dissenting.
The majority initially provides an accurate assessment of the factors necessary to a finding of a valid third-party consent search. The majority, though, remands this case to the trial court so that the state may establish the right of access and right of invitation on the part of the third party for the sole reason that the state failed to do so at the initial hearing. This action is unsupported by precedent and violates the double jeopardy clause of the state and federal constitutions.
The majority states, “We find that not all the necessary elements for giving consent were established at the suppression hearing.” Appellant certainly would not want to establish the elements for a valid consent at the initial hearing or upon remand. The fact that the failure to establish all the elements leads the majority to remand the case shows that the state, not appellant, has failed to carry the burden of persuasion. The state also, of course, bears the ultimate burden of proof in a suppression hearing. OCGA § 17-5-30.
At the suppression hearing in this case, the state had the opportunity to establish the third party’s right of access and right of invitation, “two crucial elements of the test of a valid consent.” The majority, upon finding that neither party has produced evidence as to either factor, remands the case. Where a party who has the burden of producing evidence fails to do so through his fault alone, absent procedural error, fundamental fairness dictates that he should not be given a second chance.
When that party is the state in a criminal case, double jeopardy becomes involved. The United States Supreme Court, in Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970), found the doctrine of collateral estoppel to be embodied in the double jeopardy clause of the Fifth Amendment. The court held, “[This] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443.
“The single rationally conceivable issue”1 in this bench trial was whether the evidence involved should be suppressed. This court has found the evidence insufficient to affirm the trial court’s denial of the motion to suppress.2 Neither the parties nor the court cites any proce*644dural infirmity in the motion hearing. As the issues involved are factors to be considered “in any third party consent search,” this case presents no new rules of law for the court to consider upon remand. An “issue of ultimate fact has been determined by a valid and final judgment,” and the majority errs in remanding the issue for relitigation.
Decided July 8, 1985 — Rehearing denied July 26, 1985. Crumbley & Crumbley, Wade M. Crumbley, for appellant. E. Byron Smith, District Attorney, for appellee.The cases cited as authority for the majority’s action all involve situations where the defendant in a case was denied the opportunity to present evidence, examine evidence, or have evidence examined under constitutionally mandated procedures.3 In this case no one has shown insufficient procedure, only insufficient evidence. This case exceeds the bounds of the precedent cited. For these reasons, I would reverse.
Id. at 445.
All of the “[factors supporting a conclusion that a decision is final . . . exist with respect to the granting [or denial] of the motion to suppress.” United States ex rel. Di Giangiemo v. Regan, 528 F2d 1262, 1265 (2nd Cir. 1975). These factors include a full hearing, a *644reasoned opinion supporting the court’s decision, and the availability of appeal or actual review on appeal. Id. See also Cook v. State, 141 Ga. App. 241 (233 SE2d 60) (1977).
In Pittman, supra, infirm procedure at a motion hearing, led to a remand. Baker, supra, involved faulty procedure, in that the trial court denied appellant a hearing at which he could have presented evidence on the issue of competence to stand trial. Carpenter, supra, also involved infirm procedure as the trial court refused to conduct an in-camera inspection pursuant to a Brady motion. None of these cases involved insufficient evidence.