dissenting:
I respectfully dissent. I agree with the majority that the search by the police of the individual cigarettes contained in the package concealed in petitioner’s lunch bag would have been a valid search had the State, with competent evidence, met its burden of proving that the arrest was lawful. Nonetheless, I would reverse the judgment of the Circuit Court denying the motion to suppress on the grounds that the State, in failing to produce the arrest warrant at the suppression hearing, did not establish that the search of petitioner was pursuant to a lawful arrest.
By failing to produce the arrest warrant for the trial court’s review once petitioner challenged the validity of the search, the State failed to make the required showing that the search was, in fact, incident to a valid arrest. Therefore, I would reverse the judgment of the Court of Special Appeals affirming the trial court’s denial of petitioner’s motion to suppress and reverse the judgment of conviction. I would hold that the evidence seized incident to petitioner’s arrest improperly was admitted in evidence at her trial over her objection.
The Fourth Amendment protects individuals from unreasonable searches and seizures. See United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). A warrant-less search or seizure is presumptively unreasonable, unless the State can show that it falls within one of a few carefully delineated exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Bell, 334 Md. 178, 191, 638 A.2d 107 (1994). The State bears the burden of proving the applicability of an exception to the warrant requirement. See Bell, 334 Md. at 191, 638 A.2d at 114. This Court’s review of the denial of a motion to suppress evidence in violation of the Fourth Amendment is limited to the record of the suppression hearing. See Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519, 524 (2000); Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999).
The resolution of the search and seizure issue presented by this case is provided fundamentally by an application of the *469Maryland Rules of Evidence, and specifically by the requirements of the Best Evidence Rule, codified in Maryland Rules 5-1001 through 5-1008. The Best Evidence Rule requires, as an evidentiary matter, that an original writing must be produced to prove its existence and contents, except for a few narrow exceptions that do not apply to the present case. See Maryland Rule 5-1002;1 see also Maryland Rule 5-1004 (providing that the contents of a document may be proven extrinsically if the original is lost or destroyed, not reasonably obtainable, or is in the possession of the opponent). We have long recognized that the Best Evidence Rule is applicable in criminal cases in Maryland. See Forrester v. State, 224 Md. 337, 167 A.2d 878 (1961).
This case is strikingly similar to the case of Duggins v. State, 7 Md.App. 486, 256 A.2d 354 (1969), decided by the Court of Special Appeals more than thirty years ago. In that case, like the one sub judice, the appellant challenged the seizure of incriminating evidence from his person justified by the State as a search incident to a lawful arrest. The appellant challenged the legality of the warrant and demanded its production at his suppression hearing so that the court could assess the constitutional validity of his arrest. See id. at 487-88, 256 A.2d at 354-55. The State declined to produce the warrant, and the trial court denied the appellant’s motion to suppress, finding that the testimony of the arresting agents that they had a valid warrant in their possession at the time of the arrest was sufficient evidence to demonstrate the arrest’s validity. See id. Chief Judge Robert C. Murphy, later Chief Judge of this Court, writing for the Court of Special Appeals, held:
“Under the facts of this case, the constitutional validity of the seizure of the incriminating evidence from appellant’s person manifestly depended upon the constitutional validity *470of his arrest. And where, as here, the constitutional validity of that arrest was properly challenged by the appellant, evidence to show the basis upon which the arresting officers acted in making the arrest must affirmatively be shown by the State if it is to carry its burden of proving the legality of the arrest. The State relied solely upon the warrant to justify the arrest, and since appellant challenged its legality and called for its production, we think the State was required to do more than simply make a testimonial showing that the warrant actually existed at the time of the arrest.”
Id. at 488, 256 A.2d at 355 (internal citations omitted). The court also relied on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), when it observed that:
“if the State relied upon a search warrant to justify a search, but failed to produce it in evidence, ‘there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probably cause.’ And it has been held that under the so-called ‘best evidence rule,’ the contents and existence of a search warrant may, where challenged, be proved only by the introduction of the warrant itself, unless it is shown that the warrant is unavailable for some reason other than the fault of the prosecution.”
Duggins, 7 Md.App. at 488, 256 A.2d at 356 (citations omitted).
In Duggins, the Court quoted extensively from People v. Wohlleben, 261 Cal.App.2d 461, 67 Cal.Rptr. 826 (1968), a case applying the best evidence rule to an arrest warrant. The defendant had been arrested following a traffic stop based on outstanding warrants. At trial, the State did not produce the warrants and instead attempted to prove their existence and contents by parole evidence. The court overruled defense counsel’s objection, and the intermediate appellate court reversed, applying the best evidence rule. In reversing defendant’s conviction for possession of marijuana found in a search incident to this arrest, the court applied the best evidence rule and stated:
*471“Unless a foundation is laid for the use of other evidence, no evidence of the contents of a writing other than the writing itself is admissible.... The contents of the warrants under which defendant was arrested were necessarily in issue since it was incumbent upon the prosecution to prove that defendant was the person named in the warrants. Defendant having objected to the competency of the prosecution’s evidence of the warrants, the court erred in not requiring that the original warrants be produced or that a proper foundation be established for the use of the secondary evidence. A rule which requires the production of the original warrant does not place a burden on the People because, as the Supreme Court observed in People v. Burke [61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, 68 (1964) ], in connection with search warrants, ‘Ordinarily proof of the existence of a search warrant is a simple matter, and in the face of an objection that the evidence has been illegally obtained, it seems obvious that the prosecution will produce a warrant if one exists.’ ”
Id. at 830.
The Duggins court also cited Cain v. State, 113 Ga.App. 477, 148 S.E.2d 508 (1966) with approval. In that case, the defendant objected to oral testimony about the contents of a search warrant on the ground that the evidence seized pursuant to the warrant was not admissible until the State first established a valid search warrant. The trial court overruled defense counsel’s argument, and the appellate court reversed, stating that defense counsel had stated “an objection that the existence and validity of the search warrant had not been shown by the best evidence, and that until such showing evidence of the result of the search was inadmissible.” Id. at 511. The court held that the trial court erred in permitting parol testimony of the contents of the warrant.
The same analysis is equally applicable to the case at bar. Prior to trial, petitioner filed a pretrial motion, pursuant to Maryland Rule 4-252, which included a motion to suppress the evidence taken from petitioner by police “as the result of an illegal search and seizure.” During the suppression hearing, *472petitioner’s counsel opposed the search of petitioner’s belongings after she was taken into custody based on the allegation that she was wanted through Montgomery County.
At the hearing, petitioner’s counsel objected to the State’s attempt to establish the existence and validity of the arrest warrant without producing the warrant itself. Defense counsel made a timely objection during the suppression hearing as to the hearsay evidence related to the contents of the warrant:
“[DEFENSE COUNSEL]: Your Honor, the State has an additional problem, the case is Duggins v. State, it’s 7 Md.App. 486 [256 A.2d 354], it’s a 1969 case. And the blurb is where defendant’s counsel challenged the legality of a federal arrest warrant on the theory that ... it was possible for the warrant was not properly completed and, therefore, legally defective, the State could not overcome the challenge by producing only testimony of those who procured warrants to the effect that it did exist and it was a lawful a warrant. Now assuming the State is going to introduce a warrant somewhere in the evidence they produce, or testimony they produce before this Court, they need the warrant here in court. Hearsay testimony, what people say about the warrant is not sufficient under Maryland law. It’s, it’s based in the best evidence rule, but it goes further than that actually.” (emphasis added)
When petitioner challenged the validity of the search incident to her arrest at the pretrial hearing on her motion to suppress, the State’s burden to prove the legality of her arrest and the resulting search was triggered. The State failed to produce an original or even a copy of the arrest warrant at the hearing on petitioner’s motion to suppress. Nor did the State make any showing that the original warrant was unavailable for some reason other than the fault of the State. Clearly, the original warrant is the best evidence of its terms and contents. See Brown v. State, 227 Miss. 823, 87 So.2d 84, 85 (1956) (“[T]he warrant itself was the best evidence of its existence and terms, and ... the original should be offered in evidence, or proof be made that it was lost, or could not be produced, ... to justify admission of secondary proof....”). Nonethe*473less, the majority gives no explanation for how it is possible for a trial court to determine, as a matter of law, that a contested search was incident to a validly executed arrest warrant without seeing the warrant itself. As this Court opined in Howell:
“In passing upon issues which are of constitutional dimension, a court can neither fill gaps in the record with conjecture nor substitute surmise for positive proof. Consequently, care should be taken by the State in presenting its case to insure that there will be sufficient evidence, if any exists, placed in the record to justify the execution of a warrantless search incident to a lawful arrest.”
Howell, 271 Md. at 386, 318 A.2d at 193.
The mistake that the majority makes in this case is in conflating the discovery issue of whether a copy of the arrest warrant was provided to petitioner prior to trial with the evidentiary issue of whether the original warrant was produced and entered in evidence at the pretrial hearing on petitioner’s motion to suppress. In doing so, the majority obliquely concludes that “[t]he lawfulness of the arrest is not vitiated by the failure of the State to reproduce the arrest warrant at the suppression hearing when the petitioner had a copy of the warrant and did not sufficiently challenge the legality of the arrest.” Maj. op. at 467. This case is not about pretrial discovery. Therefore, it is irrelevant whether a copy of the warrant was given to the defendant at the time of the arrest or to her counsel during discovery.
The majority fails to address the real issues presented— namely, the manner in which the State can meet its burden to prove that an arrest is valid when it forms the basis for a contested search incident to arrest and whether the State sufficiently proved that petitioner’s arrest in this case was lawful.2 Nor does the majority explain how petitioner’s al*474leged possession of a copy of the warrant resolves the failure of the State to meet its burden or how petitioner’s challenge to the legality of her arrest was “insufficient” given her motion to suppress, her attorney’s objections at the suppression hearing, and the allocation of the burden of persuasion with respect to the constitutional issue.
Accordingly, I respectfully dissent. Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join in this dissent.
. Maryland Rule 5-1002 provides:
“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.”
. As the Court of Special Appeals explained in Duggins v. State, 7 Md.App. 486, 490 n. 2, 256 A.2d 354, 356 n. 2 (1969): "We note that *474the warrant is in fact available to the prosecutor since the Attorney General has appended it to his brief on appeal. For obvious reasons, however, the time to produce the warrant was at the trial when the issue of the legality of the arrest was before the court for resolution.”