dissenting. As I said in my dissenting opinion in Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005), this court should either follow the precedent set forth in Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) and Lilley v. State, 362 Ark 436, 208 S.W.3d 785 (2005), or overturn them.
The majority has once again departed from precedent, this time sending the wrong message to Arkansas law enforcement that reasonable suspicion can be found under virtually any set of circumstances. Here, the initial seizure of Malone’s car was justified because the officer had probable cause to issue a warning ticket for a defective tail light; the seizure became unlawful when “it [was] prolonged beyond the time reasonably required to complete that mission.” See Illinois v. Caballes, 125 S.Ct. 834, 837 (2005). Once the purpose of the traffic stop was over, Officer Wilson had no specific, particularized, and articulable facts on which to base a reasonable suspicion that Malone was committing a felony or serious misdemeanor. See Ark. R. Crim P. 3.1. The State failed to prove either.
In the present case, the majority relies on three factors to support the State’s contention that Officer Brandon Wilson had reasonable suspicion to further detain Malone after Wilson completed the purpose of his initial stop. First, when Wilson asked where Malone was going, Malone replied that he did not know, and that he was going “somewhere in Arkansas.” Second, Wilson said Malone appeared to be shaking uncontrollably, he did not make eye contact, and he answered questions in a very quiet voice. Finally, Officer Wilson testified that the vehicle was registered to a Texas resident who was not in the car.
Each of these factors has a simple and reasonable explanation, and according to our precedent, cannot form the basis for reasonable suspicion. First, in addition to telling Officer Wilson that he did not know where he was going, Malone stated that he was taking his niece, Natasha, to her aunt’s house somewhere in Arkansas. Malone, a resident of Texas, explained that he did not know exactly where he was going because he had never been there before. A perfectly reasonable explanation.
Second, Malone was shaking; however, it should be noted that Officer Wilson stopped the car at 2:29 a.m. on a cold, snowy morning, with temperatures in the thirties. And while Malone appeared to be nervous during the stop, we have repeatedly held that mere nervousness, standing alone, cannot constitute reasonable suspicion of criminal activity and grounds for detention. Lilley, supra; Laime v. State, 347 Ark. 142, 158, 60 S.W.3d 464, 475 (2001).
Finally, the majority opinion emphasizes that the car was not registered to Malone or either of his passengers. What the majority fails to mention in its opinion is that Officer Wilson was presented with proof of insurance showing that Anthony Richardson, one of the passengers, was the insured party on the vehicle. To state the obvious, a person who steals a car normally does not insure it in his own name. To suspect otherwise is illogical. Despite the fact that these three factors had simple and reasonable responses, the majority erroneously validated Officer Wilson’s search premised on his baseless suspicion that the car was stolen.
Contrary to the majority’s conclusions, the precedent set forth in Lilley controls the outcome of this case. The majority correctly sets out the facts in Lilley, but then fails to recognize its binding precedent. In Lilley we held that “it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.” Lilley, supra (citing United States v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998)). Here, the evidence shows that Malone gave reasonable responses to Wilson’s questions; furthermore, neither Malone nor his two passengers had a criminal record; nor were there any conflicting stories given to the officer. In sum, there was not one indication of any illegal activity when Officer Wilson decided to conduct a canine search. As was the case in Lilley, the factors comprising Officer Wilson’s alleged reasonable suspicion are indeed “wholly innocent.”
The majority opinion is also at odds with this court’s holding in Sims v. State,'356 Ark. 507, 157 S.W.3d 530 (2004). In Sims, the State argued that Officer Willey had reasonable suspicion to continue to detain defendant Sims for the purposes of conducting a canine sniff, based on the following facts: (1) Sims appeared nervous and was not listening to what Willey was telling him; (2) Officer Willey observed that Sims began to sweat during the course of the stop; (3) Willey thought it strange that Sims told him that he had just been to look at a swing set at Wal-Mart; (4) when asked where he was headed, Sims, who had Illinois license plates, explained that he had just picked up a friend in Mississippi; (5) when asked for identification, Sims’s passenger could only produce a birth certificate; and (6) the second officer ran background checks on both Sims and his passenger which revealed that both had prior arrests for drugs.
After consideration of the above facts, the Sims court held, that Officer Willey had no particular factual basis which would have given rise to an objective and reasonable suspicion of criminal activity. In support of this decision, we noted that there was nothing odd or unusual about Sims’s sweating in the middle of July. Additionally, the court found that Sims’s comments regarding the swing set could have been a nervous attempt at conversation. The current decision is plainly at odds with the precedent set forth in Sims, as well as Lilley. Under the majority’s logic, it is normal behavior to sweat in the July heat, but suspicious to shake in the middle of a February snowstorm.
Under the totality of the circumstances, it is clear that Wilson lacked specific, particular, and articulable reasons to extend the detention beyond the purpose of the initial stop; thus, the use of the drug dog to sniff Malone’s vehicle violated Ark. R. Crim. P. 3.1. Because the trial court erred in denying Malone’s motion to suppress, I dissent.