(dissenting). On July 20, 1967, a jury convicted defendant Curtis Saul Clark of carrying a concealed weapon.1 Following sentencing* to a prison term of four to five years, defendant appeals as of right.
Defendant’s first claim of error concerns the trial court’s refusal to exclude the weapon from evidence *444as the product of an unreasonable police search and seizure. Before commencement of trial, the court, without an evidentiary hearing, denied defendant’s timely motion to suppress stating, inter alia, that “in any event, the court would feel bound by the provisions of the new Michigan Constitution which directs- the receipt in evidence of weapons found on a defendant.” The weapon was admitted into evidence and in its charge to the jury the court quoted art 1, § 11 of the Constitution of 1963 and stated that this provision “permits officers having attained a weapon from a prisoner, to introduce it in evidence, regardless of whether or not the seizure was proper.”
We have recently held that art 1, § 11 of the Constitution of 1963 is in conflict with Ams 4 and 14 of the United States Constitution as interpreted by Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933). People v. Andrews (1970), 21 Mich App 731. Mapp was decided on June 19, 1961. The arrest in the instant case occurred on February 20, 1967 with trial commencing on July 19, 1967. Mapp, therefore, controls and requires exclusion of all evidence, regardless of its nature, seized as a result of an unreasonable search and seizure. Linkletter v. Walker (1965), 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601).
This case should be remanded for a full evidentiary hearing on the question of the reasonableness of the search and seizure of the weapon. Following the evidentiary hearing, the trial court should make a redetermination of its prior ruling on defendant’s motion to suppress in the light of this opinion, the record of the hearing, and Mapp v. Ohio.
In the event the search is found to be reasonable, the conviction should stand; if found to be unreasonable in the constitutional sense, the evi*445dence should be suppressed and the defendant should be granted a new trial.
1 cannot agree with the position of the majority that we can decide the issue of reasonableness of the search and seizure on the record before us. The defendant should have the opportunity to attack the search and seizure in accord with his motion timely made. Defendant is entitled to an evidentiary hearing where he may present all material and relevant evidence available to him on this issue without surrendering such other constitutional rights as the right not to take the stand at the trial in chief.2 People v. Wiejecha (1968), 14 Mich App 486. See, also, Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247). Compare People v. Smith (1969), 19 Mich App 359, 367.
Because of the trial court’s blanket ruling on the admissibility of the contested evidence, the defendant was prevented from making an effective attack, *446since to do so would require him to pursue a course of action specifically precluded by the ruling of the trial court. On this record we have no way of knowing that all the evidence available to the defendant was presented. See People v. Walker (On Rehearing, 1965), 374 Mich 331.
I would remand this cause to the trial court for actions not inconsistent with this opinion.
MCLA § 750.227 (Stat Ann 1962 Rev § 28.424),
Compare People v. Cope (1969), 18 Mich App 14, where the defendant also argued that he was entitled to a full evidentiary hearing on his pretrial motion to suppress certain evidence. This Court disagreed at 17:
“Defendant’s objection is that he was not allowed to testify in his own behalf. It is clear that defendant had a complete right of cross-examination of arresting officer Evans. The only thing that defendant could have possibly said was that he did not give the police permission to search. One may waive the issuance of a search warrant and by consent permit the search of his premises. People v. Weaver (1928), 241 Mich 616, and this is clearly what defendant elected to do.”
The Supreme Court granted leave to appeal and reversed, sita sponte, by order at 383 Mich 757:
“The Court on its own motion orders the decision of the Court of Appeals reversed with remand by that Court to the Recorder’s Court for the city of Detroit. The Recorder’s Court will hold a complete evidentiary hearing on the admissibility of the gun. Upon such a hearing, if the gun is found to be inadmissible, the defendant would be entitled to a new trial. If the gun is properly found to be admissible, his conviction shall be deemed affirmed. This order entered December 31, 1969 pursuant to GCR 1963, 853.2(4).”
In the instant case defendant was not offered a full evidentiary hearing on his motion to suppress and did not take the witness stand at the trial in chief, and thus never had the opportunity to present his story as to the circumstances surrounding his arrest.