(dissenting).
I dissent because the majority applies certiorari as a vehicle to consider a claim that could not be considered as an application for discretionary review. In so doing, it encourages an end run on our long-established rules regarding review of preliminary rulings in criminal cases.
It is true this plaintiff was not under arrest, but this is all the more reason to deny review at this time. The district court’s ruling is so preliminary that many subsequent events could make the order moot. For example, he might not even be arrested. He might not be charged, and if charged, he might not be convicted. If convicted, he can appeal, and the issue could be considered at that time. For this reason, certiorari, which is discretionary on our part, should be denied.