dissenting.
I respectfully dissent.
This is a driver’s license revocation proceeding pursuant to § 42-2-122.1(1.5)(a)(I), C.R.S. (1993 Repl.Vol. 17) which authorizes the Department of Revenue to revoke the driver’s license of any person it determines operated a motor vehicle when the level of alcohol in the person’s blood or breath exceeds a statutory limit. I have concluded that the circumstances did not justify a stop of petitioner and, thus, the revocation of petitioner’s driver’s license is constitutionally infirm. I would, therefore, affirm the trial court in reversing the order of revocation.
The central issue is whether the officers had an adequate basis for stopping petitioner. An officer may stop and detain a person upon information constituting less than probable cause to arrest, that is, if he observes unusual conduct which in light of his experience leads him reasonably to conclude that criminal conduct may be afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The rationale of Terry was adopted by our supreme court in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971) in which the court held that:
In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose.
Stone v. People, supra, 174 Colo. at 509, 485 P.2d at 497.
The first criterion was ultimately stated as: “[T]here must be an articulable and specific *330basis in fact for suspecting that criminal activity has or is about to take place.” People v. Tate, 657 P.2d 955, 958 (Colo.1983). It is with this first criterion that I am most concerned. The seizure in this case occurred when the deputy pulled up behind petitioner’s vehicle and the petitioner was not free to leave. See Terry v. Ohio, supra.
Neither “probable cause” nor an “articula-ble and specific basis in fact for suspecting that criminal activity is afoot” clearly delineate a point at which an officer may have confidence that evidence obtained will be admissible. These matters must be dealt with on a case-by-case basis.
In the early morning hours of June 9, 1993, petitioner and his wife were separately driving home after a dinner during which both had consumed some alcohol. They were proceeding northbound on Colorado Boulevard in the vicinity of Arapahoe Road with petitioner in the lead. His wife’s driving was observed as erratic by an officer of the Arapahoe County Sheriffs Office and he stopped her vehicle just north of Arapahoe Road.
Petitioner continued northbound and turned into the entrance to a church parking lot on the west side of Colorado Boulevard. He drove into the parking lot behind and to the west of the church, stopped his vehicle facing east, turned off his headlights, but left the parking lights on and engine running. A few minutes later, petitioner pulled forward onto a dirt driveway which ultimately led back to Colorado Boulevard between the church and an adjacent house. From this vantage point, between 100 and 200 feet away from the traffic stop, petitioner observed the roadside sobriety test administered by the officer and telephoned an acquaintance who was an on-duty policeman to seek advice.
Petitioner’s wife, in response to inquiry, advised the officer who had stopped her that the driver of the vehicle stopped in the parking lot across the street was her husband and that he was waiting for her. A deputy responded to the scene to cover the officer and, shortly after arrival, was sent by the officer to contact petitioner. The officer completed the roadside sobriety test of petitioner’s wife, which she passed, and released her.
The deputy approached petitioner’s vehicle from the rear, turned on the overhead emergency lights, and illuminated petitioner’s vehicle with a spotlight. The deputy testified that, from that time forward, petitioner was not free to leave. As he walked toward petitioner’s vehicle, the deputy observed that petitioner was talking on the telephone, told him to hang up the phone, asked for driver’s license, registration, and proof of insurance, and asked petitioner what he was doing there.
With respect to the reason for contacting petitioner, the relevant testimony was given by the deputy, who stated as follows:
[Deputy] We were on a traffic stop, Deputy Wunderlich was, this is not a well lit area. It is 12 — it is after midnight. Traffic stops are dangerous to begin with and when you have another person in a darkened out vehicle who positions his vehicle in a manner so as to observe you presumably, that to me is suspicious. Accordingly that vehicle was contacted if for no other reason than to satisfy ourselves what he was doing in the area at the time.
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[Counsel] Okay. And other than sitting there on private property with parking lights on and examining or watching what you are doing, was there anything suspicious about what Mr. Hampe had done?
[Deputy] Well, just in my mind, you don’t consider that suspicious?
[Counsel] Well, I said anything other than that, is there anything other than that?
[Deputy] No.
[Counsel] Now, and you believed it was suspicious because it was unusual; right?
[Deputy] Very unusual.
[Counsel] Okay. And (sic) but you didn’t have any suspicions that he was committing a crime?
[Deputy] I had a suspicion that he may be about to.
[Counsel] What was he going to do?
[Deputy] I don’t know.
*331[Counsel] So, you didn’t know if he was going to—
[Deputy] It is the element of not knowing that we wanted to satisfy ourselves as to exactly what his purpose was for being with his engine running and the parking lights on and his headlights out facing us while we were on a traffic stop.
[Counsel] Did you—
[Deputy] It aroused our suspicions and our curiosity and just for no other reason than an officer safety standpoint clearly that by law—
[Counsel] Let me ask you where in your report does it mention anything in here about officer safety? ...
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[Deputy] No, the words “officer safety” are not. (emphasis added)
Based on this testimony, the hearing officer concluded that petitioner’s conduct was suspicious and that officer safety was a sufficient basis upon which to stop him.
I certainly agree with the majority that a police officer can be, and too frequently is, a victim of criminal activity. Therefore, the victim of the criminal activity, which the officer has articulable and specific basis in fact for suspecting is about to take place, may be the officer himself.
While I do not wish to engage in word games, put words in the officer’s mouth, or mischaracterize the officer’s testimony, I believe the officer chose his words carefully and testified candidly when he stated “[i]t is the element of not knowing that we wanted to satisfy ourselves as to exactly what his purpose was,” and chose the word “curiosity.” Perhaps of significance is the absence of any evidence in the record that the deputy took any precautions in addition to those normally taken in a traffic stop.
The totality of the evidence leads me to conclude that the officers had, if anything, an undifferentiated and non-specific concern for their own safety, or that criminal activity was afoot of which they were the potential victim. That undifferentiated and non-specific concern was, or should have been, substantially ameliorated when the officers were advised by petitioner’s wife as to who was in the suspicious vehicle and the reason that person was observing the roadside sobriety test. The position of petitioner’s vehicle and its distance from the roadside test were such that neither the vehicle nor its occupant constituted, without more, any immediate or direct threat to the officers’ safety. There is no evidence in the record that these events occurred in a “high crime area” or that there had been any reports of criminal activity in the vicinity.
In this instance, once the decision was made to contact petitioner, the officer placed both himself and petitioner in a compromising and potentially very dangerous situation. The officer approached an occupied vehicle at night in a relatively isolated location. While precautions were undoubtedly appropriate under the circumstances and enhanced the safety of both parties, they also necessitated that an “investigatory stop” occur when an informal inquiry might have sufficed under other circumstances.
An officer may conduct a reasonable search in order to assure officer safety after a valid investigatory stop and renders any resulting evidence admissible. See Terry v. Ohio, supra; People v. Sutherland, 886 P.2d 681 (Colo.1994); People v. Carlson, 677 P.2d 310 (Colo.1984).
Terry, indeed, dealt with a pat-down search predicated on concern for officer safety after a valid investigatory stop had been initiated on other grounds. The holding in Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911, stated:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a *332carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
However, conduct which is suspicious or merely engages the curiosity of an officer is not, without more, a valid basis for a stop. People v. Thomas, 660 P.2d 1272 (Colo.1983); People v. Rahming, 795 P.2d 1338 (Colo.1990).
In Thomas, the defendant, who was known to the arresting officers, was observed in the parking lot of a commercial establishment. After making eye contact with the officers, the defendant started walking, then running, toward an adjacent structure which was occasionally used as a gambling establishment. The officers gave chase first in their vehicle and then on foot. As he ran, the defendant put his hand in his pocket and after entering the budding was observed throwing away objects removed from his pocket which were later identified as balloons of cocaine. The defendant was arrested, charged with possession of cocaine, and the trial court suppressed the evidence. Our supreme court affirmed, stating in part:
Viewed from a purely objective level of observation, the act of running a short distance to a nearby budding, with or without one’s hand in the pocket, is an action so universal in character that one can only speculate as to its motivating source. Even when the act of running is motivated by an effort to avoid contact with the police, it stid does not constitute the type of specific and articulable fact that is constitutionally sufficient to justify a stop.
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The facts known to the officers when they commenced their chase of the defendant did not satisfy the threshold constitutional requirement of reasonable suspicion.
People v. Thomas, supra, at 1275-76.
In Rahming, the officer observed three young men dressed in clothing identified with a gang leaving an apartment budding known to be occupied by members of a rival gang. Two of the young men broke and ran back into the building upon seeing the officer and the defendant remained. After the officer left the immediate area, the young men got into a vehicle and drove away. The officer fodowed the vehicle to a convenience store parking lot without observing any traffic violations and made contact in the parking lot. After searching the defendant, who was driving, for weapons, and finding none, the officer requested and was granted permission to search the trunk of the vehicle where he found a black and white television and jewelry. The officer was then informed, by radio, that the vehicle had been involved in a burglary and the defendant was arrested. The trial court suppressed the items found in the trunk and the supreme court affirmed.
The prosecution, in Rahming, relied on a number of facts as a basis for forming the requisite articulable suspicion including the dress of the individuals, the reputation of the apartment complex, and the reaction of the two individuals who ran upon observing the officer. The supreme court stated that these collective circumstances, most particularly, the wish to avoid contact with the police did not, without more, justify an investigatory detention.
Applying these principles, I agree with the trial court that the circumstances here did not justify an investigatory detention. Therefore, I would affirm the district court.