(dissenting).
{30} The majority opinion holds that the factors articulated by Officer Roberts for believing that a pat-down was required for his safety amount to simple nervousness, which is insufficient justification for a pat-down. Although there is much in the majority opinion with which I agree, I must respectfully dissent from this ultimate conclusion. I believe that the majority opinion is inconsistent with the United States Supreme Court’s most recent ease on reasonable suspicion, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); that Arvizu casts doubt on the continuing vitality of the cases cited in paragraphs 22 through 24 of the majority opinion; and that -while the majority opinion may be consistent with the method of analysis used in State v. Cardenas-Alvarez, 2001-NMSC-017, 130 N.M. 386, 25 P.3d 225, I would limit that analysis to the situation where officers are merely investigating crime or searching for evidence, and use the Arvizu analysis when officers are acting to protect themselves from harm. Otherwise, I fear, as the trial court said, that we “would leave officers in a position of subjecting themselves to unacceptable risks in the context of traffic stops.”
{31} In Arvizu, the Supreme Court reemphasized its commitment to the “abstract” and sometimes “elusive” nature of the concept of reasonable suspicion, refusing to approve of the Ninth Circuit’s attempt to carve out analytical rules. See id. at 751. The Court rejected what it termed a “divide-and-conquer” analysis, pursuant to which each factor articulated by the officers would be viewed with an eye toward whether it was consistent with innocent behavior. Id. Instead, the Court re-affirmed the “totality of the circumstances” test for reasonable suspicion, which required, under the facts of that particular case, the appellate court to defer to the trial court’s deference to the police officer’s experience. It also required rejection of the defendant’s contention that everything he did was consistent with a family in a minivan on a holiday outing. Id. at 752-53. When viewed in the light of Arvizu, the majority’s reliance on cases that downplay nervousness, because nervousness during a traffic stop is a common, innocent reaction, appears incorrect as a matter of Fourth Amendment Law.
{32} I must acknowledge that our Supreme Court used the identical “divide-and-conquer” analysis in Cardenas-Alvarez, 2001-NMSC-017, ¶ 21, 130 N.M. 386, 25 P.3d 225. There, the Court was unable to find a reasonable suspicion under the totality-of-the-circumstances test it said it used. Id. The Court so concluded even though the officer, who was very experienced in the vehicle-towing business, articulated several reasons why the defendant’s explanation of his trip to tow a vehicle was implausible, and thereby would have provided a reasonable suspicion that criminal activity was afoot under the Arvizu framework. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2-3, 130 N.M. 386, 25 P.3d 225.
{33} If all that were at issue in this case was whether Officers Roberts and Yost had reasonable suspicion to further detain Defendant or conduct further investigation, I would agree with the majority because Cardenas-Alvarez squarely supports a holding that, in the balance between individual rights and ferreting out crime, individual rights prevail under these facts. But more is at stake in this case. The central concern in this ease is the safety of the officers. In none of the cases on which the majority relies was officer safety the predominant concern, or even any concern at all from the testimony of the officers. The cases all involved reasonable suspicion to investigate violations of the law. See, e.g., Caldwell v. State, 780 A.2d 1037, 1051 (Del.2001) (pointing out that “the officer did not indicate that he had any reason to fear for his safety”).
{34} In contrast, in the present case, as in State v. Chapman, 1999-NMCA-106, ¶ 16, 127 N.M. 721, 986 P.2d 1122, officer safety was the only justification for the pat-down. And as I read Chapman, it is not the degree of nervousness that allows the officer to pat a defendant down, but instead it is the articulation by the officer of specific reasons why the nervousness displayed by the defendant caused the officer to reasonably believe that his or her safety would be compromised. See id. ¶¶ 15-16 (stating that officer must state “specific, articulable facts” or “identifiable, articulable facts,” and not “hunches” or “conclusive characterizations,” which cause a “reasonable” belief that a defendant may be armed and dangerous). In fact, several of the cases relied on by the majority had the sort of extreme nervousness present in Chapman, and the courts still held the nervousness to be insufficient to warrant further investigation. See, e.g., United States v. Chavez-Valenzuela, 268 F.3d 719, 722 (9th Cir.2001) (describing defendant’s nervousness and stating that his “hand was shaking severely”); Caldwell, 780 A.2d at 1043 (characterizing the defendant as “extremely nervous”).
{35} The court below relied on two factors in denying the motion to suppress: (1) that the stop was a valid stop for speeding and (2) that the officer explained exactly why Defendant’s and Swanson’s actions justified a reasonable fear for safety. The majority rightly does not question the first factor. Although the trial judge recognized that the facts surrounding the two stops could be viewed as “fishy,” he properly considered only the testimony concerning Officer Roberts’ articulated reason for stopping the car. Roberts explained that he stopped the car because it was speeding in a construction zone in which Roberts had stopped over 100 people for speeding. The construction zone was a dangerous area, and Roberts himself had investigated 20 accidents in it. See State v. Pallor, 1996-NMCA-083, ¶¶ 12-15, 122 N.M. 232, 923 P.2d 599 (indicating that a court ignores any subjective reasons for stopping an individual as long as there is an objective, reasonable basis to do so).
{36} As to the second factor, the trial court specifically found that Officer Roberts was telling the truth and was subjectively concerned for his safety, and that the objective facts made it reasonable for him to feel that way. The reasons offered by the officers for asking the occupants of the vehicle to get out and be patted down before handing them the ticket were not limited to simple nervousness, unarticulated hunches, or conclusive characterizations. Officer Roberts is an experienced officer; he stops 50 people a night. The people he stops for speeding do not normally look around; they do not normally fidget or move around. Vandenberg was rolling the car window up and down, and Swanson was dramming his fingers on the roof of the car. Both were keeping an eye on the officer, either in the rear-view or side mirror or by turning around. Roberts testified that what Vandenberg and Swanson were doing made him nervous for his safety, so nervous that he did not want to hand the citation to Swanson until Yost had arrived as back up. He explained that the type of nervous behavior he saw was not only greater than normal, but was also an indicator to Mm that Swanson was trying to expel nervous energy that was being built up in Ms body, nervous energy that Roberts thought was a precursor to the “flight or fight” syndrome that he learned about at the police academy. According to Roberts, people this nervous were unpredictable, and Roberts wanted to make sure that the unpredicability would not ultimately result in harm to him.
{37} In State v. Lovato, 112 N.M. 517, 522, 817 P.2d 251, 256 (Ct.App.1991), we relied on Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), in stating that, “Even in routine traffic stops, police may adopt precautionary measures addressed to reasonable fears ... [due to] the inordinate risks police take when they approach vehicles with persons seated in them .... ” Interestingly, Mimms relied on statistics that 30% of police shootings occurred when a police officer approaches a suspect seated in an automobile and that a significant percentage of murders of police officers occurs when officers are making traffic stops. Mimms, 434 U.S. at 110, 98 S.Ct. 330. Although Mimms involved approving the practice of having occupants get out of vehicles even without any individualized suspicion, and retaining the requirement of articulable suspicion to engage in a more intrusive pat-down, I do not believe that we should require more of our officers than the articulation of factors both (1) believed by the trial court and (2) specific enough in the context of a given case to reasonably cause the officers to be concerned for their safety. Because we have those here and because I cannot meaningfully distinguish Chapman, I would affirm.