dissenting. I am concerned about the erosion of every citizen’s right against unlawful search and seizure under both the Arkansas and the United States Constitutions. We may not abdicate our duty to protect the constitution and our citizens by allowing law enforcement officers to engage in unconstitutional conduct simply because as law enforcement officers their hunches often payoff. The analysis under our constitution and under the federal constitution in search and seizure cases should not be reduced to simply determining whether the appellant is suspicious in some broad, undefined context, but rather, whether the facts infer the required proof for the action to be taken, in other words, whether the required proof of reasonable suspicion or probable cause is present.
The majority decides this case by finding reasonable suspicion to justify the continued detention and canine sniff. The majority finds the required reasonable suspicion based upon the following facts:
1. Laime’s lie about his criminal background;
2. Dodd’s and Laime’s ignorance or refusal to state their destination and names of friends they were to meet; and,
3. Laime’s increasing agitation.
Other facts are discussed. The majority states Laime’s invocation of his right against unlawful search and seizure cannot be the sole basis for probable cause to search, and then states the assertion of one’s constitutional rights is not a weapon to be used against a suspect. What is stated is not clear and implies invoking one’s constitutional rights is a fact that weighs in favor of reasonable suspicion. Other facts are also discussed. The majority wisely ignores Ramsey’s assertion that reasonable suspicion may be based upon when someone chooses to eat snack foods. However, we ought to take special note of Ramsey’s assertion about the snack foods, for it shows us ever more clearly his intent in this matter. Ramsey had a hunch, and it was a correct hunch. His intent was to stop the van and search it. Once Ramsey stopped the van, he attempted to develop facts to justify his detention of Laime and the search of the van.
In summary, the facts show Laime declined to divulge details of the trip, of his criminal past, and that he was nervous. Nothing about these facts has any tendency in fact to show there was any contraband in the van. The facts might infer Laime was nervous and felt he would only make things worse by divulging information, especially information about his past. They could infer Laime was frightened. Nervousness and agitation could mean any number of things. I don’t believe these facts under any reasonable analysis can be argued to be “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” Potter v. State, 342 Ark. 621, 627, 30 S.W.3d 701 (2000). This is the required inference. The facts support no such conclusion nor any conclusion even close to reasonable suspicion.
The facts relied upon in this case do infer something. They infer something about Ramsey’s conduct. We cannot ignore Ramsey’s conduct as it relates to the alleged facts he gives in support of his continued detention of the van after his reason for stopping the van on the basis of a lack of registration was resolved. First, I note it is obvious any purpose in making a lawful stop based on a report from Texas that the van lacked current Texas registration was completed prior to appellants’s detention and the execution of the canine sniff. This is clearly so because Ramsey told Laime and Dodd they were free to go. United States v. Beck, 140 F.3d 1129 (8th Cir. 1998). Thus, in order to continue to detain appellants, there had to be events that transpired during the traffic stop that gave rise to reasonable suspicion. Id. Therefore, the court had to then determine whether Ramsey had a reasonable, articulable suspicion that appellant’s van was carrying contraband or that other criminal activity may have been afoot. Id. While it is true that Ramsey’s subjective intent in the stop will not invalidate the stop if there are other valid reasons for the stop, the facts developed during that stop do not support continued detention. Herein lies the majority’s fundamental error in its analysis. The Fourth Amendment to the United States Constitution and the Arkansas Constitution will not allow the detention of the appellants on the basis that they were acting suspicious in Ramsey’s subjective opinion. When all the pretense and fiction created by Ramsey is stripped away, it is facially apparent that the canine sniff was carried out because Ramsey wanted to search the van. That was his intent from the beginning. Ramsey asserts he stopped the van for impeding traffic flow; however, his own account contradicts that this could have been a valid concern. He states the van was traveling about 60 mph in a 70 mph zone while passing two tractor trailer rigs. He further states that none of the traffic in the area was moving at 70 mph. So we must ask at this juncture, where was the impediment to traffic? Ramsey notes that two vehicles were behind the subject van. He then asserts the van was holding them up. For authority he cites to Ark. Code Ann. § 27-51-301 (b)(Supp. 2001), “driving continuously in the left lane. ...” Obviously this was not occurring. Ramsey admits the van was passing the trucks. Ramsey, however, called in the license of the van and found it was not listed as registered. This gave him the right to stop the van. However, once that issue was resolved, Ramsey detained them still based on the above noted facts. Testimony by Ramsey is conflicting, and does not support the conclusion that Ramsey had “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” Potter, 342 Ark. at 627.
The facts of this case are simple to understand. Ramsey stopped the van because he intended to search it. Ramsey asserts Laime was agitated. It seems so obvious that it need not be argued that an ordinary, reasonable person would rightfully become agitated when, without any cause whatever, he is asked by a law enforcement officer if he is carrying a dead body. New of us would not be offended by an inference that we are a murderer, and most of us would be offended by baseless assertions that we are carrying drugs. That a person reacts in an expected and normal way to such accusations may not give rise to reasonable suspicion.
Next, the majority ought to consider that Ramsey feigned permission to leave after he completed his “investigatory” stop on Interstate 30. According to Ramsey, they were free to go. They could “walk or crawl,” Ramsey told them, but they could not take their van. Ramsey’s conduct showed that appellants were not free to leave. They were not free to leave because Ramsey intended to search the van.
We also ought to consider the request for consent to search. Ramsey’s request for consent to a search was not a request. He did not ask if he could search and then move on to other questions relevant to his stop. He relentlessly pressed on. After Laime refused multiple verbal requests, Ramsey got out a consent form even though his requests had been rejected. Ramsey pressed on. Laime still denied the request. Ramsey still did not give up and respect the denial of his request. He began to try to read the form. Still Laime would not submit. Then Ramsey began to fill the form out. To what purpose? It was apparent Ramsey was hoping that by applying relentless pressure, Laime would submit to a search. Surely we have not reduced constitutional protections to only providing protection where the citizen, alone on the side of the road, has the courage to engage in an Olympic test of wills with law enforcement officers sworn to uphold the law and the Constitution. This decision leaves the citizens, who the Constitution is supposed to protect, to fend for themselves and to bear the burden of fighting off unrestrained law enforcement knowing that if they resist, their invocation of their constitutional rights will be interpreted as an admission of guilt. One would hope we have moved beyond the grossly simplistic approach that a citizen will comply and allow a search because if he doesn’t he must have something to hide. The Constitution is designed to protect the innocent from unlawful search and seizure. This court bears a duty to protect the Constitution. Potter, supra. Also, the constitutional guarantee against unlawful search and seizure must be construed in favor of the individual. State v. Broadway, 269 S.W.2d 215, 599 S.W.2d 721 (1980); Lowery v. United States, 128 F.2d 477 (8th Cir. 1942).
In the majority’s decision, we learn that if someone lies about his criminal background when asked by police, is unable or unwilling to identify his destination and names of friends he is to meet, and seems agitated, that there is reasonable suspicion he is carrying contraband in his vehicle, or that he has committed or is about to commit a crime. There is nothing, taken individually, collectively, or in totality about these facts, that has any tendency to show anything was in the van or that a crime had been or was about to be committed. At most, they show the police officer had a nervous man before him who had a prior drug conviction. Nonetheless, these facts are found by this court to constitute the required “specific, particularized and articulable reasons indicating the person or vehicle may be involved in prohibited criminal activity.” See Potter, 342 Ark. at 627. The facts provided are so woefully inadequate that a cursory review is all that is needed to show that the continued detention and canine sniff were unlawful. The facts are so amorphous that they mean nothing. The facts must be specific. The word specific means “precisely formulated or restricted, of an exact or particular nature.” The People v. C.T. Thomas, 25 Cal. 2d 880, 898, 156 P.2d 7 (1945). There is nothing restricted or precise about these facts. Particular means “separate, single, specific, as opposed to general.” State v. Patterson, 60 Idaho 67, 88 P.2d 493, 497 (1939). No particular facts inferring any criminal activity whatever are offered. Nothing about the facts in totality infers anything other than a nervous man who has a criminal background, which he is understandably not proud of. More is required of this court than such a mechanical review as is present here. So much time has passed since the decision in Terry v. Ohio, 390 U.S. 1 (1968) and similar cases under our own Constitution that discussion of this issue has digressed to lists of factors and facts from prior cases. This is misleading because the decision by the court must be based upon facts of the case that rationally infer a crime has been or is about to be committed. Beck, supra. The analysis has digressed to a conclusion of reasonable suspicion where a criminal defendant appears merely suspicious in the opinion of law enforcement. Such conjectural suspicion is not sufficient. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). An “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice. Potter, 342 Ark. at 625-626 (citing Terry v. Ohio, 392 U.S. 1 (1968)). Nonetheless, in this case we allow a detention and search on a set of specious facts questionably and conflictingly presented by the officer, and cast aside fundamental constitutional rights.
This case should be reduced to its simplest terms so what this court is doing may be clearly understood. The majority finds the detention for the canine sniffi was justified because Ramsey had a reasonable suspicion that a crime had been or was about to be committed. His testimony at the hearing varied fundamentally from his affidavit. His conduct shows he stopped the van to search it and everything else was an attempt to justify the detention and search. The facts in this case are abundantly dear. Ramsey saw a vehicle that fit his profile of one that he thought could be carrying drugs. He acted on a hunch. He stopped and search the van on that basis. Such an “inchoate and unparticularized suspicion or ‘hunch’ ” will not suffice to support a search under the Fourth Amendment. Potter v. State, 342 Ark. at 625-626, (citing Terry v. Ohio, 392 U.S. 1 (1968)).
For the above reasons I respectfully dissent.
CORBIN, J., joins in this dissent.