¶ 48. (concurring). I agree with the majority that the decision of the court of appeals should be affirmed. I also agree with the test adopted by the majority. I write separately, however, because I disagree with the application of the test to the facts of this case.
¶ 49. Under Nelson v. State, 54 Wis. 2d 489, 496-98, 195 N.W.2d 629 (1972), a defendant must "allege[ ] facts which, if true, would entitle the defendant to relief in order to receive an evidentiary hearing. If the defendant makes only conclusory allegations or does not allege sufficient facts to raise a question of fact, the defendant is not entitled to such a hearing. This post-conviction test places a considerable *23burden on a defendant. Thus the majority correctly tempers the post-conviction Nelson test by adopting the rationale of State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996):
[AJlthough a defendant may be unable to allege sufficient specific facts to warrant relief, a trial court must provide the defendant the opportunity to develop the factual record where the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel's legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant's motion may prevail.. . .[H]owever, a defendant is not entitled to an evidentiary hearing simply to search for something based on nothing but hope or pure speculation.
Thus, in determining whether to grant an evi-dentiary hearing, trial courts must, on a case-by-case basis, carefully consider the record, the motion, counsels' arguments and/or offers of proof, and the law. Where the record establishes no factual scenario or legal theory on which the defendant may prevail, and/or where the defendant holds only hope but articulates no factually-based good faith belief that any impropriety will be exposed through an evidentiary hearing, the evidentiary hearing is not required. Id. at 533-35 (emphasis in original).
¶ 50. Velez alleged that the police department violated his due process rights by intentionally waiting until he had reached his eighteenth birthday before seriously attempting to arrest and charge him. To support his allegation, Velez included an affidavit detailing his trial counsel's attempts to obtain information about the efforts of the police department to apprehend him.
*24¶ 51. The affidavit described how Velez's attorney obtained information from a detective in the Milwaukee County Sheriff s Department and an officer in the Milwaukee Police Department. Based on those discussions, the attorney learned that the police had possibly failed to enter the warrant for Velez's arrest into various databases to aid in his apprehension. Additionally, the affidavit described how the police department either rebuffed or ignored his attorney's subsequent attempts for clarification on this matter. Finally, the affidavit described how his attorney's perusal of his juvenile records discovered documents implying that a juvenile warrant had never been issued or entered into the computer system.
¶ 52. Standing alone, these assertions would not have definitively demonstrated that the police department deliberately delayed its efforts to apprehend Velez until he became an adult. That is to say, the Nelson test would not be satisfied by this affidavit. However, Velez did more than assert conclusory allegations. Rather, he articulated a specific factual basis that supported his legal theory.
¶ 53. Velez's affidavit documented both suspicious police activity prior to his arrest and an apparent attempt by the police department to frustrate his attempts at uncovering that suspicious activity. In light of this "factually-based good faith belief' that something improper had occurred, I cannot conclude that Velez sought a hearing "based on nothing but hope or pure speculation." Garner, 207 Wis. 2d at 534-35. The circuit court erred in not granting Velez an eviden-tiary hearing.
¶ 54. If my disagreement with the majority opinion was merely a difference of whether the affidavit in this case was sufficient, I would not write separately. *25But the opinion of the majority sets the contours for future cases and defines how the test that it adopts is to be applied. In concluding that the factual allegations are insufficient to warrant an evidentiary hearing the majority places an almost insurmountable burden on the defendant in this pretrial motion.
¶ 55. The majority acknowledges the "inherent difficulties a defendant may have in developing the facts necessary to support a pretrial motion" (majority op. at 13), yet affords little recourse. This is especially troublesome where, as here, the evidence necessary to demonstrate manipulation of the system in order to avoid juvenile court jurisdiction will most likely be exclusively in the control of the State. There will be few "smoking guns" alleged as a factual basis for an eviden-tiary hearing. Instead, the defendant will usually be left with alleging specific facts which constitute circumstantial evidence and arguing the reasonable inferences from that evidence.
¶ 56. Nevertheless, any error on the part of the circuit court does not warrant a new trial in this case. At the time Velez sought the evidentiary hearing, the actions of the police department reasonably permitted the inference that it had deliberately attempted to delay Velez's arrest until his eighteenth birthday. However, documents produced by the police department a month after the court erroneously denied Velez's motion for an evidentiary hearing make clear that the police did not engage in any misconduct. Specifically, the police department produced a report, complete with copies of the actual documents in question, that detailed the thorough and proper procedures it followed in attempting to apprehend Velez while still a juvenile. These documents resolved the very issue *26that Velez argues needed to be resolved by an eviden-tiary hearing.
¶ 57. While I am concerned with the police department's delay in offering an adequate explanation, the fact remains that this issue is now conclusively answered. Accordingly, I concur in the mandate of the court affirming the court of appeals.
¶ 58. I am authorized to state that Chief Justice Shirley S. Abrahamson joins this concurring opinion.