dissenting:
I respectfully dissent. Contrary to the majority, I conclude that the initial stop of Hernandez’s vehicle was not pretextual. Because I also conclude that the subsequent searches of Hernandez’s vehicle and residence were permissible, and that sufficient evidence supported Hernandez’s conviction on count II, I would affirm the judgment of the district court.
As the majority notes, our 'prior cases demonstrate some confusion about the proper test for. determining whether a stop is pretextual. Op. 445-46 & n. 2. Even assuming the majority is correct that this circuit applies an objective “reasonable officer” test, however, I believe the majority has misapplied that test. The Fourth Amendment to the United States Constitution allows an officer to make an investigatory stop when he has an “articulable suspicion” that a law has been violated. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). A “reasonable officer” who has an articulable suspicion that a suspect has broken the law presumably would stop that suspect. The fact that the officer also may have hoped to discover evidence of other crimes does not necessarily render the stop invalid. If a reasonable officer ‘“would have’ made the stop anyway,” it is not pretextual. See United States v. Cannon, 29 F.3d 472, 476 (9th Cir.1994).
In this case, the stop was not pretextual because a reasonable officer would have stopped Hernandez and Martinez based on his articulable suspicion that they had parked illegally, under Mont.Code Ann. § 61-8-353 (making it illegal to park on a highway outside of a business or residential district). The majority’s contrary conclusion rests on its finding that the alleged offense occurred in a “business district,” and thus did not in fact violate the state statute. The error in this analysis is that it assumes that a “reasonable officer” will only make a stop when the law in fact has been violated. The proper question, however, is - not whether the officer correctly believes that an offense has been committed, but whether the officer has an articulable suspicion to believe an offense has been committed. United States v. Millan, cited by the majority, supports this view. In Millan, the court found the stop pretextual under the “reasonable officer” test where the government had established neither that the defendant’s conduct (driving with a cracked windshield) was illegal nor that the windshield’s condition “actually appeared unsafe to the officers.’'1 36 F.3d 886, 889-90 (9th Cir.1994) (emphasis added). Millan thus implies that a stop may be objectively reasonable (and thus non-pretextual) where officers identify an apparently unsafe condition, even if the condition is not actually illegal.
In this case, the cars were parked on the travelling portion of Scott Street, even though they could have pulled onto the shoulder. Officer Bomar was familiar with the street and had not previously seen people park on the travelling part of the roadway. Photographs of the location disclose that the street is not obviously in a “business district.” Even if Officer Bomar was mistaken-that Hernandez and Martinez had parked *448their ears illegally, this fact does not undercut his articulable suspicion for believing that an offense had been committed, and accordingly, it does not render the stop pretextual.
In addition to finding the initial stop of Hernandez permissible, I also conclude that the officers’ subsequent conduct was proper and therefore does not provide a basis for suppressing any of the evidence. Furthermore, I reject Hernandez’s argument that Martinez’s “uncorroborated” testimony is an insufficient basis to sustain his conviction for possession with intent to distribute or aid or abet others in the distribution of marijuana. I therefore would affirm the district court’s judgment in its entirety.