BLOG BULLETS:

• While case law says a defendant is entitled to an evidentiary hearing on a motion to suppress if he makes a sufficiently definite and detailed offer of proof, the Ninth Circuit has upheld local rules requiring the offer of proof be in a declaration by a witness with personal knowledge.
• Such rules are problematic for several reasons, including that (a) they require disclosure of defense evidence before government evidence even when the government has the burden of proof; (b) they preclude defense reliance solely on insufficiency of the government’s evidence; and (c) they prevent use of witnesses who won’t voluntarily sign a declaration for the defense.
• Still there are limits, including (a) the requirement that there actually be such a local rule; (b) a case recognizing that Fifth Amendment voluntariness motions always require a hearing; and (c) cases recognizing a declaration can’t be required where the defendant couldn’t be expected to know the facts.
• There may also be an argument that all a defendant has to provide a declaration about are the issues on which he has the burden of proof, such as standing and the fact that a warrantless search or seizure took place.

 

NOW THE BLOG:

Numerous Ninth Circuit cases state that a defendant is entitled to an evidentiary hearing on a motion to suppress when he has “made an offer of proof ‘sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the [subject of the motion] are in question.’” United States v. Batiste, 868 F.2d 1089, 1091 (9th Cir. 1989) (quoting United States v. DeCesare, 765 F.2d 890, 896 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985) and United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974)).  Left unaddressed by such general statements are what the offer of proof needs to address and how it needs to be made.

A number of courts have local rules requiring a defendant who files a motion to suppress evidence to support those motions with declarations or affidavits signed by a witness with personal knowledge of the facts.  See, e.g., C.D. Cal. Crim. R. 12-1.1; N.D. Cal. Crim. R. 47-2(b); S.D. Cal. Crim. R. 47.1(g).  Such rules are problematic for several reasons.  First, such local rules require the defense to disclose its evidence prior to the government, even on issues – such as the justification for a warrantless search – on which the government has the burden of proof.  Second, and related to this first problem, such local rules require disclosure of the defense evidence before cross-examination of the government’s witnesses, which can allow those witnesses to adjust their testimony.  Third, such local rules preclude the option of defense reliance solely on insufficiency of the government’s proof which might be established by cross-examination.  Fourth, such local rules limit the witnesses the defense can use, since a witness can’t be compelled to sign a declaration or affidavit the way a witness can be compelled to testify.  In many instances, the only declaration or affidavit the defense can provide is a declaration or affidavit from the defendant himself, which has the side effect of providing the government with pretrial discovery of at least part of the defendant’s version of events.  Fifth and finally, there may be some instances where the defendant wasn’t present – as, for example, the search of a residence when no one was home – and the only witnesses who have personal knowledge are adverse witnesses who won’t provide a declaration or affidavit.

Much to my chagrin – as someone who’s litigated and argued about the issue – the Ninth Circuit has upheld such local rules despite these problems.  See United States v. Wardlow, 951 F.2d 1115 (9th Cir. 1991).  Still, there are several limits I thought I’d share in this post – some clearly established and some not so clearly established but arguable.

First, courts can require declarations or affidavits in support of a motion only when there’s a local rule or other notice that they’re required.  This was first recognized by the Ninth Circuit long ago in Cohen v. United States, 378 F.2d 751 (9th Cir. 1967), in which the court said:

[I]t has been held that the court has inherent power to required [sic] that supporting affidavits be filed.  But at least in the absence of a court order or local rule such affidavits are not necessary, and if filed by either the movant or the government they are no substitute for competent proof when factual issues are properly raised.  The question is whether the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.  If the allegations are sufficient, and factual issues are raised, a hearing is required.

Id. at 761 (footnotes omitted).  See also the more recent opinion in United States v. Terry, 11 F.3d 110 (9th Cir. 1993), in which the court held a district court in the Southern District of California erred in applying a general order requiring declarations when the defendant and his attorney hadn’t been given notice of the general order.  See id. at 113.  (Unfortunately for our friends in the Southern District of California, this general order has since been adopted as a local rule for all courts in the district, so they no longer have this argument.)

Second, the Ninth Circuit has stated that an evidentiary hearing can’t be denied on motions to suppress raising Fifth Amendment claims.  In United States v. Batiste, supra – in which the court held a district court has broad discretion in deciding whether to grant an evidentiary hearing on a Fourth Amendment motion not supported by declarations or affidavits – the court distinguished Fifth Amendment motions.  It stated:

It is important to note the distinction between the Fourth Amendment probable cause requirement for warrantless arrests and the Fifth Amendment prohibition against coerced confessions.  With respect to the Fifth Amendment voluntariness requirement, “[a] defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.”  Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 1782, 12 L. Ed. 2d 908 (1964).

Batiste, 868 F.2d at 1092 n.5.  This distinction also finds support in cases holding in various contexts that Fifth Amendment rights are more fundamental than Fourth Amendment rights.  Compare, e.g., New Jersey v. Portash, 440 U.S. 450 (1979) (barring use of involuntary confession to impeach testifying defendant) with United States v. Havens, 446 U.S. 620 (1980) (allowing evidence obtained during search in violation of Fourth Amendment to be used to impeach testifying defendant) and Withrow v. Williams, 507 U.S. 680 (1993) (holding Fifth Amendment claims cognizable in habeas corpus proceeding) with Stone v. Powell, 428 U.S. 465 (holding Fourth Amendment claims not cognizable in habeas corpus so long as defendant had prior opportunity to litigate claim in original trial).  See also Withrow, 507 U.S. at 691 (giving as one reason for declining to extend Stone to Fifth Amendment claims that privilege against self-incrimination is “a fundamental trial right,” (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) and adding emphasis)).

Third, there’s an argument that local rules or other provisions requiring declarations or affidavits can’t be applied where the defendant doesn’t have personal knowledge of the relevant facts.  As recognized by one court applying the Northern District of California rule cited above:

Certain applications of this rule, however, would be unfair.  The most obvious cases where rigid application of the rule would yield unduly harsh results are those instances where defendants were not present or could not be expected to know the key facts, and motions challenging civilian witness identifications.  In such circumstances, defense counsel will find it virtually impossible to obtain voluntary sworn statements from the officers involved, or from witnesses whose names they do not know (because the names have been redacted by the government).

United States v. Diaz, No. CR 05-00167 WHA, 2006 WL 2990219, at *1 (Sept. 28, 2006).  See also United States v. Cagle, 849 F.2d 924, 927 n.6 (5th Cir. 1988) (noting that government witnesses “were the only ones who could attest to the events surrounding the seizure since [the defendant] was ignorant of the agents’ actions”).  Perhaps another example would be where the defendant has a legitimate reason for thinking a witness outside his control will provide supporting evidence – based on perhaps a police report or an investigator’s interview – but the defendant can’t get a declaration or affidavit from that witness.

And, in applying this limitation, keep in mind what the facts are that matter.  As one example, consider the question of probable cause for an arrest or warrantless search or the question of reasonable suspicion for a Terry stop.  The defendant will know what he in fact did, but what the defendant in fact did is not the question.  The question is what the officers were told or saw and how the officers interpreted what they were told or saw.  As the Seventh Circuit explained in a reasonable suspicion case:

The facts allegedly constituting reasonable suspicion are peculiarly within the knowledge and control of the police.  To require the defendant to prove the absence of a reasonable suspicion without knowledge of the facts upon which the police based their assessment of the existence of reasonable suspicion is to place upon him an impossible burden.

United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985).

There’s also a fourth limitation I argued when I was handling district court cases in the Central District of California.  The limitation is based on the allocation of the burden of proof on Fourth Amendment issues.  What the defendant has the burden of showing is that there was a search and/or seizure and that he has standing to challenge the search and/or seizure, see United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005); United States v. Carhee, 27 F.3d 1483, 1496 (10th Cir. 1994), and what the government has the burden of showing, in the case of a warrantless search and/or seizure, is that some exception to the Fourth Amendment applied, see, e.g., United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992) (consent); United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991) (inventory search).  This means a defendant who establishes there was a warrantless search and/or seizure and establishes standing prevails unless the government produces evidence establishing an exception to the warrant requirement.   It follows that all the defendant has to affirmatively offer in declarations and affidavits is evidence there was a warrantless search and/or seizure and he has standing, and that he may then wait to challenge the government’s evidence through cross-examination and/or rebuttal evidence if cross-examination does not suffice.  In at least some cases, I’ve gotten an evidentiary hearing based on such limited declarations.

While I’m not aware of any case law affirming this reasoning, it’s at least consistent with the holding of the Seventh Circuit in United States v. Ruth, 65 F.3d 599 (7th Cir. 1995).  The court upheld the denial of a motion there only because the defendant “repeatedly declined the opportunity to submit an affidavit or testify regarding his privacy interest.”  Id. at 604.  The court explained the defense had to provide such an affidavit or testimony because:

[I]t is Ruth, not the government, who bears the burden of establishing a privacy interest, and we agree with the district court that “without an affidavit or testimony from the defendant it is almost impossible to find a privacy interest because this interest depends, in part, on the defendant’s subjective intent and his actions that manifest that intent.”  Mem. Op. at 4.

Ruth, 65 F.3d at 605.  Though this explanation doesn’t affirmatively say standing is the only fact the defendant has to produce evidence of, its rationale is limited to that fact.

Keep these limitations in mind when dealing with local rules like the ones I cite above – and in districts that don’t have such local rules.  There are ways to keep your client off the stand – or at least strictly limit what he has to testify about – when that’s in your interest.