dissenting.
I respectfully dissent. It is established that if a reasonable police officer would not make an arrest for a crime absent an intent to gather evidence of a different crime, then any evidence gathered as a result of the arrest must be suppressed. In this case, the trial court made a finding of fact that the police would not have arrested Ortiz on the peeping tom charge but for the purpose of gathering evidence to be used against him on the rape charge. Consequently, I believe that unless the trial court’s finding of fact was clearly erroneous, this Court must reverse the trial court’s denial of Ortiz’s motion to sup*755press.
The facts of record show that on April 23, 1995, Ortiz’s former roommate, Ms. Michelle Stanley, received a telephone call from her next-door neighbor, Mr. Scott Seigler, who informed her that Ortiz was outside of her apartment, peeping into it. Ms. Stanley looked outside, and saw Ortiz hiding behind some bushes near her apartment. She then called the police, who came to her apartment and spoke with both her and Mr. Seigler. Both Ms. Stanley and Mr. Seigler told the police that they knew Ortiz, and they both identified Ortiz as the peeping tom. In addition, Ms. Stanley told the police about the voyeuristic and bizarre behavior that Ortiz had engaged in while they were roommates. When asked whether she would swear out a warrant against Ortiz, Ms. Stanley asked police whether Ortiz had a history of peeping tom. If so, she testified, she would have sworn out the warrant; otherwise, she preferred not to get involved.
Despite having two eyewitnesses to the peeping tom incident, the police did not press charges against Ortiz. Two weeks after the peeping tom was reported to police, a rape occurred at Ms. Stanley’s apartment complex. The officer who had taken the peeping tom report sought out and spoke with the detective investigating the rape, and told him that Ortiz had been identified as a peeping tom at the complex. The officers investigating the rape then spoke with Ms. Stanley, and she confirmed the information she and Mr. Seigler had reported at the time of the peeping tom incident. Again, Ms. Stanley was reluctant to press charges against Ortiz for peeping tom.
Based upon the information gathered on the peeping tom incident, the detective obtained a warrant for Ortiz’s arrest on a charge of peeping tom. However, upon being arrested pursuant to that warrant, Ortiz was booked on charges of peeping tom, rape, and burglary. After he was booked, samples of Ortiz’s blood, saliva, and hair were taken by the police — hardly standard treatment for a suspected peeping tom. At this same time, the police took a photograph of Ortiz to be used in a photographic line-up, and also photographed Ortiz’s naked torso. The photographic line-up including Ortiz’s photo then was taken to the rape victim, who identified Ortiz as her assailant. At this same time, the victim indicated on a diagram the location of a mole she had felt on her assailant’s back, and it matched the photograph of Ortiz’s naked back.
It was then that warrants were obtained to arrest Ortiz on rape and burglary, and to search his residence. That search uncovered underwear that resembled a pair that the rape victim had identified as having been taken from her by her assailant, which were later determined to contain fibers consistent with the carpeting of the apartment where the rape occurred. Also obtained at Ortiz’s residence were provocative photos of Ms. Stanley that had been taken from her bed*756room. The photographic line-up including Ortiz’s photo, the provocative photos of Ms. Stanley, and the panties obtained from Ortiz’s residence all were introduced into evidence at trial.
At the hearing on Ortiz’s motion to suppress, the detective who arrested Ortiz on the rape charge testified that had it not been for the fact that Ortiz was a suspect in the rape case, he would not have been arrested on the peeping tom charge. The trial court found as a matter of fact that except for the rape case, the peeping tom charge would not have been pursued. The trial court also found that when he arrested Ortiz on the peeping tom charge, the arresting officer’s primary motivation was to investigate the rape charges.
The majority affirms the trial court’s denial of the motion to suppress by relying upon case law that concerns challenges to searches made incident to arrests based upon probable cause.1 The majority appears to reason that so long as the arrest of Ortiz for peeping tom was based upon probable cause, he could be arrested on that charge, irrespective of whether the arrest was motivated by a subjective intent to gather evidence to support a charge of rape. I respectfully submit that this case law relied upon by the majority is highly distinguishable from this matter, and that other case law relied upon by this Court contradicts the majority’s holding.
1. Despite the majority’s assertion to the contrary, the case law it relies upon is highly distinguishable from this matter. Hunter and Taylor, supra, both addressed motions to suppress evidence gathered from searches made incident to arrests. In each of those cases, the Court of Appeals reasoned that because the initial arrests were based upon probable cause, and therefore were valid, any evidence gathered as a result of searches made incident to those arrests was not subject to suppression.2 Of course, in this case, the evidence that was sought to be suppressed was not gathered as the result of a search incident to Ortiz’s arrest for peeping tom. Furthermore, neither Hunter nor Taylor involved express findings by a trial court that an arrest was motivated by an intent to gather evidence of a wholly separate crime. Hence, the majority’s reliance upon Hunter and Taylor is misplaced.
2. United States v. Smith3 establishes that when the evidence, viewed objectively, shows that an arrest was made for a crime not in order to pursue charges on that crime, but rather in order to investigate a wholly separate crime, the arrest is impermissibly pretextual.4 *757Any evidence obtained as result of such a pretextual arrest must be suppressed as fruit of an illegal seizure.5
Smith also establishes that the inquiry engaged in by the majority — whether or not the arrest on the peeping tom charge can be justified as based upon probable cause — is not determinative of whether the seizure was impermissibly pretextual. In fact, as explained below, the Smith opinion states that even if the officer was acting upon probable cause, the seizure nonetheless may have been pretextual and therefore invalid.
In determining whether a seizure made by the police is invalid as pretextual, the proper inquiry is not whether the police officer could have made the seizure, but rather whether under the same circumstances a reasonable officer would have made the seizure in the absence of an illegitimate motive to obtain evidence of a different crime.6 Thus, under Smith, the relevant inquiry in this case is not whether the arrest of Ortiz for peeping tom could have been made because there was probable cause, but rather whether an objectively reasonable officer would have made the arrest absent an improper motive to gather evidence of the rape charge.
It is obvious that there was probable cause to arrest Ortiz for peeping tom. However, there can be no dispute that a reasonable officer would not have arrested Ortiz for peeping tom absent an improper intent to gather evidence on the rape. The evidence of record shows that for the two weeks preceding the rape, the police knew that Ortiz had been identified by two separate witnesses as the peeping tom, yet no arrest was made. The trial court made an explicit finding of fact that Ortiz would not have been arrested on the peeping tom charge absent the arresting officer’s intention to gather evidence on the rape. As found by the trial court, it was only when Ortiz became a suspect in the rape case that he was arrested for peeping tom, and that arrest was made for the purpose of gathering evidence on the rape charge. Hence, unless the trial court’s finding of fact was clearly erroneous, which it was not, there can be no dispute that Ortiz’s arrest for peeping tom was impermissibly pretextual, and the trial court erred in denying the motion to suppress.
3. The error resulting from the trial court’s denial of Ortiz’s motion to suppress cannot be considered harmless. Evidence obtained as a result of a pretextual arrest must be suppressed.7 The pretextual arrest in this case resulted in the State’s obtaining of photographs of *758Ortiz which enabled the State to identify him as the rapist. The warrant to search Ortiz’s residence also flowed directly from the pretextual arrest, meaning that the panties and the photos of Ms. Stanley also were tainted evidence. In light of the fact that all of this evidence should have been suppressed, it cannot be said beyond a reasonable doubt that but for the trial court’s error, the jury’s verdict would have been no different.8 Hence, I believe that this Court should reverse Ortiz’s conviction and order a new trial.
Decided June 3, 1996. Devon A. Orland, for appellant. J. Tom Morgan, District Attorney, Jeffrey H. Brickman, Desiree S. Peagler, Assistant District Attorneys, for appellee.Hunter v. State, 190 Ga. App. 24 (378 SE2d 352) (1989); Taylor v. State, 181 Ga. App. 703 (353 SE2d 619) (1987).
190 Ga. App. at 25; 181 Ga. App. at 704.
799 F2d 704 (11th Cir. 1986), cited with approval in Tate v. State, 264 Ga. 53, 57 (440 SE2d 646) (1994).
See Smith, 799 F2d at 710-711. The actual issue in Smith concerned the pretextual bases for an investigatory stop based upon reasonable suspicion. However, I believe that this *757issue is sufficiently analogous for Fourth Amendment purposes to provide controlling precedent in cases such as this one, dealing with pretextual arrests.
Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756) (1991).
Id.; see United States v. Cruz, 581 F2d 535, 542 (5th Cir. 1978).
Smith, 799 F2d at 709; see Cruz, 581 F2d 541-542.
Id.