernandez was unusually nervous which with the erratic driving caused the trooper to believe something was ‘afoot.’ When the trooper asked Fernandez why he was so nervous, the trooper did not receive a satisfactory explanation.” The trooper testified that he discussed with the defendant whether the defendant was driving under the influence and also questioned the defendant as to why he drove off the road in the manner that he did.
The magistrate determined that Trooper Bushnell does not have a threatening presence, that he is of modest height and build, and that he tried to put Fernandez at ease during the stop. The magistrate indicated that Fernandez’s nervousness “did not abate” during the stop, was “excessive,” and that “this was unusual.” Additionally, Mr. Blanch, who was asleep when Bushnell first approached the driver, awoke and appeared startled upon seeing Bushnell. Blanch popped up in the seat and sat rigidly. He continued to sit erectly throughout the encounter. His reaction was unusual. The magistrate found that “Trooper Bushnell was very suspicious and concerned about his own safety.” Bushnell testified that under the circumstances the fact that there were two adults in the truck caused him some concern for his safety. The magistrate noted that Bushnell was sufficiently concerned about his safety that he called for backup. Bushnell also radioed for an NCIC check on the vehicle and occupants, but he did not receive a reply. Bushnell wrote up a warning citation for the defendant. Sergeant Mangelson, the backup officer, arrived in six to seven minutes. When Mangelson arrived, Bushnell returned to the vehicle and proceeded to ask Fernandez if there was a gun in the vehicle. He also asked if there were any illegal drugs. When Fernandez stated that neither of these items were present in the vehicle, the trooper asked for and was given consent to search for them.
Investigative Detention. The majority concludes that the trooper’s decision to detain the defendant for a few minutes for the purpose of asking about guns or drugs was based on nothing more than the trooper’s unparticularized hunch of wrongdoing. I concede that selected portions of the trooper’s testimony at the suppression hearing can be used to support this view. The trooper cited a feeling of “tension in the air,” his “sixth sense,” and his belief that “something was afoot” as partial explanations for his conduct. Clearly, such testimony by itself would not constitute specific and articulable facts sufficient to justify a detention. We are required to look at all of the evidence, however, to determine if the facts warranted a reasonable officer in suspecting that criminal activity was afoot or in believing that his safety was in danger. Moreover, we are required to uphold the suppression ruling if there is any reasonable view of the evidence to support it. See United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989).
Given the “minimal level of objective justification” that is required for a brief detention of the type at issue here, see INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), as well as our deferential review of the facts found by the magistrate, I have some trouble with the approach taken by the majority opinion. The majority discounts the significance of Mr. Fernandez’s erratic driving by stating that it “was sufficiently minor to warrant only a warning citation.” Whether or not the trooper issued a warning citation is beside the point. The point is that *885the defendant’s conduct provided a specific factual basis that contributed to a finding of a reasonable suspicion and a reasonable concern for the officer’s safety. The defendant’s conduct was considered by the officer, who has made thousands of traffic stops, to be unusual and erratic. Under the circumstances, the trooper reasonably attached a certain degree of suspicion to the defendant’s actions. The majority is confident from its reading of a typed transcript that the defendant’s actions were innocuous, explaining that “it is highly plausible that Fernandez thought he was being pulled over” and that “an innocent cautious driver might well believe an officer who pulls along beside him on the highway and stays there looking at him intends for him to pull over.” Whether or not this speculative interpretation of the record is true,1 in either ease it is clearly not dispositive. It is always possible to construct an innocent explanation for what can also be reasonably interpreted as behavior indicative of criminal activity. Cf. Terry v. Ohio, supra (Three men walking up and down a street, looking in a store window). Moreover, such speculation misses the mark because what the driver may or may not have been thinking is not the proper focal point for purposes of the Fourth Amendment.
The central question is whether the officer reasonably attached any suspicion to the defendant’s actions. The majority’s dismissal of the erratic driving as a factor of any significance seems to me to substitute this court’s judgment for that of the officer in the field — who was called upon to make a quick decision based upon his training and experience. See United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (the court “should take care to consider whether the police are acting in a swiftly developing situation, and in such eases the court should not engage in unrealistic second-guessing.”) Thus, the majority is able to declare that “[tjhis is not a case where a defendant’s evasive action ... is an objective indication of something more serious than a minor traffic infraction” only by substituting its judgment for that of an officer who has made thousands of traffic stops and whose testimony indicated that the defendant’s actions were very unusual and caused him concern for his safety. In my view the majority’s approach is inconsistent with the Supreme Court’s view of the reasonable suspicion analysis:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).
The officer in this case was legitimately concerned about the reason for the defendant’s erratic driving. Cf. United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (In determining whether there is reasonable suspicion to believe that a car contains illegal aliens, “[t]he driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”) The officer’s testimony indicated that based on the driver’s actions he believed that the driver may have been under the influence of alcohol or had some other problem.2 He was concerned as to why the defendant acted in such a manner at the mere sight of an officer. The majority correctly notes that Fernandez did not appear to he under the influence of alcohol when Bushnell talked to him. What the majority fails to add is that nothing that occurred during the course of the stop *886served to dispel the officer’s concerns or to explain the reason for the defendant’s actions. To the contrary, Mr. Fernandez’s and the passenger’s excessive nervousness only increased the officer’s legitimate concerns.
The majority also undertakes what may best be described as a systematic discounting of the significance of the nervous behavior exhibited by the defendant and the passenger in the course of this traffic stop, noting that “we have never held that by itself [nervousness] creates a reasonable suspicion of criminal activity.” By the same token, we have never held that nervousness cannot be sufficient to support a reasonable suspicion. Rather, the significance of the particular behavior at issue must be determined from the totality of the circumstances on a case-by-case basis.
I disagree with the majority’s approach because I think the findings made by the magistrate were based on testimony of the specific behavior exhibited during the stop. That behavior contributes, at least to some degree, toward a finding of reasonable suspicion. The majority asserts (and it is undoubtedly true) that most citizens, whether innocent or guilty, will exhibit some signs of nervousness when confronted by a law enforcement officer. For that reason I agree that it is appropriate to view conclusory testimony that a defendant was “nervous” with a certain degree of caution, lest the officer characterize as suspicious circumstances that describe a very large category of presumably innocent travelers. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980). The unmistakable conclusion of the magistrate, however, was that the nervousness exhibited by the driver and the passenger in this case was excessive under the circumstances and went beyond what people normally show during a routine traffic stop. That conclusion was based upon the officer’s testimony — which described specific behavior that could fairly be considered as excessive nervousness. In making this assessment the officer took into account the fact that, in his experience in making approximately five thousand traffic stops, he had seen many persons show signs of anger or slight nervousness. When viewed in the light of what common sense tells us about human behavior, the excessive nervousness shown in this case can rationally be viewed as an indication of possible criminal activity. Cf. United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (“[C]ommon sense and ordinary human experience must govern over rigid criteria.”).
The majority finds the district court’s reliance upon nervousness particularly troubling because the record contains no evidence that Bushnell “had any prior knowledge of Fernandez or Blanch to make an evaluation of their behavior.” This discounting of what the officer observed, in my view, is inconsistent with the maxim that ordinary human experience is to govern over rigid criteria. See Sharpe, supra. If such a circumstance were sufficient to prevent reliance upon nervousness then it would only rarely if ever be appropriate to consider such behavior. Yet, many of our decisions have relied upon signs of nervousness as supporting reasonable suspicion despite the fact that in most if not all of these cases the detaining officer had no prior knowledge of the suspect’s mannerisms. See e.g., United States v. Soto, 988 F.2d 1548 (10th Cir.1993) (the defendant’s nervous appearance contributed to the reasonable suspicions of the officer); United States v. Bell, 892 F.2d 959, 967 (10th Cir.1989) (defendant became “visibly nervous”); United States v. Walraven, 892 F.2d 972, 975 (10th Cir.1989) (defendant’s “nervous mannerisms”). These cases reflect what common sense and experience tell us about human nature: a person who exhibits signs of unusual and excessive nervousness when confronted by a law enforcement officer may be involved in criminal activity.
In assessing the validity of the detention in this case, we must consider “the totality of the circumstances — the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Thus, the significance of the defendant’s and the passenger’s nervousness must be assessed in light of the erratic driving exhibited earlier by the defendant — not as completely separate factors. Taken together, I think the officer pointed to specific facts that justi*887fied a rational inference that criminal activity was afoot. The circumstances here involved a “series of acts, each of them perhaps innocent” if viewed separately, “but which taken together warranted further investigation.” Terry, 392 U.S. at 22, 88 S.Ct. at 1881. I also think the officer’s legitimate concerns for his safety made it reasonable for him to detain the defendant briefly (for six or seven minutes at most) until backup arrived and then to ask whether there were any guns or drugs in the car. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (“A brief stop of an individual, in order to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”) This is particularly true in light of the dangers that police officers face in making traffic stops. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
The district court relied upon United States v. Walraven, 892 F.2d 972 (10th Cir.1989), as support for the conclusion that the seizure in this case was reasonable. That reliance was appropriate. In Walraven, a deputy sheriff was erroneously informed that the license plate of a car in which the defendant was traveling with another man did not match the vehicle. The deputy turned on his flashing lights and twice gave blasts from his siren but the vehicle failed to pull over. The car traveled on approximately a mile and a half before pulling over, during which time the two men in the car appeared to be talking and one of them looked back at the deputy. After the car finally stopped, the officer conducted an inquiry and determined that the driver had a valid license and the car was appropriately registered to the defendant. The officer nevertheless detained the defendant for two or three minutes until a backup officer arrived and then proceeded to ask whether there were any guns or drugs were in the car and whether he could search for those items. Based upon the failure to promptly stop the car, the nervous mannerisms of the men in the car, and the officer’s law enforcement experience, we concluded that the officer had an objectively reasonable suspicion of criminal activity or a legitimate concern for his safety sufficient to warrant this brief detention.3 We noted that the officer “sought only to maintain the status quo momentarily before questioning the men in the presence of [a backup officer].” Id. at 976. We also observed that the fact that the officer waited a few minutes for his backup to arrive “was nothing more than reasonable police procedure.” Id. Finally, we concluded that the officer was entitled to request permission to search the vehicle for guns or illegal drugs. Id.
The majority distinguishes the instant ease from Walraven by stating that the defendants in Walraven “failed to pull over promptly when the officer activated his overhead lights and siren.” Maj.Op. at 879, n. 4.4 While that statement is accurate, it hardly explains why the investigative detention in *888Walraven was justified but the investigative detention in this case violated the Fourth Amendment. I see no material distinction between the situation confronting the officer in this case and the one confronting the officer in Walraven.5
In sum, I would find that the officer’s brief detention of the defendant for the purpose of asking whether there were firearms or illegal drugs in the car was reasonable and I would affirm the district court.
Section A — Pretext Stops.
The majority’s ultimate holding in Section A that “we expressly decline to decide” the pretextual stop argument would seem to make any discussion of pretext unnecessary. However, the majority’s analysis of the evidence and its conclusion that there is considerable evidence “suggesting that this stop may have been pretextual” appears to me to be based on an expansive view of the pretext doctrine that is at odds with Supreme Court precedent. Moreover, the inclusion of an extended discussion of the pretext issue suggests that it played some role in the resolution of this case. In my view, the magistrate’s finding that this stop was not pretex-tual is supported by the evidence. In United States v. Deases, 918 F.2d 118, 121 (10th Cir.1990), we held that a district court’s finding that a stop was not pretextual cannot be reversed unless it is found to be clearly erroneous. In light of this standard of review it seems peculiar that the majority feels compelled to assess the evidence and to comment that “it is not a foregone conclusion” that a reasonable officer would have stopped the defendant’s truck. Maj.Op. at 877.
In United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), this court indicated that the “arbitrary action” associated with “unfettered police discretion as to whom to stop” for traffic violations “is unreasonable within the meaning of the Fourth Amendment.” Id. at 1516. The court expressed concern that officers could use some legal justification to stop a person in order to investigate unrelated criminal matters. The court therefore adopted a standard for determining whether a stop is “pretextual” and, consequently, unconstitutional: “a court should ask ‘not whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ ”6 Id. at 1517 (emphasis in original). The court emphasized that this standard did not inquire into the actual state of mind of the officer making the stop but “properly preserves the Supreme Court’s requirement of an objective inquiry into Fourth Amendment activity.” Id.
I must frankly confess that I have some difficulty understanding how a court is supposed to determine whether “a reasonable officer would have” made a stop for a particular violation “in the absence of the invalid purpose.”7 Up until now I had at least understood Guzman to stand for the proposition that a stop which is supported by probable cause and which is based on some violation that the police have enforced with at *889least a modicum of regularity would not be considered pretextual. See id. at 1518 (“If police officers in New Mexico are required to and/or do routinely stop most cars they see in which the driver is not wearing his seat belt, then this stop was not unconstitutionally pretextual.... Conversely, if officers rarely stop seat-belt violators absent some other reason to stop the car ... [the stop would be pretextual].”) Such is apparently not the ease, however, given that the majority’s “evidence suggesting this stop may have been pretextual” consists primarily of statistics showing that Trooper Bushnell and other members of his unit regularly issue warnings or citations for violations of the type at issue in this ease. The record indicates that this particular unit issued a total of 172 citations and warnings for improperly tinted windows for the five-month period 7/91 to 11/91. Although the specific inference the majority divines from these statistics is unstated, “evidence of pretext” arises, as I understand it, from the fact that Trooper Bushnell has issued “significantly more” warnings during this five-month period than have his fellow officers.8
If the Guzman standard would require us to view the stop in this case as unconstitutional simply because statistics show that this particular trooper has issued more warnings than other troopers, then I respectfully suggest it may be time to re-examine the pretext doctrine set forth in Guzman. Examination of such “evidence of pretext” is in actuality nothing more than an inquiry into Trooper Bushnell’s subjective state of mind when he made the decision to stop the defendant in this case.9 Labeling the statistics relied upon to form this conclusion as “objective evidence” does nothing to alter the subjective nature of the inquiry. I believe this approach conflicts with the Supreme Court’s stated view of Fourth Amendment analysis:
Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s action in light of the facts and circumstances confronting him at the time,” [cite omitted] and not on the officer’s actual state of mind at the time the challenged action was taken.
Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370 (1985). See also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22 (1983) (the fact that customs officers boarding a ship pursuant to statute authorizing a check of the vessel’s documentation suspected that the vessel carried marijuana was not a violation of the Fourth Amendment).
The Sixth Circuit recently abandoned the Guzman test and joined those circuits holding that so long as the officer has probable cause to believe that a traffic violation has occurred, the resulting stop is not unlawful *890and does not violate the Fourth Amendment. United States v. Ferguson, 8 F.3d 385 (6th Cir.1993) (en banc). See also United States v. Hawkins, 811 F.2d 210, 213 (3rd Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Rusher, 966 F.2d 868, 876 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992); United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (en banc); United States v. Trigg, 925 F.2d 1064, 1065 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991); United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1992). In so doing the Sixth Circuit opined that Guzman’s focus on the “objective evidence” of general police practice is in reality “simply an aggregation of the subjective intentions of the officers in the regions.” Given the majority’s evaluation of the record in this case, I would be inclined to agree that the Guzman test has become an inquiry into the officer’s subjective state of mind and is inconsistent with the Supreme Court’s interpretation of the Fourth Amendment. I see nothing in the record that would justify a conclusion that the stop of the defendant for the traffic violations he committed was an unreasonable seizure. I would affirm the district court.
. If Mr. Fernandez thought the officer intended for him to pull over, why did Mr. Fernandez speed up and pull back onto the road when the officer pulled in behind him?
. The majority states that Bushnell testified that "this was not one of the reasons he actually stopped Fernandez.” The trooper testified that he made the stop because of the improper lane change and the tinted windows. He did not testify, as the majority's statement might suggest, that he was unconcerned with the reason for the defendant’s erratic driving.
. The Walraven opinion does not state explicitly whether the detention was justified by the officer's reasonable belief that the men were committing a crime or by the officer's "perceived threat to his own well-being.” Id. at 976.
. In a footnote the majority contends that Walra-ven is distinguishable by other facts as well. The majority states that the suspects in Walraven “conferred with one another and actively observed the police officer during the pursuit” and the court notes that such intentional flight is "circumstantial evidence of guilt.” This point only underscores the reasonableness of the detention in the instant case. In Walraven, although there were no facts pointing specifically to the presence of drugs in the defendants’ car, we found that the defendants' failure to stop (together with their nervous mannerisms and the officer's law enforcement experience) gave rise to a reasonable suspicion that the defendants were involved in criminal activity. See id. at 975-76. An investigative detention was warranted in Walraven because the officer was legitimately concerned with the reason why the men failed to pull over immediately and why they were conferring with each other. Similar concerns were implicated in this case by the defendant's erratic driving and his nervous behavior. The trooper was legitimately concerned with the reason why the defendant drove over into the emergency lane when he saw the trooper and then sped up and pulled back onto the highway when the trooper pulled in behind him.
The majority also states that the officer in Walraven "reasonably suspected that the defendants were drug couriers," Maj.Op. at 879, n. 4, although the majority does not explain why it was reasonable for the officer in Walraven to have such a suspicion. As in the instant case, there were no facts in Walraven pointing specifically to the presence of drugs in the defendants’ car. Additionally, the majority fails to mention *888that in Walraven the defendants' nervous mannerisms were relied upon by this court to support a finding of reasonable suspicion. The majority does not explain why the nervous mannerisms of the defendants in Walraven supported a reasonable suspicion that the defendants were drug couriers but similar behavior is of "limited significance” in this case.
.The majority's intimation that the district court was somehow confused by cases involving invalid registrations is puzzling. See Maj.Op. at 879-80. No such confusion appears in the district court's opinion. In fact, the district court's reliance upon United States v. Walraven suggests exactly the opposite. The primary issue addressed by this court in Walraven was whether there was a legal basis for the defendant’s continued detention after the trooper confirmed that the defendant’s vehicle registration was valid. Id. at 975. The district court's particular reliance on Walraven thus shows that the court understood perfectly well the nature of the issue before it.
. This standard was adopted from United States v. Smith, 799 F.2d 704 (11th Cir.1986), a case in which the officer who made a stop did not have probable cause to believe that a traffic violation had been committed. See id. at 708-09.
. Common sense suggests that an officer may observe a large number of traffic violations in a given day and must make a choice as to which violators to stop and which ones not to stop. Any number of factors — including legitimate policy considerations — could influence an officer's decision to make a particular stop. How are we to determine when a reasonable officer "would have been uninterested in pursuing the lesser offense" absent a hope of finding a greater offense?
. Apparently in order to amplify the differences between Trooper Bushnell and the other troopers in his unit, the majority focuses on the number of warnings previously issued and disregards the number of formal citations issued by the troopers. We recently rejected such an approach when it was asserted by an appellant:
Defendant insists that by the officers' own testimony, the Denver police do not normally issue written tickets in the circumstances present here. But whether the officers would normally issue formal written tickets for such conduct is immaterial. The pertinent issue is whether a reasonable officer would have made the stop for similar conduct, not whether the officer would have issued a formal citation or merely an informal warning.
United States v. Harris, 995 F.2d 1004, 1005 (10th Cir.1993).
Also, in addition to its appraisal of various statistics, the majority describes the manner in which Bushnell made the traffic stop in this case and states: “We question whether such a stop would be 'business as usual' for a reasonable officer under the same circumstances." See Maj. Op. at 877. Although the specific reason for the majority’s disapproval is not spelled out, the fact that the trooper turned around and pursued the defendant's truck for eight or nine miles is apparently contrary to the majority’s view of proper law enforcement procedure. It is not clear whether the majority considered the fact that it took the trooper nine miles to overtake the truck because of the rate of speed at which the defendant was traveling.
. Along these same lines, I am unclear as to the import of footnote two of the majority opinion, especially the comment "we find it interesting that Bushnell could not recall Fernandez's response when Bushnell asked why he pulled into the emergency lane.” I do not understand the relevance of this observation. Moreover, the ten- or of the remark suggests that this court is engaging in a factual finding concerning Bushnell's credibility — a finding that appears to be at odds with the conclusions of the finder of fact in this case and which is also at odds with the supposedly objective nature of a pretext inquiry.