Concurring in Result.
¶ 1 I concur in the result of today’s decision and with the Court’s conclusion that the trial court erred in its determination that McGaughey v. State1 and United States v. McSwain2 compelled the suppression of the drug evidence in this case. McGaughey and McSwain are both directed at a very specific and relatively rare factual situation, i.e., where an officer initiates a traffic stop based upon a reasonable but mistaken belief that an infraction of law has occurred or is occurring, only to discover, before interaction with the driver, that this initial perception was wrong (in McGaughey because the taillights were fully operational, in McSwain because the vehicle’s temporary registration was valid). Because the officers in these two cases continued to detain the drivers after realizing that their original reason for the stop was invalid, both cases involved illegal detentions and invalid stops.
¶ 2 Even Goins does not contend that the stop of his vehicle for following too closely was invalid or -based upon a mistake. Because his case does not involve a mistaken stop, McGaughey and McSwain are simply inapplicable. I fully agree with the Court’s central analysis of this issue. I disagree with its pronouncement of the standard of review and with its seeming resolution of a factual question that should be left to the trial court in the first instance.
¶ 3 The trial judge was quite clear that he was granting the defendant’s suppression motion based upon his interpretation of McGaughey and McSwain, i.e., that under these two cases, once “the purpose of the stop is terminated, ... any further search or request to search is illegal.” The court was *773unwilling to even hear evidence on the factual question of whether Goins voluntarily consented to the search of his motor home. Hence the court suppressed the evidence based upon its legal conclusion that McGau-ghey and McSwain forbid an officer to seek or obtain consent to search a vehicle after that officer has “terminated” or “resolved” the original purpose of the stop.3 This is a purely legal conclusion to which we owe no deference. We should be addressing it de novo, rather than under the abuse of discretion standard invoked by the Court.
¶ 4 I agree with the Court that the current case, unlike McGaughey and McSwain, involves a valid traffic stop and that the officer’s request to search Goins’s motor home occurred after the original purpose of the stop had been resolved. I likewise agree that officers in this situation can only extend their encounter with a citizen driver based upon one of the following justifications: (1) where an objectively reasonable and particularized suspicion regarding a separate offense has already emerged; and (2) where the encounter becomes consensual.4 Either of the reasons is sufficient to continue the encounter.
¶ 5 Finally, I agree with the Court’s decision to remand this case for further factual determination by the trial court. The trial court must decide whether Goins voluntarily consented to the search of his motor home, and if not, whether his continued detention was justified by the officer’s objectively reasonable and particularized suspicion that he was committing some other offense. I also agree that United States v. Hernandez,5 along with the other cases cited by the Court, appears highly instructive in resolving the issues before the trial court. I do not, however, think we should describe Hernandez as “indistinguishable from the case at bar,” since we should leave the disputed factual question of what actually occurred in this case to be resolved, in the first instance, by the trial court.
. 2001 OK CR 33, 37 P.3d 130.
. 29 F.3d 558 (10th Cir.1994).
.There is no disagreement between the parties about the fact that before any request for consent to search the motor home, Officer Williamson gave Goins a verbal and written warning about not following too closely, handed back his papers, told him "that is all I need,” and wished him a "safe day.” The parties likewise agree that at that point, the original purpose of the stop, i.e., Goins following too closely, had been fully resolved.
. It should be noted that a continuation of the encounter based solely on the driver's voluntary consent does not technically involve any further "detention," as the Court's opinion suggests in its final paragraph, since, by definition, the driver is free to go at that point.
. 93 F.3d 1493 (10th Cir.1996).