(dissenting).
{57} While there is much in the majority opinion with which I agree, I must respectfully dissent from the holding in this case. I agree with the standard of review stated in ¶¶ 17-19 for motions to suppress, with the analysis of the validity of the second stop in ¶ 21, and with the test stated for analyzing a frisk in ¶ 22. I particularly agree that “[t]o justify a frisk for weapons, [an] officer must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous.” Majority Op. ¶ 22. Finally, I agree generally with the principle stated in ¶ 23 that we must balance an individual’s constitutional right to be free from an unreasonable search and seizure against a law enforcement officer’s responsibility to investigate crime and to be protected against unreasonable risks of injury in the course of an investigation. As applied to the facts of this case, however, for the reasons that follow, the relevant principles seem to me to support Defendants’ motions to suppress. Consequently, I would not address the validity of the first traffic stop, see id. ¶¶ 40-50, nor claims under the New Mexico state constitution, see id. ¶¶ 51-54.
{58} As for the justification of the Terry patdown, I do not believe that the evidence presented warranted a frisk for weapons. The majority does not identify any evidence that Officer Roberts actually suspected Defendants were armed, but rather concludes that he “reasonably could have considered Defendants to be armed and dangerous, justifying a protective frisk for weapons.” Id. ¶ 30. I question whether we should rely on what he might have suspected, rather than first determining what he suspected, next determining whether what he suspected would have justified a frisk for weapons, and finally determining whether he had a “sufficient degree of articulable suspicion” to support a frisk. Id. ¶ 22. In this case, however, we seem to be requiring only that the officer have expressed a concern for his safety and that he might have thought Defendants were armed and dangerous. I respectfully submit that would be a significant change in the expression of the rule and thus an important change in existing law.
{59} We do not have circumstances in this case that justify a new exception nor support the disposition under the federal constitution. In Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), which was decided on the same day as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that “[i]n the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he [or she] reasonably inferred that the individual was armed and dangerous.” An officer’s concern about safety, without specific articulable facts that provide reasonable suspicion that someone has a weapon, is an insufficient basis for a Terry frisk. See Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that “a reasonable belief that [the defendant] was armed and presently dangerous [is] a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons”). As recognized by the majority, Majority Op., ¶ 21, under Skate v. Cobbs, 103 N.M. 623, 711 P.2d 900 (Ct.App.1985) and State v. Lovako, 112 N.M. 517, 817 P.2d 251 (Ct.App.1991), in some cases the right to conduct a protective search arises from the inherently dangerous nature of the suspected criminal activity. In this ease, however, the only crimes suspected were traffic law violations and perhaps possession of illegal narcotics, which are not inherently dangerous crimes.
{60} It is therefore under the standard stated by the majority that we must analyze the facts of this case. I am willing to assume for purposes of this appeal that Officer Roberts’ testimony should be understood as testimony that he was nervous about his safety because he suspected one of the Defendants might have been armed and if armed would be dangerous. Nevertheless, there is nothing in his testimony to provide a reasonable basis under the relevant cases for the suspicion that one of the Defendants was armed. I agree that State v. Chapman, 1999-NMCA-106, ¶ 2, 127 N.M. 721, 986 P.2d 1122, is difficult to distinguish. See Majority Op., ¶¶ 27-30. I would not describe it as “particularly helpful,” id. ¶ 27, however, but as troublesome. I do think it can be distinguished and believe that it ought to be.
{61} In Chapman, after the officer stopped the defendant for a traffic violation and had asked for the defendant’s identification,
Defendant would not make eye contact with the deputy. When defendant handed his driver’s license to the deputy, defendant’s hand was shaking. The deputy then had Defendant exit his vehicle. Because the deputy noticed that Defendant was becoming increasingly nervous, he asked Defendant if he had any weapons. Defendant told the deputy that he did not have any weapons. Then, in a higher-pitched voice, and in a nervous and aggressive manner, Defendant asked ‘what this was all about.’ The deputy characterized Defendant’s tone of voice and questioning at that point as hostile, nervous, and aggressive. The deputy then asked Defendant whether he had any drugs, drug paraphernalia, or needles on him. The deputy asked this because he was afraid of getting stuck with a dirty needle if he conducted a patdown search. With this question, Defendant’s body began to shake. The deputy asked Defendant to place his hands on the car. Defendant complied, but his hands were shaking so furiously that he was unable to keep them steady. At this point, the deputy, who had no backup, became concerned about his own safety and decided to conduct a patdown search for weapons to protect himself.
State v. Chapman, 1999-NMCA-106, ¶ 2 (emphasis added). The officer did not rely solely upon the nervousness of the defendant to support his frisk, and he mentioned a weapon of which he was fearful. After he asked the defendant if he had any weapons and observed the defendant’s nervous and aggressive behavior in response, the officer developed a reasonable suspicion that the defendant might be armed and dangerous.
{62} The Court of Appeals majority opinion distinguished Chapman from the present case by the degree of nervousness observed by the arresting officer.. State v. Vandenberg, 2002-NMCA-066, ¶ 25, 132 N.M. 354, 48 P.3d 92 (“[Defendants’] behavior ... came nowhere near the panicked and aggressive behavior observed by the officer in Chapman.”). I believe, however, Chapman is more appropriately distinguished by the fact that the officer in that case could relate a concern for his own safety to the answer to the question he asked the defendant about the possession of weapons. Conversely, in this case, Officer Roberts asked Defendant Swanson if he was carrying any weapons and after Defendant Swanson answered “no,” he immediately ordered him to submit to a frisk. Majority Op., ¶ 10. The frisk was not automatically justified simply because Officer Roberts asked Defendant Swanson if he had any weapons. See City of Albuquerque v. Haywood, 1998-NMCA-029, ¶ 17, 124 N.M. 661, 954 P.2d 93 (holding that the defendant’s simple answer “yes” to whether he had a gun did not automatically justify further detention or a frisk for weapons).
{63} I appreciate the majority’s analysis of Chapman and the acknowledgment that “[{Importantly, the officer in Chapman proceeded incrementally before frisking the suspect for weapons.” Majority Op., ¶ 26. As the majority explains, it is not nervousness alone that justifies a frisk for weapons, it is nervousness and other specific articulable observations “placed in context.” Id. ¶ 28.
{64} I am troubled, however, by how the majority attempts to equate the facts in Chapman with the facts in this ease by explaining that in each case, “the situation gradually escalated.” Id. ¶ 30. In Chapman the officer could connect the defendant’s increased nervousness with his answer to the officer’s question of whether the defendant had any weapons and so establish a basis for a belief that the defendant might have a weapon. See United States v. Holt, 264 F.3d 1215, 1224 (10th Cir.2001) (en banc) (“Officers have become skilled at detecting nervous or evasive responses from which the officer may gain valuable clues about a motorist’s intentions. Thus, even a denial may alert the officer that the denial may not be truthful and thus that the officer should take greater care.”). In this case, Officer Roberts made no observations as to Defendant Swanson’s behavior in responding to his question. Instead, Officer Roberts immediately ordered the frisk after Swanson said that he had no weapons. Notwithstanding Swanson’s furtive motions and evasive behavior after he was ordered to submit to the frisk, Majority Op., ¶ 30, the unanswered question is what basis Officer Roberts had for suspecting that Defendants were armed at the time he ordered the frisk.
{65} An officer must have a reasonable suspicion that a suspect is armed and dangerous at the inception of the frisk. Terry, 392 U.S. at 20, 392 U.S. 1. “The officer cannot rely on facts which arise as a result of the encounter.” State v. Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856; United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948) (“a search is not to be made legal by what it turns up”). I do not believe that Defendant Swanson’s actions after he was ordered to submit to the search are relevant in answering this question. See United States v. Johnson, 267 F.Supp.2d 1072, 1078 (D.N.M. 2003) (holding that the defendant’s admission that he had a gun could not be used to support grounds for officer’s reasonable suspicion to justify a frisk because the officer had already advised the defendant that he was going to conduct a patdown frisk); see also People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403, 407 (1970) (“If merely posing an objection to a search were sufficient to provide justification for a more extensive intrusion upon defendant’s personal security, the right to be free from unreasonable police intrusions would be vitiated by its mere assertion.” (internal quotation marks and quoted authority omitted)).
{66} It seems to me that part of the “incremental” process present in Chapman is lacking in the present case. The part that is missing is a development of a reasonable suspicion before ordering a frisk for weapons. Perhaps another way of stating my disagreement with the majority as narrowly as possible is to say I think Chapman needs to be viewed even more narrowly. I think the Court of Appeals in this case did that. To rely on Chapman to reverse the Court of Appeals in this ease seems to me not only wrong, see e.g. State v. Pierce, 77 P.3d 292, 296, ¶ 12 (2003) (holding that even extremely nervous and fidgety behavior without more does not justify a Terry patdown); State v. Duran, 76 P.3d 1124, 1129, ¶ 19 (2003) (confirming that an officer’s training and experience must actually result in articulable observations justifying an additional investigation), but unnecessary, although limiting Chapman is, as we all agree, difficult. To rely on it to reverse in this case, however, seems to me to limit Defendants’ federal constitutional right to be free from an unreasonable search and seizure as well as create a new exception from the general requirement that a search requires a warrant.
{67} Through this analysis I do not wish to suggest that Officer Roberts was not without any justifiable response to belie his fears once he observed Defendants’ nervousness. “If the Terry test for a frisk cannot be met, this does not mean that the officer is powerless to do anything in the interest of self-protection.” 2 Wayne R. LaFave et al., Criminal Procedure, § 3.8(e), at 250 (2d. ed.1999). When there is no showing that the suspects are armed, the officer may still require the suspects to get out of the car to diminish the possibility that they can make unobserved movements. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); see also LaFave et al., § 3.8(e), at 250. This was the procedure employed by the arresting officer in Chapman. Furthermore, Officer Roberts was justified to ask Defendant Swanson whether he had any weapons. See Holt, 264 F.3d at 1226 (“Given the dangers inherent in all traffic stops, we hold that the government’s interest in officer safety outweighs a motorist’s interest in not being asked about the presence of loaded weapons.”).
{68} I agree with the majority that this is a very close case. I also recognize the difficulty in second-guessing an officer’s decision to protect him or herself when that officer is confronted with a potentially life threatening situation. The Terry exception allows officers to search or seize a suspect under a reasonable suspicion that the suspect is armed and dangerous. We apply an objective standard to this reasonableness in order to maintain the exception as an exception and to protect the individual’s rights to be free from warrantless searches except in exceptional circumstances. For these reasons, I would affirm the Court of Appeals’ opinion. A majority of the Court concluding otherwise, I respectfully dissent.
CHÁVEZ, J., concurs.