Can a Defendant’s Declaration in Support of a Motion to Suppress Be Used Against Him?

A defendant’s testimony or declaration in support of a Motion to Suppress cannot be used by the prosecution as substantive evidence of guilt during the trial’s "case-in-chief."

Under the U.S. Supreme Court ruling in Simmons v. United States, a defendant should not be forced to surrender one constitutional right (the Fourth Amendment right against unreasonable search and seizure) to assert another (the Fifth Amendment right against self-incrimination)

This is critical because Federal district courts within the Ninth Circuit  and many state courts require that motions to suppress be supported by proper declarations from individuals with personal knowledge who are available for cross-examination (United States v. Herrera–Rivera, 832 F.3d 1166 (2016)) Declarations signed only by counsel, rather than by the defendant personally, may be insufficient to warrant an evidentiary hearing.

U.S. v. Wardlow, 951 F.2d 1115 (1991)) Courts have noted that declarations must "contain only such facts as would be admissible in evidence and shall show affirmatively that the declarant is competent to testify to the matters stated therein" (U.S. v. Wardlow, 951 F.2d 1115 (1991))

This puts a defendant in a tough position. He must waive his Fifth Amendment right to remain silent or give up his right to assert his Fourth Amendment rights against unreasonable searches and seizures.

The fundamental rule balancing these interests derives from Simmons v. United States, which held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection" (Simmons v. U.S., 390 U.S. 377 (1968))

This protection extends to declarations filed in support of suppression motions in California state courts and the Ninth Circuit (U.S. v. Moran-Garcia, 783 F.Supp. 1266 (1991); People v. Humiston, 20 Cal.App.4th 460 (1993))

The rationale is to prevent defendants from being forced to choose between asserting their Fourth Amendment rights and waiving their Fifth Amendment privilege against self-incrimination (People v. Coleman, 13 Cal.3d 867 (1975)) Courts have clarified that this prohibition applies to the "direct" use of suppression hearing testimony in the prosecution's case-in-chief (Brown v. U.S., 411 U.S. 223 (1973))

The other side of the balance is that if the defendant testifies the prior statement can be used for impeachment. See: People v. Douglas, 66 Cal.App.3d 998 (1977)). California courts have consistently held that if a defendant's testimony at a pretrial suppression hearing is inconsistent with his testimony at trial, the People may use such pretrial testimony for impeachment. (People v. Drews, 208 Cal.App.3d 1317 (1989)) The Ninth Circuit has similarly recognized that the use of prior inconsistent statements given at a suppression hearing can be used to impeach a defendant's trial testimony, whether given during direct or cross-examination. (U.S. v. Beltran-Gutierrez, 19 F.3d 1287 (1994)

In summary, while a defendant's declaration supporting a motion to suppress receives substantial protection from use in the prosecution's case-in-chief under Simmons, this protection does not extend to impeachment use when the defendant testifies inconsistently at trial, thereby balancing Fourth and Fifth Amendment protections against the integrity of trial testimony.

If you are facing criminal charges, Daniel Horowitz is certified as criminal defense specialist. This certification is issued by the State Bar of California, Board of Legal Specialization. You can reach this expert criminal law attorney at (925) 283-1863.