The record will not support a finding, and the state has not argued, that defendant failed to preserve the constitutional issue or that it was waived. It may be that the state recognizes that any act or failure to act which may be construed as a waiver of an absolute legal defense on retrial on the charge of murder first degree would be ineffective assistance of counsel, per se, where the court both orally and in writing sustained defendant's motion for judgment of acquittal on that offense. These points may or may not have merit. We do not reach them because they need not reappear on retrial. Our failure to address the points should not be construed as either an approval or a rejection on the merit of these points.
Defendant also raises a search and seizure question.
We conclude there is evidence to support a finding of the trial court that defendant was arrested on outstanding traffic warrants before the search and the seizure of evidence offered by the state. Moreover, defendant testified that the police officer's testimony that there was a search and seizure was untrue as a search and seizure never occurred. We find no error in denying a motion to suppress and would reject this claim of error because the search was made after an arrest, which was presumptively lawful. We reverse the conviction and sentence on the charge of murder first degree. The retrial on that charge was barred by federal constitutional double jeopardy provisions.