¶1dissenting.
¶2I must disagree with the result reached by the majority.
¶3The crucial issue to be decided in this case is whether the testimony of a defendant given in a hearing on a motion to suppress evidence, where the motion to suppress said evidence is sustained, can later be used against said defendant for purposes of impeachment. I feel the case of Safarik v. U. S., 62 F2d 892 (8th Cir 1933) is dispositive of the case at bar. In that case, the statements made by the defendant in a written motion to suppress- were ruled inadmissible as admissions against interest. Surely, admissions made by a defendant during the course of a hearing on a motion to suppress are more harmful to a defendant’s cause than admissions contained in a written motion. In the case at bar, defendant as in Safarik, supra, was forced to choose between the Fourth and Fifth Amendments. In order to avail himself of protection under the Fourth Amendment, defendant would have to waive his protection under the Fifth Amendment.
¶4The majority seems to base the result reached on the theory that defendant was not obligated to testify during the hearing on the motion to suppress or take the stand during the trial. It is true defendant could have waived taking the stand in those instances. A defendant, however, should not be forced to choose between taking the stand during a hearing on a motion to suppress and waiving his right to testify during the course of the trial, in order to prevent his admissions from being used against him for the purpose of impeachment.
¶5Heller v. U. S., 57 F2d 627, 629 (7th Cir 1932) is not applicable to the case at bar in that the principle enunciated in that case, that the testimony of a defendant during a hearing on a motion to suppress, is admissible for purposes of impeachment, was clearly obiter dictum.
¶6It is my belief that the court committed reversible error by allowing the People to introduce evidence in violation of defendant’s constitutional rights. I feel, however, that this point raises a substantial constitutional question and should not be decided by this tribunal. It is my position, therefore, that this case be transferred to the Supreme Court for a determination of the constitutional issue involved.