dissent">Jim Hannah, Justice,

dissenting. I respectfully dissent because I believe that the State failed to meet its burden of proof that the DNA match would eventually have been lawfully discovered. The “inevitable discovery rule” provides that evidence otherwise subject to suppression can be admissible if the State, proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means. Colbert v. State, 340 Ark. 657, 13 S.W.3d 162 (2000). The application of the rule to the present -case means that, if the State showed, by a preponderance of the evidence, that the DNA match would eventually have been lawfully discovered, then the trial court properly admitted the results of the illegally-obtained 1997 DNA match.

At the suppression hearing, the State introduced proof that Haynes had been convicted of residential burglary on August 23, 2000, and that he was sentenced to forty-eight months in prison. The only other evidence the State offered at the suppression hearing to support its argument that the DNA match would eventually have been lawfully discovered is the following statement by the deputy prosecutor:

... [W]e have inevitable discovery which I would ask the Court to take judicial notice of the Court’s record noting that Mr. Haynes was convicted on August 23rd of the year 2000 of Residential Burglary, which is a targeted offense, and a D.N.A. sample would have been drawn based upon that.

The majority opines that the State need not offer any further proof since a presumption exists that public officials will follow the law in performance of their duties. Further, the majority states: “There is no evidence to show that the State failed to enforce Act 737, as amended. It was only shown that the State took Haynes’s sample for a non-target offense in 1997.”

The majority has improperly shifted the burden from the State to Haynes. It is the State’s burden, not Haynes’s burden, to prove by a preponderance of the evidence that the illegally-obtained DNA match would eventually have been legally discovered. The State did not meet its burden by requesting that the trial court take judicial notice that an Act was passed by the General Assembly.

The State did not present evidence that a DNA sample had been drawn from Haynes prior to his release from the Arkansas Department of Corrections in December 2001. Instead, the State presented testimony from Kermit Channell explaining the State’s DNA testing procedures in 1997. The majority states that “there was testimony by Kermit Channell that, even in 1997, blood samples had been taken from all prisoners.” (Emphasis added.) Channell did not testify about the State’s DNA testing procedures in years subsequent to 1997. The majority fails to explain how Channell’s testimony concerning the State’s DNA testing procedures in 1997 offers proof that the State complied with Act 737, as, amended, in 2001.

In sum, the State failed to meet its burden of proving that the 1997 DNA sample was admissible in light of the “inevitable discovery rule.” As such, Lbelieve the trial court erred in denying Haynes’s motion to suppress. I would reverse and remand.

Brown, J., joins this dissent.

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