dissenting.
I must respectfully dissent from the Court’s holding in this ease that the prosecution’s action in declining to oppose a motion to suppress evidence amounts to a “bad faith” denial of a criminal defendant’s right to a preliminary hearing. While Rule 5.1(a) of the Tennessee Rules of Criminal Procedure allows a suppression motion to be considered at the preliminary hearing stage, nothing in the rule requires the filing of such a motion. Indeed, if a defendant wishes to avail himself of the discovery benefits of a preliminary hearing, he may wish to hear all of the prosecution’s evidence and reserve the right to seek suppression of the evidence in criminal court should an indictment or presentment be eventually returned. Similarly, there is no duty on the part of the prosecution to actively oppose a motion to suppress at the preliminary hearing stage. Whether evidence will be suppressed is a decision to be made by the judge at the hearing regard*909less of whether the motion to suppress is contested. In this case it was the general sessions judge, not the prosecutor who suppressed the evidence at Appellant’s insistence, and then dismissed the charges. If the State had opposed the motion to suppress and had lost on the issue, the prosecution would nevertheless have the right to present the suppressed evidence to the grand jury and obtain an indictment or presentment based on that evidence. State v. Dixon, 880 S.W.2d 696, 699 (Tenn.Crim.App.1992).
I fail to see what difference it makes here that the State elected not to contest the motion to suppress. In other words, whether opposed or not, Appellant got exactly what he asked for, suppression of evidence against him.
“Bad faith” on the part of the State in this area of the law has heretofore been thought to be the action of intentionally procuring a continuance of the preliminary hearing beyond the 30-day time period of Rule 5(e), Tennessee Rules of Criminal Procedure, for the purpose of presenting the case directly to the grand jury thereby depriving the defendant of a preliminary hearing. See, e.g., Moore v. State, 578 S.W.2d 78 (Tenn.1979); State v. Mackey, 638 S.W.2d 830 (Tenn.Crim.App.1982) (holding State’s failure to oppose a continuance of preliminary hearing at the request of the defense is not “bad faith” and presentation of case to grand jury during continuance was proper.) A mere failure to contest defense motions that, if granted, may result in a continuance of the preliminary hearing or even a dismissal of the charges has never heretofore been thought to constitute “bad faith”.
The case of State v. Gant, 622 S.W.2d 75 (Tenn.Crim.App.1981), is directly on point to this issue. In Gant the defendant at the preliminary hearing stage filed a motion to suppress eyewitness identification testimony, and the State elected not to oppose the motion. Suppression was granted and the charges dismissed. The case was presented to the grand jury and indictments were returned. Although the defendant in Gant alleged prosecutorial “bad faith” under circumstances virtually identical to those presented in the instant case, this Court rejected any notion that the prosecution had improperly denied the defendant a preliminary hearing. I see no difference in Gant and in the instant case and no reason to depart from the holding in Gant.1
Accordingly, I would reverse the judgment of the trial court and remand this case for trial on the presentment returned by the grand jury.
. The trial court and the majority suggests that the record reflects a pattern on the part of the prosecution in this case of declining to oppose suppression motions at preliminary hearings and then presenting the case to the grand jury when the charges are dismissed. Apart from the statements of defense counsel, which are not evidence, that the prosecution utilizes such a tactic there is nothing in the record to support this finding. Even if evidence of a pattern were present, I fail to see how a defendant can complain of the denial of a preliminary hearing when he himself sought and obtained suppression of evidence and the dismissal of charges which foreclosed a full hearing with its concomitant discovery benefits.