concurring.
The issue presented here is a most difficult one and, as my brothers point out, the Supreme Court has not yet provided us with definitive guidance. Our task, therefore, is to extract from the existing precedent a principle sufficiently broad to permit resolution of this case. The majority’s thoughtful and, indeed, scholarly discussion of the relevant constitutional concerns leads it to the correct resolution of the case before us. In accomplishing this task, however, the majority formulates a test that is broader than that needed to resolve the problem before us and, indeed, broader than that established by the Supreme Court precedent upon which it relies for its legitimacy. Read literally, the test formulated today requires a rigidity that will, in future cases, ill serve what Chief Justice Rehnquist has termed “the overarching principle of ‘reasonableness’ embodied in the Fourth Amendment.” United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983).
The starting point of the analysis is, in light of the recent Supreme Court precedent, not in serious dispute: in determining whether police conduct is “pretextual,” an objective analysis of the police conduct is appropriate. A court is not to inquire into the officer’s subjective intent. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); United States v. Hensley, 469 U.S. 221, 232-33, 234, 105 S.Ct. 675, 682-83, 83 L.Ed.2d 604 (1985); Villamonte-Marquez, 462 U.S. at 584 n. 3, 103 S.Ct. at 2577 n. 3; Scott v. United States, 436 U.S. 128, 136—37, 98 S.Ct. 1717, 1722-23, 56 L.Ed.2d 168 (1978). It is at the next step in the analysis that the precedent becomes ambiguous and disagreement understandably occurs. As our colleagues on the Tenth Circuit put it, we must determine “what objective elements are dispositive in determining whether a pretextual intrusion is unconstitutional.” United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). In resolving this issue, many thoughtful jurists and commentators take the position that “the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of an invalid purpose.” United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986); see also Guzman, 864 F.2d at 1517; United States v. Causey, 834 F.2d 1179, 1186-90 (5th Cir.1987) (en banc) (Rubin, J., dissenting); 1 W. LaFave, Search and Seizure § 1.4(e), at 92-94 (2d ed.1987). By contrast, others have maintained that a more narrow inquiry ought to measure the objective reasonableness of police actions. As the majority in Causey put it: “[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.” 834 F.2d at 1184.
The first approach certainly can claim that it promotes the values underlying the fourth amendment. It permits the court to focus on the “reasonableness” requirement of the fourth amendment, but does not require an inquiry into the officer’s subjective intent. See Guzman, 864 F.2d at 1517. Under this approach, the court can inquire into whether the officer’s actions conformed with the usual conduct of law enforcement officers similarly situated. Thus, there is accountability for the arbitrary exercise of discretionary police power. This approach is not, however, without its institutional costs. The required inquiry is, in practical application, not very different from that which would be undertaken if a subjective approach were employed. Law enforcement authorities would operate under the apprehension that their actions — which often require the exercise of great discretion — would be subject to misinterpretation months later in the antiseptic atmosphere of the courtroom.
*1043In any event, as my brothers point out, it may well not be open to us to pursue this first route. In Villamonte-Marquez, the Supreme Court appeared to reject definitively the argument that deviations from normal police practice — albeit deviations still within the bounds of legal authority— may be considered as evidence of unreasonableness. See Villamonte-Marquez, 462 U.S. at 584 n. 3, 103 S.Ct. at 2577 n. 3 (citing Scott, 436 U.S. at 135-39, 98 S.Ct. at 1722-24). Notably, however, the Supreme Court has not articulated the rigid position, suggested by the panel majority, that the existence of legal authority to undertake an action precludes all judicial inquiry into the reasonableness — in the constitutional sense — of the action. The Court has left open, and I suggest we should leave open, the possibility that gross abuse of authority, antecedent to the police action directly under scrutiny, might require a determination that the police action, taken as a totality, violates the fourth amendment. The necessity for this “safety valve” was described in stark terms by Judge Patrick Higginbotham in his separate opinion in Causey:
Serious questions abound in the use of otherwise valid warrants to pocket a onetime pass to the strictures of the fourth amendment rather than to prosecute the offense for which probable cause was found. Stated more directly, there is a risk that with the storage and retrieval capability of today’s computers, warrants may function in a manner similar to the old general writs of assistance.
Causey, 834 F.2d at 1186 (footnote omitted). Law enforcement authorities who stockpile arrest warrants for traffic offenses or nonpayment of library fines in order to have a “ready-reserve” when arrest (or harassment) of a particular citizen is desired deserve no protection in the name of judicial restraint. While the test formulated today may be read as precluding judicial inquiry even in the face of such lawlessness, I have no doubt that, when faced with such an abuse, the court would not countenance it.
In the case before us, we have no such gross abuse. Viewed objectively, Mr. Trigg was arrested because he was observed driving with a suspended license. The police had acquired that information lawfully and even confirmed its accuracy before making the arrest. The arrest and search were conducted within the limitations on police conduct established by law. The exclusionary rule is meant to deter unlawful police activity that results in unwarranted “incursions to an individual’s personal liberty.” United States v. Hawkins, 811 F.2d 210, 215 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). Here, there was none. That the consequences of the lawful arrest were different than those that usually accompany an arrest for a suspended driver’s license is the product of Mr. Trigg’s risk-taking, not any sanctionable conduct on the part of the officers. Accordingly, I join the judgment of the court.