(dissenting).
{21} I respectfully dissent. I would hold that, under controlling case law, the officers lacked the required reasonable and individualized suspicion to search Defendant under the particular facts in this appeal.
{22} Under our standard of review, we must view the facts in the “manner most favorable to the prevailing party.” State v. Montoya, 116 N.M. 297, 304, 861 P.2d 978, 985 (Ct.App.1993). “All reasonable inferences in support of the trial court’s decision will be indulged in, and all inferences or evidence to the contrary will be disregarded.” In this regard, the majority states that Officer McDaniel testified that, once having found the weapon on Defendant’s companion, he “became concerned” for officer safety from Defendant. This statement implies that the officer was concerned or even feared that Defendant too might have a weapon. I would not infer concern or fear from that testimony. For that reason, I would not rely on it to hold there was a legitimate basis for the search. I suggest that the trial court, based on its ruling, did not rely on that testimony either. On appeal, under Montoya, we must view the evidence in the light “most favorable to the prevailing party,” which in this appeal is Defendant.
{23} In State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994), our Supreme Court held that “[u]nder Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, police officers may stop a person for investigative purposes where, considering the totality of the circumstances, the officers have a reasonable and objective basis for suspecting that particular person is engaged in criminal activity.” (Internal quotation marks omitted.) An officer’s knowledge must support “reasonable individualized suspicion that the [defendant] had committed or was about to commit a crime.” State v. Eli L., 1997-NMCA-109, ¶ 11, 124 N.M. 205, 947 P.2d 162 (emphasis added). The reasonable suspicion, however, must be based on “specific articulable facts, and rational inferences taken from those facts.” Id. ¶8. I submit that the majority’s reasoning, in justifying the search of Defendant under the “frisk-of-companion rule” discussed by Wayne R. LaFave in his treatise, Search and Seizure §§ 9.4(f), 9.5(a), does not meet the requirements of Eli L. Generalized suspicion that a defendant’s associates have committed a crime does not suffice. See id. In fact, the majority’s analysis of the frisk-of-companion rule does not include all of the factors discussed by LaFave. In assessing the apparent danger of a companion, LaFave considers (1) “the nature of the crime,” (2) “the nature of the association between the companion and the arrestee,” (3) “the time and place of the arrest,” (4) “the number of officers ... present,” (5) “whether the companion has a ‘suspicious bulge’ in his clothing or has made any menacing movements,” (6) whether the companion and arrestee were in a car or in premises, and (7) whether the companion “intruded himself into the arrest situation.” LaFave, supra § 9.5 at 263-64. In my view, under the facts of this appeal, no reasonable and objective basis for individualized suspicion existed.
{24} First, the officers did not observe Defendant engaged in any criminal activity. Mere presence in the area where criminal activity is taking place without more is not sufficient to justify the arrest or detention of an individual. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); State v. Graves, 119 N.M. 89, 92, 888 P.2d 971, 974 (Ct.App.1994). Second, the officers were required to have more than a bare suspicion that Defendant had some criminal connection with his companion on the night in question. See Graves, 119 N.M. at 94, 888 P.2d at 976. Simply walking along with the companion is not enough. The majority observes that, as Defendant and his companion were walking, it was the companion who kept looking back repeatedly at the patrol car, not Defendant. Additionally, what caught the eye of the officers was the repeated motions of Defendant’s companion as if “adjusting something ... underneath his big, heavy coat.” I submit that any “hunch” or assumption that Defendant was engaged in criminal activity, under these circumstances, without articulable facts focused on Defendant to support that assumption, is insufficient.
{25} Other facts in this appeal support the trial court’s suppression order. The officers, for example, were not looking out for particular suspects. As already noted by the majority, the officers had not received reports on the night in question regarding juvenile problems in the area. Cf. State v. Jimmy R., 1997-NMCA-107, ¶ 3, 124 N.M. 45, 946 P.2d 648 (holding that officer had reasonable suspicion that defendant might have a gun based on concerned citizen’s re-port). There was no indication that the two youngsters were gang members. The area was not a particularly dangerous part of town. Defendant’s association with his companion did not warrant reasonable suspicion of Defendant. See Eli L., 1997-NMCA-109, ¶ 11, 124 N.M. 205, 947 P.2d 162 (holding that officers did not have reasonable suspicion of defendant where “they had only generalized suspicion that other gang members, not the [defendant] specifically, had committed a crime or had engaged in any wrongdoing”). The majority relies on the fact that Defendant was wearing a big, baggy coat in the middle of July, but this dress does not provide reasonable suspicion. See Jones, 114 N.M. at 149, 151, 835 P.2d at 865, 867 (holding that gang attire is not an articulable fact that “would set defendant apart from an innocent gang pedestrian in the same area”).
{26} These facts distinguish this case from Berryhill, 445 F.2d at 1192-93, Lewis, 399 A.2d at 560-61, and Myers, 186 Ill.Dec. 443, 616 N.E.2d at 636, the majority’s supporting cases. In Berryhill, 445 F.2d at 1192, there was a warrant for the defendant’s arrest. Additionally, the arresting officers knew of the defendant’s prior arrest history and that he usually had weapons near him. Here, the officers had no such information regarding Defendant.
{27} The court in Lewis, 399 A.2d at 561, considered the following factors in evaluating the reasonableness of the officers’ stop:
(1) the particular activity of the person stopped for questioning [that] the investigating officer has observed, (2) the officer’s knowledge about (a) the activity of the person observed and/or (b) the area in which the activity is taking place, and (3) the immediate reaction or response of the person upon being approached and questioned by the officer.
Under this analysis, the Lewis court noted that the officers observed the defendant’s companion carrying a concealed weapon in a high-crime area. Additionally, the defendant appeared nervous. Those facts did not exist here.
{28} Similarly, the officers in Myers, 186 Ill.Dec. 443, 616 N.E.2d at 636, went to the crime scene in response to a report of a burglary of a truck. An officer recognized the defendant’s companion and knew that the companion had prior arrests for weapons violations. Another officer observed the defendant reach into his pocket and drop something onto the truck. Similar circumstances were not present in this appeal.
{29} I am not discounting the importance of officer safety. Although the majority’s opinion, in my view, relies heavily on the safety concerns it claims the officers had, it is important to note that the State, in its briefs, mentions “officer safety” only summarily and in passing. The main thrust of the State’s argument on appeal was that the officers had reasonable suspicion to search Defendant. Not only did the State argue officer safety only briefly as a basis for reversal on appeal, and apparently did not rely heavily on that point in the trial court, but the State has not recited supporting facts in its argument. Yet, the majority appears to rely heavily on “officer safety,” not to affirm the trial court, but to reverse it. My review of the testimony does not reveal that Officer McDaniel displayed any concern or fear as a result of Defendant’s presence at the scene. Instead, he merely testified that he essentially was prompted to search Defendant “for officer safety .” The trial court would be free to infer from that fact that the officer routinely decided to pat down Defendant solely'as a precautionary measure.
{30} In my view, individualized reasonable suspicion was necessary before Defendant was searched as a companion, and the majority’s general impressions that the officers were concerned about their safety is not supported by any of the evidence, as viewed in the light most favorable to Defendant, which we are required to do. I do not believe a court should apply the concept of officer safety abstractly just because, in general, it is a potential concern. We should follow New Mexico’s case law that requires reasonable individualized suspicion in an effort to balance the State’s interest in security with a person’s right to be free from unreasonable searches and seizures. See U.S. Const, amend. IV. I do not believe the majority’s opinion does that.
{31} This appeal is yet another example in which this Court is called upon to evaluate the conduct of police officers before we evaluate the conduct of the accused. See State v. Tywayne H., 1997-NMCA-015, ¶ 27, 123 N.M. 42, 933 P.2d 251 (“ ‘In a government of laws, existence of the government will be imperilled if it fails to observe the laws scrupulously.’ ” (quoting Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting), overruled, in part on other grounds by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967))). Addressing that question is made even more difficult by the legitimate concerns of our citizens that weapons and their use among our youth is becoming a pervasive and alarming dilemma that must be challenged. In addressing the public’s concerns, courts must do their job without disregarding an individual’s constitutional rights. Because I would conclude that the search of Defendant was not justified, I dissent from the majority’s opinion.