dissenting.
The majority has concluded that Officer Gilmore of the Waynesville Police Department improperly detained the driver of an automobile and his passenger, defendant herein, after a legitimate traffic stop had been concluded.
As I believe the driver’s extreme nervousness provided the officer with reasonable suspicion that the men were engaged in criminal activity, the limited time he spent conducting further inquiry was proper. State v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999).
In the case sub judice, Officer Gilmore was on patrol on 1-40 when he noticed a car being operated in an erratic manner, weaving in its travel lane and toward his vehicle. The car then ran off the road to the right shoulder with the driver looking in his rearview mirror while observing the police car. It is conceded that the initial stop was thus proper.
The defendant passenger identified the vehicle as his rental car and provided the rental agreement to the officer. The officer and driver went to the patrol car so that the officer could check both parties’ drivers licenses and look at the rental agreement. Officer Gilmore noted the rental agreement with the driver stated that only defendant was to operate the vehicle under the contract and that the car was overdue. The driver explained that defendant had extended the contract and that he did not know he was not supposed to operate the car. At some point, the driver told Officer Gilmore he was going to Fayetteville and why. Having determined that the drivers license was valid, Officer Gilmore then went to speak to defendant about the rental agreement.
At this point it was noticeable to the officer that the driver’s heart was beating extremely fast. He also observed the driver was sweating profusely despite the fact that the temperature was 50°F.
*53As defendant was the renter of a vehicle that was overdue, it was reasonable for the officer to question him about the rental contract. Thus, despite the fact that the officer was finished with the driver, his legitimate investigation was not yet complete.
While defendant was explaining to Officer Gilmore the purpose of the trip (to visit his sick mother), the officer noticed defendant was also visibly nervous and could see his heart beating through his shirt.
Up until this point the officer was conducting a legitimate inquiry and seeking to satisfy himself that the vehicle was not overdue and was properly possessed and operated by defendant. In fact, the officer could have done more investigation and could have verified defendant’s explanation, instead of merely accepting his story.
In any event, it was at this point that Officer Gilmore confronted defendant and the driver with their nervousness and their unlikely accounts of the trip. The majority concludes that once the driver was cited, the officer had no further right to investigate; and it is with this conclusion that I disagree.
Officer Gilmore was presented with a rental agreement that showed the car was overdue. Certainly he had the right to ask the actual renter (defendant) about what steps he had taken to maintain possession. See U.S. v. Dorais, 241 F.3d 1124 (9th Cir. 2001) (having reasonable suspicion to stop car reported as overdue by rental agency). Here the officer had a vehicle with a lease that showed it was overdue.
It was at the end of that process that the officer asked for and received the consent to search which resulted in the seizure at issue.
In McClendon, the trooper who stopped the defendant appeared nervous, was breathing heavily, was fidgety, evasive and appeared uncomfortable. During further questioning, the defendant in McClendon was breathing rapidly and sweating profusely.
Nervousness can be a factor as Chief Justice Mitchell noted in McClendon stating:
Defendant stresses the fact that in Pearson, we said that “[t]he nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper.” Id. at 276, 498 S.E.2d at 601. Although the quoted language from Pearson is *54couched in rather absolute terms, we did not mean to imply there that nervousness can never be significant in determining whether an officer could form a reasonable suspicion that criminal activity is afoot. Nervousness, like all other facts, must be taken in light of the totality of the circumstances. It is true that many people do become nervous when stopped by an officer of the law. Nevertheless, nervousness is an appropriate factor to consider when determining whether a basis for a reasonable suspicion exists. See Butler, 331 N.C. 227, 415 S.E.2d 719; see also United States v. Perez, 37 F.3d 510, 514 (9th Cir. 1994) (nervousness and sweating profusely were among the factors giving rise to reasonable suspicion); United States v. Nikzad, 739 F.2d 1431, 1433 (9th Cir. 1984) (fact that defendant was nervous and failed to make eye contact gave rise to reasonable suspicion).
In Pearson, the nervousness of the defendant was not remarkable. Even when taken together with the inconsistencies in the statements of the defendant and his girlfriend, it did not support a reasonable suspicion. In the case before us, however, defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of the circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot.
McClendon, 350 N.C. at 638-39, 517 S.E.2d at 134.
Other courts are in accord and recognize nervousness and differing stories as giving rise to reasonable suspicion. U.S. v. Williams, 403 F.3d 1203, 1206-07 (10th Cir. 2005).
The principal disagreement with the majority conclusion concerns its determination that the only legitimate inquiry ended after citing the driver and that the officer had no right to prolong the stop and to investigate the overdue rental agreement. With this I disagree and therefore dissent.