State v. Johnson

SCHWAB, C. J.,

specially concurring.

I concur in the opinion of Port, J., but feel it advisable to add a few comments.

Much has been said about court-made constitutional rules governing search and seizure resulting in suppression of strong evidence of guilt, thus allowing guilty people to go free. This case to me is a classic example of how constitutional requirements can be met without freeing the guilty if the state will but remember what its duties are in a prosecution. The rule which has been enunciated time after time by courts of this country is that when there is a motion to suppress evidence seized as the result of a warrantless search it is incumbent upon the state to produce prima facie evidence of probable cause to search coupled with exigent circumstances obviating the need for a warrant, the existence of some other exception to the general rule that a search is to be made only pursuant to warrant, or that the search was within the scope of consent given by the defendant, or some other person authorized to consent.

Here the state, faced with a motion to suppress, did not even call as a witness any person who had any dealings with the defendant prior to the search. Thus the trial court was required to suppress *58the fruits of this search in the face of a situation in which it seems likely that if the state had called the officer who allegedly obtained the consent, the trial court might have very properly reached a different result.