¶1(dissenting).
¶2The majority has concluded under the evidence presented on the pretrial hearing of a motion to suppress physical evidence that the arrest was illegal (absent warrant or probable cause), and that therefore the seizure of evidence thrown down or abandoned after such an illegal arrest was not constitutional. It necessarily follows that the trial court should have then sustained the motion to suppress.
¶3However, the majority has examined evidence admitted for other purposes at the trial before the jury to supply the requisite probable cause for arrest which was missing from the hearing on the motion. The majority relies upon State v. Andrus, 250 La. 765, 199 So.2d 867, which was decided before the applicability of Code of Criminal Procedure Article 703. State v. Andrus, supra; State v. Davidson, 248 La. 161, 177 So.2d 273, and State v. Rasheed, 248 La. 309, 178 So.2d 261, were our efforts to frame jurisprudential rules for pretrial inquiry into the constitutionality of evidence procured as a result of search and seizure, so as to comply with Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961), and the succeeding federal decisions which applied federal rules to state searches and seizures. I believe State v. Andrus is not controlling here, and that we should examine the merits of this case in the light of Code of Criminal Procedure Article 703, A which reads;
“A. A defendant aggrieved by an unconstitutional search or seizure may move to suppress for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books, papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this paragraph must be filed no later than three judicial days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.”
¶4I am of the opinion that the review of a bill of exception reserved to an adverse ruling on the motion to suppress should be limited to the evidence adduced at that hearing. The ruling there made should be final except where newly discovered facts and circumstances warrant a hearing under a new motion. The constitutionality of a search and seizure is a question for the judge, not for the jury, and therefore any evidence offered at the trial of the case supporting or attacking the constitutionality of a search or seizure should be excluded unless admissible for other purposes. Since there is a mandatory requirement under Article 703 that the defendant raise this issue by motion to suppress, heard either in pretrial proceedings or, if *1127during the trial, heard out of the presence of the jury, the State is afforded good ground for objection to inquiry upon the actual trial which attempts to establish the unconstitutionality of a search and seizure. Both the State and the defendant have good objections to any testimony concerning the constitutionality of the search and seizure during trial before the jury unless such testimony is relevant and admissible for other purposes.
¶5The federal courts have said that the defendant’s failure to raise this issue by motion to suppress is a waiver of the right to raise the unconstitutionality, and that thereafter the illegality of such evidence cannot be tested by an objection to admissibility on the trial before the jury. Small v. United States, 396 F.2d 764 (C.C.A. 5 1968); United States v. Maloney, 402 F.2d 448 (C.C.A. 1 1968), cert. denied 394 U.S. 947, 89 S.Ct. 1283, 22 L.Ed.2d 481; Mesmer v. United States, 405 F.2d 316 (C.C.A. 10 1969); United States v. Bennett, 409 F.2d 888 (C.C.A. 2 1969), cert. denied 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101. State v. Rasheed and State v. Davidson laid down the state rule that a defendant could test the legality of search and seizure only under a motion to suppress, and that failure to raise the issue in this manner operated as a waiver of any claimed violation of his constitutional rights. These cases point out, as did the federal cases interpreting Federal Rule 41(e), that the reasons for the rule are to eliminate from the trial all disputes over police conduct unrelated to the guilt or innocence of the accused, to avoid unwarranted delay of the trial and confusion of the jury, to spare the State as well as the accused the expense of a useless trial, to avoid the necessity of declaring a mistrial based upon evidence and objection before the jury which results in repetitive litigation, and to afford the State and the accused advance knowledge of the rules of evidence which must be followed during the course of the trial. Prior to our requirement for a motion to suppress, the illegal evidence was often laid before the jury before objection and ruling could be made thereon, and the prejudicial effect was such as would require a declaration of mistrial.
¶6The majority holding here would return us to a rule of law which would obviate all the underlying reasons for the present procedural tool and eventually expunge the motion to suppress from the Code. It would open the gate for prejudicial error to be committed by the judge in the presence of the jury, it could encourage concealment and even the manufacturing of evidence, and it would force the defendant to be prepared to retry before the jury the question which he has previously presented according to law for a final determination to the judge.
¶7If I were writing for the majority, conceivably I could try to “sunburst” the rule *1129I propose here, since it is obvious that here it was the trial judge’s inopportune interference with the pretrial procedure by cutting off the presentation of the necessary evidence which actually caused the defect on the hearing of this motion. However, because the majority has laid down a broad rule applicable to this and all cases in the future, I can only dissent under the views I hold.
¶8I cannot believe that a requirement that a judgment on the motion to suppress evidence should be final as to the State is harsh or inequitable to the State. The State should have relief from an adverse ruling on the motion through review by this court in a case where the evidence suppressed is the total or the bulk of the evidence required to establish the criminal conduct in that case. Moreover, the trial court would be required to carry out the express provision in Federal Rule 41(e) (our source) which our redactors omitted because they thought it implicit, therefore unnecessary — that is, to hear all the evidence necessary to decide the motion to suppress upon its trial. See Comment (c) under C.Cr.P. Art. 703.
¶9I am persuaded that Code of Criminal Procedure Article 703, A intended, and I believe properly, that the evidence heard rn the motion or motions to suppress out of the presence of the jury should be determinative of the issue of the constitutionality of the search and seizure. Just as the defendant should be entitled to file a new motion based upon newly discovered grounds, I think the State should upon proper showing be allowed either to reopen before trial or to apply to this court for review. I am primarily concerned that the constitutionality of the search and seizure be determined out of the presence of the jury and by the procedural device of a hearing on a motion to suppress. Since the rule is primarily designed to guard against tainting a whole proceeding with illegal and prejudicial evidence, the admissibility of which can be determined preliminarily — that issue being totally judge-oriented — , I fear that the consequences of the majority holding will be entrapment of the court to commit error, further delays, repeated litigation, unnecessary cost, and prolonged trials.
¶10I respectfully dissent.