concurring:
I concur in the panel’s conclusion that the stop of Millan’s car was pretextual and that, as a result, all evidence obtained as a result of the stop must be suppressed. I write separately, however, because I believe that the majority’s discussion of the pretextual stop doctrine, in Part II of its opinion, misstates and misapplies Ninth Circuit law. For this reason, I do not join in Part II of the panel opinion.
The majority’s statement that “[o]ur circuit’s caselaw has not been entirely consistent in the test it has applied to determine pretext,” Majority Opinion at 888, is accurate only up to a point. It is true that some Ninth Circuit eases have in the past been interpreted as mandating a subjective inquiry into police officers’ intentions when analyzing a pretextual stop claim, whereas others applied an objective, “reasonable officer” test. Any inconsistency, however, was reconciled by United States v. Cannon, 29 F.3d 472 (9th Cir.1994).
Cannon surveyed the Ninth Circuit pre-textual stop cases, as well as those of other circuits. The opinion noted that “[s]ome of our language has implied that [the] subjective inquiry is required,” id. at 475, but went on to hold that the prior cases were in fact consistent with the objective test. Specifically, Cannon squarely held that when faced with a claim that a traffic stop was pretextual, “courts should inquire whether a reasonable officer ‘would have’ made the stop anyway, apart from [his or her] suspicions about other more serious criminal activity.” Id. at 476 (internal quotes in original). This objec*891tive test limits our inquiry in the present ease.
Cannon is the law of the Ninth Circuit on this issue. Unless and until it is overturned by the en banc court, we are bound to apply the objective test that it mandates. I cannot agree, therefore, with the majority’s analysis of the present case, which uses both the objective and subjective tests. After Cannon, the subjective analysis is simply irrelevant.
I take further issue with the majority opinion’s statement of the facts and analysis of those facts in its “objective” section. Majority Opinion at 887-88, 889-90. Officer Roll and Trooper Larusso allegedly pulled Millan over because they noticed that his windshield was cracked. I agree with the majority that driving with a cracked windshield does not appear to be illegal under Nevada law and therefore cannot support the stop. Majority Opinion at 889 & n. 2. Further, the Magistrate Judge found that Millan’s windshield was “by no means [so] extensively damaged,” ER 187, that a reasonable officer would have considered it a safety hazard and pulled the car over on that basis. This finding is not clearly erroneous. See United States v. Bowhay, 992 F.2d 229, 230 (9th Cir.1993). On the basis of these facts alone, I would therefore hold that a reasonable officer would not have stopped Millan, “apart from [his or her] suspicions about other more serious criminal activity.” Cannon, 29 F.3d at 476.
The majority goes on, however, to discuss the fact that the stop was suggested by Larusso, a city interdiction officer, and that Roll had been trained in the highway drug interdiction program. These additional facts are irrelevant under Cannon’s objective test and might suggest that any traffic stop made by an interdiction-trained officer is for that reason alone suspect. In my view, this is a misapplication of the Cannon test.
The Cannon objective test focuses on the conduct of the suspect and whether a reasonable officer would make a traffic stop when confronted with such conduct. See, e.g., Cannon, 29 F.3d at 476 (reasonable officer would stop motorist for driving with a suspended license); United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (reasonable officer would stop motorist for “speeding carelessly in violation of Oregon law”). In the present case, the fact that Larusso and Roll may have had interdiction training is not relevant to deciding whether a reasonable officer would stop a motorist with a cracked windshield. Moreover, the interdiction program is not an evil or sinister plan by the Nevada Highway Patrol, but an effective and laudable means for Nevada to prevent drug trafficking on its highways. I therefore find that part of the majority’s discussion of the objective test to be inappropriate.
For the above reasons, I concur in the judgment and in the panel opinion, with the exception of Part II.