¶1specially concurring:
¶2While I agree with the majority’s decision to remand this case for determination of the pretext question, I write separately because the majority does not clearly define the test to be used by the trial court in making that determination. I am concerned that the majority opinion may be interpreted to mean that, where the police are found to have mixed motives for conducting a search, the dominant motive prevails. Thus, if the trial court were to find that the police were primarily searching for drugs, and the inventory search was secondary, it might consider itself required under the majority opinion to suppress the drugs. That is not the correct test.
¶3The dominant motivation or intent of the police is not dispositive of the motion to suppress. A pretext claim is not established if “the Fourth Amendment activity undertaken is precisely the same as would have occurred had that intent or motivation been entirely absent from the case.” 1 Wayne R. *81LaFave, Search and Seizure § 1.4(e), at 92 (2d ed. 1987) (citing Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), and Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960)).
¶4Professor LaFave gives several examples to explain the application of this principle, including the following situation, which seems analogous to the present ease:
[ I]f X’s car is searched in the hope or expectation of finding therein evidence of Crime B, but that search was an inventory which would have been made in any event ... the evidence is admissible.
¶5Id. at 93. The treatise characterizes this as “a sound result” and states:
When the action would have been taken against X even absent “the underlying intent or motivation,” there is no conduct that ought to have been deterred, and thus no reason to bring the Fourth Amendment exclusionary rule into play for purposes of deterrence.
¶6Id. (emphasis in original) (footnotes omitted). Thus, if the trial court finds that the police had mixed motives but that a proper inventory search occurred, the evidence should not be suppressed.
¶7With this addition I concur.
¶8VOLLACK, J., joins in this special concurrence.