dissenting.
The criminal prosecution out of which this appeal arose involves the arrest of appellee and seizure of 356 pounds of marijuana from the vehicle she was operating.
FACTS
On October 17, 1986, two Department of Public Safety (DPS) officers observed ap*576pellee and a second vehicle proceeding in tandem northbound on Interstate 19. As the officers began to follow the two vehicles, they observed the driver of the rear vehicle driving erratically. The officers stopped the rear vehicle, at which time the driver offered to open the trunk of his vehicle for them. The officers looked in the trunk, observed nothing unusual, then proceeded to pursue the lead vehicle. The officers concluded that the rear vehicle may have been a decoy utilized to divert their attention from the lead drug-laden vehicle, a method commonly used by drug smugglers. When the lead vehicle was stopped at milepost 30 on Interstate 19, officers learned that appellee was the driver and subsequently discovered 356 pounds of marijuana in the trunk.
Three days after appellee’s arrest, her attorney sent certified letters to DPS in Nogales and in Phoenix, requesting preservation of transmissions between the agents involved in the stop of the two vehicles. On March 25, 1987, counsel for appellee sent a subpoena to DPS directing that a DPS agent appear at his law office with transmission materials for a deposition. Counsel subsequently learned that the recorded transmissions were erased in December of 1986 pursuant to routine policy of DPS. The whereabouts of the two certified letters was never established, although a DPS custodian of records speculated that the respective letters were probably not left “laying around in the mailroom.”
TRIAL COURT RULING
A motion to dismiss was filed based upon the erasure of the recordings. Before a motion to suppress evidence based upon lack of probable cause was entertained, the trial court ordered that the matter be dismissed with prejudice because of the erasure. The trial court stated that common courtesy required that DPS respond to defense counsel’s letters and that instructions be furnished as to how to proceed.
ABSENCE OF ACTUAL PREJUDICE
Although courtesy may have required the Department of Public Safety to tender a response to defense counsel’s letter, failure to do so does not warrant dismissal. There is no question but that the tape recording was erased pursuant to DPS policy and not to deprive appellee of critical evidence.
Defendant’s argument that the recording would have shown facts contrary to both the police reports furnished to defense counsel and the testimony of the officers is merely “inventive conjecture.” State v. Nelson, 129 Ariz. 582, 586, 633 P.2d 391, 395 (1981). Actual prejudice must be shown before a sanction is imposed for the loss or destruction of evidence. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). It is a departure from precedent to establish a per se ruling that prejudice to the defense will be presumed in every case involving lost or destroyed evidence, regardless of the character and significance of that evidence.
The cases relied upon by appellee nearly all involve the failure of prosecutors to produce evidence or the failure of law enforcement officers to preserve evidence such as semen samples, breath samples, footprints, and recordings of drug transactions which by their nature might completely exculpate the defendant. See, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed. 2d 342 (1976); Scales v. City of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979); United States v. Bryant, 439 F.2d 642, 648 (D.C.Cir.1971); People v. Nation, 26 Cal.3d 169, 604 P.2d 1051, 161 Cal.Rptr. 299 (1980). As such, all are readily distinguishable from the instant case.
The concurring opinion observes that the recordings may have contained information important to the defense. That opinion mentions in a footnote:
Suppose the tapes revealed the following exchange: “Let’s stop the car. I have a hunch it’s carrying drugs.” “I don’t think we have probable cause.” “The hell with it. At least we’ll get the drugs off the street.”
However, even this shocking, purely hypothetical scenario would be of minimal sig*577nificance. Repeatedly, we have recognized that the trial court, not the law enforcement officer, makes the final determination as to the existence of probable cause. The trial court is not bound by a law enforcement officer’s mistaken conclusion that he or she lacks probable cause to search or arrest. State v. Turner, 142 Ariz. 138, 141, 688 P.2d 1030, 1033 (App.1984); State v. Vaughn, 12 Ariz.App. 442, 444, 471 P.2d 744, 746 (1970). On the record before us, no prejudice or even materiality of the recording has been shown. In the analogous decision of United States v. Spencer, 618 F.2d 605 (9th Cir.1980), the Ninth Circuit Court of Appeals denied the imposition of sanctions against the government despite the failure of an agent to preserve his rough notes, stating:
The same logic would dictate that all original tapes of conversations would also have to be maintained. The result from a policy standpoint would be the creation of an unwieldy national attic of scrap paper and magnetic tape which would not advance the cause of justice.
Id. at 607.
INADEQUATE REQUEST TO PRESERVE THE EVIDENCE
The sanction of dismissal is particularly inappropriate because no timely request for preservation of the recording was made to the prosecutor or the court. Before it was learned that the recording had been erased, the trial court was asked to impose sanctions against the state because the recording and a log sheet were not produced for defense counsel. Because these requests, including the two certified letters, had been directed to DPS and not the county attorney’s office, the trial court stated:
[T]here is one thing that bothers me. That is, that the request for these materials was not made directly to the State.
You did not request the State to produce it, and I am wondering how far the Court can go in terms of imposing sanctions when a request is made of an agency not directly under the control of the County Attorney’s Office.
Thereafter, appellee’s counsel learned that the recording was erased months earlier.
Although appellee’s counsel relies heavily upon State v. Boyd, 29 Wash.App. 584, 629 P.2d 930 (1981), that case is readily distinguishable from the matter before us. In Boyd, the prosecutor was requested to preserve the recording. Here, no request was ever made to the prosecutor nor was any motion filed with the court requesting preservation of this evidence.
For the above-stated reasons, I believe that dismissal of this action was inappropriate and constitutes an abuse of discretion by the trial court. State v. Lukezic, 143 Ariz. 60, 691 P.2d 1088 (1984).