concurring and dissenting:
I agree that the prosecution had the burden of showing probable cause for its actions at The Ranch Inn, that it did not do so, and that we must require the district court to determine whether it can. However, neither I nor appellant’s counsel agree with the majority’s conclusion that this court has “no choice but to set aside his conviction and remand for a new trial.”
As defense counsel conceded during oral argument, a new trial may not be necessary. It would be quite appropriate for this court to require, on remand, that the district court proceed first to hear appellant’s motion to suppress. If the district court *121found the police acted properly, and therefore denied appellant’s motion, no new trial would be required unless we reversed the denial of appellant’s motion to suppress on appeal.
I suggest that this course of action, which might save substantial cost and court time, should be adopted here.