(dissenting).
{69} I concur in every respect with Justice Minzner’s dissenting opinion; I agree that the State did not meet its burden at the trial level of establishing facts supporting the reasonableness of the warrantless search of Defendants’ persons during the second stop. See State v. Paul T, 1999-NMSC-037, ¶ 10, 128 N.M. 360, 993 P.2d 74. Like Justice Minzner, I conclude that the officers’ testimony, when tested under an objective standard, failed to establish a reasonable suspicion that Defendants were both dangerous and armed. While the majority opinion arguably makes a ease for Defendants’ nervousness giving rise to a suspicion of dangerousness, the facts of this case fall short of establishing a reasonable suspicion that they were armed. The United States Supreme Court requires a reasonable suspicion that a defendant is both dangerous and armed, and we are compelled to follow such precedent. See Cockrell v. Bd. of Regents, 2002-NMSC-009, ¶ 27, 132 N.M. 156, 45 P.3d 876.
{70} I would add to Justice Minzner’s analysis three other pieces of evidence relevant to the totality of the circumstances: (1) the testimony of Officer Roberts that he did not see evidence of weapons or have any concern for his safety during his initial approach of the vehicle; (2) Officer Yost’s testimony that while positioned near the passenger door she observed the occupants’ movements while in the ear and did not see evidence of weapons; and (3) Officer Roberts’ testimony that prior to returning to the car to issue a warning citation, he had already made the decision to frisk for weapons, rendering any observations made after that point irrelevant to whether his decision to frisk for weapons was legitimate.
{71} Officer Roberts testified that when he first approached Defendants, he asked the driver to produce a driver’s license, registration and proof of insurance. He observed the driver reach in the glove box for the documentation and also observed the driver reach into his hip pocket for a wallet, retrieve his license from the wallet, and hand it to him. The officer’s testimony was clear that at this point he did not see evidence of a weapon and did not have any concern for his safety, although the occupants appeared nervous and commented that they had been stopped just five minutes earlier and everything had checked out.
{72} Officer Yost, who heard the BOLO from Deputy House like Officer Roberts, also altered her path of travel to look for Defendants. She admitted that she was looking for a reason to stop them. She passed Defendants on the highway and made a U-turn to catch up with them. When she arrived at the scene, she positioned herself next to the passenger door. She, too, perceived Defendants to be more nervous than one might ordinarily expect. However, her observations of Defendants while Officer Roberts was seated in his vehicle are instructive. She observed movement in Defendants’ car, including the passenger reaching in the glove box, but did not observe any weapons in the glove box. Her testimony, therefore, tended to dispel at least one of the two requirements set forth by the United States Supreme Court for conducting a frisk for weapons— that the officer have a reasonable suspicion the individuals are armed.
{73} Finally, I note that the majority relies on events occurring after the point Officer Roberts announced that he was going to conduct the frisk in order to support his decision to frisk for weapons. Majority Opinion ¶ 30. This reliance, I believe, is misplaced. In fact, Officer Roberts testified that he made the decision to frisk the defendants before returning to the car a second time to issue a warning citation. Thus, even looking at the evidence in the light most favorable to the State, the majority is left with the Officers’ observation of Defendants drumming their fingers on the rooftop, speaking with one another, rolling the windows up and down, and looking back toward Officer Roberts as the only facts which could arguably support an inference that defendants were armed and dangerous. When judged objectively, these facts are simply insufficient to justify the patdown search.
{74} I also agree with Justice Minzner that, given her analysis and conclusion that the motion to suppress should be granted, discussion of the first stop ought to be unnecessary. Since, however, the State and the majority rely on the BOLO from the first stop to justify the frisk for weapons, analysis of the validity of the first stop is required. I write separately because, in my opinion, the first stop was not supported by an objectively reasonable suspicion and thus, likewise, violated the Fourth Amendment. In this respect my dispute with the majority opinion is quite narrow. In deference to our role as an appellate court, I, like the majority, accept the trial court’s credibility determination that Deputy House initially suspected that Defendant was driving a car with a missing license plate. As to the purely legal question of whether or not that suspicion was objectively reasonable, however, I agree more with the Court of Appeals’ opinion than with ¶¶ 40-50 of the Majority Opinion.
{75} Under our jurisprudence, an officer may briefly detain an individual to investigate potential criminal activity without probable cause to make an arrest when that officer has a reasonable suspicion that the law has been or is being violated. That reasonable suspicion is tested under an objective standard; that is, courts must determine whether “the facts available to the officer [would] warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate^]” State v. Madsen, 2000-NMCA-050, ¶ 9, 129 N.M. 251, 5 P.3d 573. As the majority notes, we review the trial court’s answer to that question de novo. See Majority Opinion, ¶ 19.
{76} Deputy House justified his initial stop of Defendants’ vehicle to the trial court on the grounds that until “he pulled right up on the vehicle” he could not see a license plate. Indeed, he testified that he explained to the driver that he needed to move the license plate up to where it was visible. This recommendation was striking, given the testimony of Officer Roberts, who stopped the defendants just a few minutes later and a few miles away from where Deputy House first stopped the car. Officer Roberts repeatedly and unequivocally testified that it was broad daylight at the time he stopped Defendants and that he could easily see the license plate on the vehicle, which was located on the very spot the manufacturer had designed for it. Furthermore, Officer Roberts testified that not only was the license plate visible, but that he was able to determine that the registration was current from the color of the registration sticker on the license plate while he was driving down the road. On these facts, I agree with the trial court that the first stop was “fishy,” but I would go further and agree with the Court of Appeals that it was also invalid. Deputy House’s initial suspicion, though genuine, was not objectively reasonable; it did not, therefore, justify pulling over Defendants.
{77} The majority opinion faults Defendants for not putting on evidence to establish the fact that the license plate, being in the very spot the manufacturer intended, was not nevertheless improperly obscured under NMSA 1978, § 66-3-18(A) (1998). See Majority Opinion, ¶ 42. I am not convinced, however, that the burden to produce such evidence is properly placed on Defendants. Although we are to view the evidence in the light most favorable to the State as the prevailing party below, the State bears the burden of proving specific, articulable facts that, when judged objectively, would lead a reasonable person to believe that criminal activity was occurring. State v. Taylor, 1999-NMCA-022, ¶ 7, 126 N.M. 569, 973 P.2d 246. Deputy House’s testimony, in my opinion, falls below that requirement. Deputy House’s conclusory statement that the license plate was not clearly visible was refuted by the specific, articulable facts testified to by Officer Roberts, including the fact that the license plate was clearly visible in the broad daylight, that the license plate was in the very place the manufacturer intended, and that he could identify the color of the registration sticker while he was driving down the road. I, therefore, do not agree that we should defer to the trial court’s legal conclusion that the State established that Deputy House’s subjective belief was objectively reasonable.
{78} Furthermore, I agree with the Court of Appeals that Deputy House acted unreasonably in pursuing his initial suspicion by not taking any steps to confirm or dispel it before pulling Defendants over and checking the license and registration. See State v. Vandenberg, 2002-NMCA-066, ¶ 18, 132 N.M. 354, 48 P.3d 92. In this regard, contrary to ¶41 of the Majority Opinion, I do not find that this case is controlled by City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93 (Ct.App.1997). In that ease, the officer could not determine from the road whether a vehicle had a license plate because it had no permanent tags and the temporary tag was obscured by the tint of the ear’s windows. In fact, as the Court of Appeals noted, “the windows were so darkly tinted that the temporary tag was not visible until the vehicle was stopped, the officer had exited the vehicle, and was approaching the driver, within two to three feet from the rear of the stopped vehicle.” Id. ¶ 12. Thus, in that case, the officer could not “verify or quell that suspicion,” id. ¶ 15, without first stopping the vehicle. By way of contrast, Deputy House and Officer Roberts both testified that they could see the license plate from their vehicles.
{79} In this case, quite unlike in Haywood, an investigatory detention was simply unnecessary to dispel Deputy House’s initial mistaken suspicion. Even a cursory investigation from the road would have apparently shown to Deputy House, as it did to Officer Roberts, that the car not only had a license plate, but that the registration was current. I do not believe we should allow the police to pull over the ear, ask for license and registration, and detain the passengers pending the wants and warrants search in these circumstances. Not requiring such minimal precautions of the police would invite pretextual stops. Requiring it, on the other hand, would maintain a proper balance between protecting individuals’ Fourth Amendment interests and promoting the government’s legitimate interest in investigating crimes. Our case law requires that our decisions maintain that balance. See State v. Reynolds, 119 N.M. 383, 385-86, 890 P.2d 1315, 1317-18 (1995).
{80} Because I conclude that the first stop was invalid, I would not permit the State to rely on the information that Deputy House communicated to Officer Roberts in the BOLO to establish the reasonableness of the patdown search at the second stop. See generally State v. Ingram, 1998-NMCA-177, ¶ 10, 126 N.M. 426, 970 P.2d 1151 (discussing exclusionary rule and its effect on the fruits of an unlawful stop). In any event, the information from the BOLO, on which both the State and the majority rely, has de minimis value in the armed and dangerous calculus. Deputy House did not communicate any information to Officer Roberts to indicate that he was concerned about his safety or the safety of other officers. Indeed, the BOLO could not provide any information whatsoever to suggest that Defendants were armed and dangerous, precisely because Deputy House did not perceive them to be. The only logical reason for the BOLO was retribution for Defendants’ exercise of their Fourth Amendment and Article II, Section 10 rights to be free from unreasonable detention. This Court should discourage retribution for the exercise of constitutional rights. Absent the scant information conveyed in the BOLO, Officer Roberts’ patdown search of Defendants seems all the more unreasonable.
{81} For these reasons, and for all of the reasons asserted by Justice Minzner in her dissenting opinion, I would affirm the Court of Appeals.