dissenting. By everyone’s iva ..agreement, the blood sample taken from the appellant, James Kelly Haynes, for DNA testing was illegally seized. This is so because it was taken in connection with failure to pay child support, which was not a qualifying or targeted offense for drawing blood samples for DNA testing under Act 737 of 1997. See Ark. Code Ann. § 12-12-1103(a) (Supp. 1997). It is that illegally drawn blood sample that caused the “hit” in connection with the DNA taken from the ski mask on October 21, 2000. Haynes correctly argues that the second blood sample drawn from him in January 2002 should also be suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471 (1963).
Whether to suppress the 1997 and 2002 searches really turns on the question of whether Haynes’s DNA would have been inevitably discovered as a result of his release from prison on his residential burglary conviction in December 2001. See Ark. Code Ann. § 12-12-109(a) (Supp. 2001). State law required that taking a blood sample was a condition for release on a residential burglary at that time. Id. The United States Supreme Court has adopted inevitable discovery as an exception to the exclusionary rule for illegal police conduct. See Nix. v. Williams, 467 U.S. 431 (1984). The State has the burden of proving that the information would have been inevitably discovered by police officials. Id.
The majority writes that the State met its burden of proving that police officials inevitably would have discovered Haynes’s DNA because police officials are presumed to follow the law. In other words, the majority presumes prison officials took the blood sample because they were supposed to do so. However, there is no proof that they actually did do so.
The caselaw cited by the majority does not stand for the proposition that police officers performed a certain act. Rather, the caselaw cited deals with situations involving whether public officials acted properly or in good faith. See Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989) (presume sheriffs deputies properly performed duties though paid with private funds); Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973) (presume police officer did not arbitrarily discriminate against two individuals whom he arrested for a misdemeanor after they refused to help him); Arkansas Pollution Control Comm’n v. Coyne, 252 Ark. 792, 481 S.W.2d 322 (1972) (presume Pollution Control Commission acted lawfully and in good faith in denying permit for septic tanks).
In the instant case, the issue is whether law enforcement performed the act of drawing blood in 2001 at all, not whether they performed it properly. The burden was on the State to prove this; yet all the State has done is call on this court to speculate about whether the blood was drawn or not. Absent some proof to confirm that prison officials drew blood when Haynes was released in 2001, I would not presume this was done. Under the majority’s reasoning, we would presume law enforcement always performed acts they were supposed to perform, such as giving accused individuals their Miranda warnings, because the law requires them to do so. Surely, no court has gone that far, and I am not willing to do so in the instant case.
Because there is no proof that prison officials lawfully took a blood sample from Haynes, I would suppress the search. For that reason, I respectfully dissent.
Hannah, J., joins.