dissenting.
A majority of this court today has condoned the use of, and in effect said that it is proper and right for the prosecution to simply write, a letter to a person (in this instance an attorney) and say: “You are hereby directed immediately to turn over [certain] evidence to the District Attorney’s office to be used in the prosecution of [a criminal case]. Failure to do so may result in criminal prosecution for withholding evidence. . . .”
The majority treats cavalierly the statement quoted: “Failure to *29do so may result in criminal prosecution for withholding evidence.” Threats of criminal prosecution are seriousl
The majority apparently sees nothing in the least harmful or unreasonable in approving such a threat. Can the police come to your door in the night and demand, under threat of arrest, that you give them whatever in your house they think might assist them in a criminal case? Can the state prosecutor hand-deliver a letter to you commanding you to turn over whatever he desires, or face prosecution, ergo imprisonment? Can any policeman stop you on the street or in your car and order you to hand over your purse or wallet or briefcase, or anything belonging to someone else which you control or possess? Wherein lies the difference?
Nothing now stands in the way of the State’s full enjoyment of this succulent fruit, except, apparently, the imposition of a burden newly placed upon the criminal defendant to prove the particular evidence was actually introduced at trial. This burden is terrible, awful to contemplate in any trial, but in a complex trial with dozens and dozens of documents obtained from many sources, and all commingled and confused, the burden is near impossible. And so, this Golgothian obligation is not a hinderance to the State’s gathering of evidence, for the mere imposition of this defendant’s burden gives license to the State to demand anything by threat, so long as it is not actually introduced at trial, or is used in a way that cannot be traced.
It is disturbing that the decisions written by the United States Supreme Court, the federal and all state courts upholding the Fourth Amendment constitutional rule of law and warrant against oppressive, intrusive state actions, have been apparently overlooked.
The majority asserts the evidence turned over by “Claire” was “just partly” analyzed by the State and, although tending to show appellant was spending more than he was drawing in compensation as clerk, “they were not used at trial.” The contextual truth, proven unequivocally by the record, is that the detective analyzed as much of the evidence as he pleased, wrote a report with conclusions, and gave the report to the DA; and then he gave the evidence to the DA, who reorganized it and rearranged it and admitted in court, in defense of using and introducing some arguably tainted evidence from defendant’s mailbox, that the mailbox evidence had gotten mixed in with the evidence turned in by Mrs. Floyd “so that the officers cannot identify specifically what” came in the mailbox or was gotten from Mrs. Floyd. And he argued that the use of the so-called mailbox evidence obtained by state warrant in September 1986, was somehow justified or harmless because some of it had been returned to Mrs. Floyd, and “in any event on January 10, 1987, they were subsequently turned back over to the police [by Mrs. Floyd] and they came back into the possession of the police in January anyway, at *30least some of the items probably. I think it is very difficult to tell because of the volume of mail that was coming in. The offices cannot identify specifically what it was.”
Thus, the prosecutor himself admits he very well, even presumably, might be introducing some of the evidence that came from Mrs. Floyd.
The statement that none of the evidence was used at trial is simply not true. There is, of the dozens and dozens of documents in evidence, State’s Exhibit 16.06, which is a series of American Express charge receipts labeled “cardmember’s copy,” and for which there is no warrant, as there was for another Amex account bearing another account number. The S16.06 receipts showed an expenditure of more than $2,500 for unspecified travel, on the account of Wayne Floyd, “Clerk of State Court.” Assuredly these came from the possession of the “cardmember” (Floyd), and not from the offices of American Express, for the Amex agent at trial merely identified S16.06, a “cardmember’s copy” which the State produced to him, and said he had “copies” of them in his files. Assuredly they did not come in the mailbox in September 1986, because one is dated January 1985, and the other is dated July 1986. At trial, while the detective was identifying the boxes of evidence he received from Mrs. Floyd, the prosecutor openly removed an American Express folder from a box because, he said, it did not “belong” there. It must reasonably be presumed that S16.06, cardholder’s copies of receipts of an Amex account, for which there was no warrant, and which presumably did not come out of the mailbox up to two years after they issued, may well have come from the evidence turned over by Mrs. Floyd, and were in the “errant” Amex folder removed from the box at trial by the prosecutor. The State certainly did not prove otherwise.
Moreover, merely removing a file from the box because it did not “belong” there is a clear admission of commingling and confusion of evidence, so that it cannot be represented as a fact that “the evidence in question was not tendered or referred to at trial,” and that “none of [its] contents were [sic] used in the trial or to gain evidence which was admitted at trial.”
While it is true the trial court held a hearing on the motion to suppress and denied it, as well as the motion to dismiss at trial, this alone does not mean it found the State had borne its burden to prove none of the evidence was used; the trial court deemed the letter not to be coercive and, therefore was not overly concerned with whether any evidence thus produced would be used. No factual basis whatever exists to assert none of the evidence was used or introduced.
It is also patently untrue that the evidence “clearly shows that she did not wish to assist in the defense but cooperated from the beginning with the State.” In fact the evidence clearly shows she was *31very concerned lest she be thought to be “cooperating” with the State, and that she expressly avoided any such implication, for she was aware of the need to protect herself as an attorney who had (or did have) an attorney-client relationship with the defendant. She expressly denied to the questioning prosecutor that she had ever, at any time, offered to donate legal assistance to the State in its prosecution. It may indeed be a reasonable inference that “she became anxious to distance herself from [Floyd]”; but how does this fact prove that therefore her particular response to the prosecutor’s threat was entirely voluntary?
There is no evidence that Mrs. Floyd “was willing, if not anxious, for the State to have this evidence.” This is distortion of the facts in the record; it is sheer imagination, as is the proof of “voluntariness” which the majority sees emanating from the fact that “Claire’s” attorney requested the prosecutor to “put it in writing.” The greenest lawyer seeking to protect his client demands a threat be put in writing.
But finally, the marvel of this fact-finding expedition is the naked statement, without sequiter, that the actual threat in the letter “was added after the assistant consulted the district attorney.” What does this contribute towards proving the threat was not a threat, as the majority implies?
The whole truth as testified to by the prosecutor is that he and his boss decided to add the threat after his conversation with Mrs. Floyd’s attorney. Yet the majority’s version of this episode is offered in proof of the voluntariness and eager cooperativeness of “Claire’s” actions, which are further proved, it seems, by the “fact” that she did not again consult with her lawyer after receiving the letter, but “called the detective about where to deliver the records and then did so, obtaining a receipt she had prepared.” What do these statements mean? What do they prove? They are, respectively, a statement reciting only half of the evidence and then a statement which proves nothing; yet apparently their mere presence in the body of overwhelming “facts” is mesmerizing.
In Rogers v. Richmond, 365 U. S. 534 (81 SC 735, 5 LE2d 760), a case involving a coercive threat, the United States Supreme Court condemned this sort of judicial fact-finding, as well as the “facts” so found: “In the present case, while the trial judge ruled that each of petitioner’s confessions was ‘freely and voluntarily made and accordingly was admissible in evidence,’ he reached that conclusion on the basis of considerations that undermine its validity. He found that the pretense of bringing petitioner’s wife in for questioning ‘had no tendency to produce a confession that was not in accord with the truth.’ . . . [The Connecticut appellate court held]: ‘Proper court authorization should have been secured before the defendant was removed from the jail. There is nothing about his illegal removal, how*32ever, to demonstrate that he was thereby forced to make an untrue H statement. The same can be said concerning the refusal to admit I counsel to see the defendant . . . before he was brought before the I coroner.’ [Cit.]” (Emphasis supplied.) Id. at 541-543. I
The Supreme Court said in Rogers, at pp. 545-546: “We are I barred from speculating — it would be an irrational process — about the weight attributed to the impermissible consideration of truth and falsity which . . . may well have distorted, by putting in improper perspective, even [the trial court’s] findings of historical fact. . . . In coerced confession cases coming directly to this Court from the highest court of a State in which review may be had, we look for ‘fact’ to the undisputed, the uncontested evidence of record. [Cit.] This is all that we may look to, in the absence of detailed state-court findings of historical fact. ... Of course, so-called facts and their constitutional significance may be so blended that they cannot be severed in consideration. . . . [I]n any event, there must be a foundation in fact for the legal result. [Cit.]” Id., 546.
In this case, the entire “factual” construction by the majority concludes (in reality, speculates) that this threatening letter did not coerce Mrs. Floyd, and that her fears of being implicated in Floyd’s crimes and her concern to protect herself as a lawyer had no impact at all upon her response to the letter or vice versa, and that the evidence, particularly the fact that her attorney requested the demand be in writing, clearly proved “Claire” happily, eagerly and anxiously cooperated with the State. These speculations represented as “fact” are not merely false. They are also irrelevant, and they apply the wrong legal standard.
In Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797), police officers merely pretended to have a warrant when they did not. Nothing so unpleasant as a threat of criminal prosecution was made. The subject of the search, Bumper’s grandmother, testified she voluntarily, of her own free will, allowed the officers to search her house. Yet the Supreme Court held her consent was not voluntary, as a matter of law, for any consent was vitiated by the false claim of “lawful authority” to search, by which the officers “announce [d] in effect that the [subject had] no right to resist the search.” The officers’ act of pretending to have a warrant was “instinct with coercion”; that is, it was inherently coercive in inception and in nature, though by her own account it apparently brought Bumper’s grandmother no actual fear. The threat of criminal prosecution made in this case was infinitely worse.
Although appellant does not complain on appeal of the trial court’s refusal to suppress this illegal evidence, he complains of the prosecutor’s misconduct in coercing the evidence, for which the obvious first remedy would be suppression. United States v. Morrison, *33449 U. S. 361, 365-366 (101 SC 665, 66 LE2d 564). The allegation of prosecutorial misconduct therefore encompasses suppression of the evidence as a lesser remedy than dismissal. Moreover, the entire incident is one error, enumerated sufficiently to include the trial court’s failure to suppress the evidence, for the coerced production and use of the evidence are inextricably intertwined with the appellant’s right to have it suppressed if it is illegal. OCGA § 5-6-48 (f); see Clark v. State, 180 Ga. App. 280 (2) (348 SE2d 916).
In the Fourth Amendment right to be free from unreasonable search and seizure inheres the fundamental principle that the government does not have the right to simply demand whatever evidence it likes, under threat of criminal prosecution or other penalty. This is the bedrock upon which the Fourth Amendment rests. Out of it spring the requirements for warrant, probable cause, consent, lawful arrest, or exigent circumstances. See generally OCGA Title 17, Chapter 5. .
A third party possessing common authority over or other sufficient relationship to the premises or effects sought to be inspected or seized, may indeed consent voluntarily to search or seizure. See United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242). But when the prosecution seeks to justify such a warrantless search or seizure by proof of consent, the burden is upon the prosecution to prove the consent was voluntary. Id.; Schneckloth v. Bustamonte, 412 U. S. 218, 224-265 (93 SC 2041, 36 LE2d 854). Whether the consent to a seizure was voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined by a careful scrutiny of the “totality of all the surrounding circumstances,” the inquiry being whether the seizure is the product of an essentially free and unconstrained choice of the party, or whether his will was overturned and his capacity for self-determination critically impaired. Id., pp. 225-226.
The United States Supreme Court in Schneckloth asseverated that the Fourth and Fourteenth Amendments require that a consent “not be coerced, by explicit . . . means, by implied threat or covert force.” Id., p. 228. If a search or seizure is found to be coerced “by threats or force, or granted only in submission to a claim of lawful authority,” it has been found invalid and the search or seizure unreasonable. Id., p. 233. But an act which is coercive by its nature, like this one, vitiates any supposed consent, {Bumper, supra) and when such an act is proved, the question of voluntariness is not a matter for speculation. Rogers, supra.
It is unnecessary to determine whether in this case the demand and threat were made upon Mrs. Floyd in her capacity as appellant’s wife or as his attorney; or whether she was in fact his wife and/or his attorney when this letter was served upon her; or whether any privi*34lege was breached in either event; or whether she had been given authority of the documents or had possession of or access to the documents by virtue of her position of wife or attorney; or whether she could, in any case, have validly consented to turn over the documents as evidence. Viewing the prosecution’s position in all these matters in its most favorable aspects, Mrs. Floyd’s delivering up of this evidence was not voluntary. It was coerced, under a false claim of lawful authority. Bumper, supra. The threat informed her she had no right to resist the demand. Id.
She could not be prosecuted for “withholding evidence,” for it is not a crime in Georgia simply to “withhold evidence,” whatever that means. She could not even be prosecuted for obstruction of justice (see OCGA § 16-10-24), for one does not obstruct justice except by “knowingly and willfully obstructing] or hindering] any law enforcement officer in the lawful discharge of his official duties,” (emphasis supplied), which this demand by threat clearly was not.
But this particular threat, though empty, was never idle, for the mere tender of an empty threat ensured the prosecutor a degree of immunity from suspicion of coercion, while at the same time, since he insisted on it so seriously as to put it in writing, he plainly meant something by it.
In any case, it is not necessary that Mrs. Floyd actually state that she was coerced and her delivery of the evidence was involuntary. The threat was “instinct with coercion,” because the prosecutor “announce [d] in effect that [Mrs. Floyd had] no right to resist the [seizure],” (Bumper, p. 550) under threat of criminal prosecution.
With coercive threat proven, the prosecution has the burden to prove that none of the evidence obtained thereby was used. In Wong Sun v. United States, 371 U. S. 471, 485 (83 SC 407, 9 LE2d 441), the Supreme Court said: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” (Emphasis supplied.) Under this statement of the law, I cannot find this constitutional violation was harmless beyond a reasonable doubt (see Shepherd v. State, 239 Ga. 28, 29 (235 SE2d 533); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133)) because as the State concedes, it was analyzed and used to show appellant spent more money than he had incoming, and to establish his cash flow; clearly the State has failed to show none of it might have found its way into court, and in fact I conclude from the record that some of it did find its way into court and incriminated the defendant *35by its nature.
“ ‘Whenever a party is deprived of his rights, the presumption of the law is that he has been injured unless the contrary plainly appears.’ ” Massey v. State, 220 Ga. 883, 894 (142 SE2d 832).
I do not think that the prosecutor’s misconduct in obtaining this evidence, admittedly using it in the prosecution, and keeping it in such a state that it could not be (or was not) said one way or the other exactly what was contained in it or whether it was actually introduced, should be laid at the appellant’s feet in the form of forcing appellant to prove this evidence was actually used at trial. To do so would invite the State to profit from its unlawful seizure of the evidence by failing to keep account of what was. seized.
Whether the prosecutor’s conduct in making this demand by threat can be viewed as “misconduct” for any purpose under the Rules and Regulations of the State Bar of Georgia, in the circumstances of this appeal, his making of the threat of criminal prosecution if appellant’s wife/attorney resisted this seizure, while presumably knowing he could not lawfully do so, was misconduct in view of the most basic Fourth Amendment guarantee. See also Standard 56 of the Rules and Regulations of the State Bar of Georgia, Part IV. It was deliberate, “instinct with coercion” (Bumper, supra) and it did in fact coerce her to give up the evidence. The appropriate remedy for this misconduct (see Wilcox v. State, 250 Ga. 745 (301 SE2d 251)) was at the very least the suppression of the evidence. See United States v. Morrison, supra.
The State contends that the error if any, was harmless, even beyond a reasonable doubt, because the other legal evidence against Floyd was overwhelming. See Hamilton v. State, 239 Ga. 72, 76-77 (235 SE2d 515). In the first place, however, the State did not bear its burden to prove this illegal evidence was not used (see Schneckloth); therefore, we cannot say some of it is not part of the “overwhelming” evidence.
The threshold question is why, if the prosecution’s proper case was so overwhelming, it would seek to obtain evidence as it did in this case; and why, if as the majority says the State had so many other legitimate sources of evidence, such as warrants for bank records, it failed to get a warrant for this evidence or issue a subpoena duces tecum. We can only conclude the State found it fruitful and necessary to demand production of this evidence under threat of criminal prosecution, for the reason stated in the letter: to seize evidence “to be used in the prosecution,” and to lead to other, legal evidence. On principle, I cannot see how we can say this misconduct resulted in “harmless error,” for since the majority has said it was not even error, there looms ahead the certain prospect that in another case, a prosecution will deliberately, qualmlessly seek to obtain evidence in this *36fashion in hopes of ultimately obtaining enough good evidence to render any bad evidence “harmless,” and then, by keeping it in such a condition as to make it virtually impossible to say whether it was used, contend the defendant cannot prove harm. The Supreme Court has said this suppression is necessary to “[deter] lawless conduct by [law enforcement] officers ... or [to close] the doors of the . . . courts to any use of evidence unconstitutionally obtained. [Cit.]” Wong Sun, supra, p. 486.
Decided July 15, 1988 Rehearing denied July 26, 1988 Randall M. Clark, for appellant. W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.Besides, it is difficult to see how the prosecution can show the error to be harmless in the face of overwhelming evidence, when obviously, as a threshold proposition, it considered this evidence important and necessary enough to obtain in this fashion while (as it now claims) there was available so much other legal evidence.
Upon the strongest and soundest constitutional grounds, I respectfully dissent.
I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent.