dissenting in part and concurring in part:
I concur in part II of the opinion of the court, which holds that defendant’s testimony at the bail hearing is not admissible as part of the State’s case, but I most respectfully dissent from part I, which holds that his testimony at the probable cause hearing is admissible at trial.
Our probable cause hearing is not essential to a prosecution, but its purpose is simply to determine if there is probable cause to detain the subject pending action by the grand jury. State v. Chase, 109 N.H. 296, 249 A.2d 677 (1969); Smith v. O’Brien, 109 N.H. 317, 251 A.2d 323 (1969); State v. St. Arnault, 114 N.H. 216, 317 A.2d 789 (1974).
This is exactly the kind of hearing which was held to be required to meet fourth amendment requirements in Gerstein v. Pugh, 420 U.S. 103 (1975), where it was said: “Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships .... [T]he detached judgment of a neutral *444magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.” Id. at 114.
The sole question at the probable cause hearing was whether there was probable cause to believe the defendant committed the crime with which he was charged. “If there was, the suspect would be committed to jail or bailed pending trial. If not he would be discharged from custody.” Gerstein v. Pugh, supra at 115.
In the case before us the defendant was faced with the problem whether to give up what he, with advice of counsel, believed to be his valid fourth amendment claim not to be deprived of his liberty pending action by the grand jury or “in legal effect, to waive his Fifth Amendment privilege against self-incrimination”. Simmons v. United States, 390 U.S. 377, 394 (1968).
Thus, the same “undeniable tension” existed here as was present in Simmons where it was said, “[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt....” Simmons v. United States, supra at 394.
There can be no difference in principle in testifying to assert a fourth amendment right to suppress evidence and to assert a fourth amendment right not to be detained without probable cause.
Thus, in my opinion, there is even more reason to exclude the testimony at the probable cause hearing than at the bail hearing. If the defendant could establish a lack of probable cause, he would not be required to post bail.