by Bill Easton
A defendant who files a suppression motion often faces a common dilemma in both state and federal court. Judges commonly insist on the submission of a defendant's affidavit or declaration before granting an evidentiary hearing in many instances, especially in the context of claims rooted in the Fourth Amendment. In many of these cases, the judge is wrong, and defense counsel should litigate the necessity and content of the affidavit before submitting a declaration from the client. If counsel finally decides to submit such an affidavit, the document should be cautiously drafted by the lawyer with an eye towards its possible use against the defendant should he or she not prevail on the suppression issue.
As a threshold matter, in both federal and New York State court, an affidavit/declaration submitted in support of a suppression issue can not be used affirmatively against a defendant by the prosecution in its case in chief at trial. (United States v. Simmons, 390 US 377, 394  [holding " ... it intolerable that one constitutional right should have to be surrendered in order to assert another."]). Such a prohibition, however, does not extend to use of the affidavit for cross examination or impeachment purpose against the defendant. (United State v. Jaswel, 47 F3d 539, 544 [2d Cir. 1995]). Further, under some circumstances, the government may attempt to make use of such an affidavit at sentencing to take away "acceptance of responsibility" points or even to mount an effort to establish obstruction of justice. Thus, whether to submit an affidavit/declaration is a critical decision, especially in the context of constructive possession cases--where defendant has to establish an expectation of privacy in the premises at issue for the hearing, while at trial the nexus between defendant and the premises may become a hotly contested issue. Most clients, although avidly in favor of suppression, are keenly aware of the need for caution in the submission of an affidavit linking them to the “hot premises” despite the constitutional assurances of Simmons.
Standard for an Evidentiary Hearing
There is no requirement that a defendant submit affidavit to trigger an evidentiary hearing, even in a Fourth Amendment context, in either federal or state court. In United States v. Pena, 961 F3d 333, 339 [2d Cir. 1992], the Second Circuit held that a defendant is entitled to an evidentiary hearing if his papers raised a "sufficiently definite, specific, detailed and nonconjectural" factual basis for the motion. Thus, it is the factual basis, not the source, that is the critical focus for whether a hearing is necessary. Accordingly, defense counsel should take efforts to include police reports and government source material in the motion in order to provide as many facts as possible.
New York Courts sometime insist on an affidavit from the defendant if he or she is contesting the admissibility of evidence, including a statement, taken from the defendant as a result of an illegal seizure. These Courts mistakenly rely on People v. Mendoza, 82 NY2d 415  for this proposition. Recently, in People v. Battle, 109 AD3d 1155 [4th Dept. 2013], the Fourth Department clarified that Mendoza poses no such requirement:
We agree with defendant that the court erred in ruling that defendant, in order to be entitled to a suppression hearing, was required to submit an affidavit in support of her motion. As the Court of Appeals has stated, "suppression motions must be in writing, state the legal grounds of the motion and 'contain sworn allegations of fact,' made by defendant or 'another person'" (People v. Mendoza, 82 NY2d 415, 421 , quoting CPL 710.60 [emphasis added]). A suppression motion may be based on factual allegations made upon information and belief by defense counsel, provided that, as here, the sources of the attorney's information and the grounds of his or her belief are identified in the motion papers (see CPL 710.60). The court also erred in suggesting that defendant was required to deny participation in the crime. It is well settled that a defendant must "deny participating in the transaction or suggest some other grounds for suppression" in order to warrant a suppression hearing (see Mendoza, 82 NY2d at 429 [emphasis added]).
(Battle, 109 AD3d at 1156 [emphasis added]).
In the context of suppression of a statement, in federal court the mere assertion that agents did not administer the Miranda warnings is enough to trigger a hearing. (United States v. Mathurin, 148 F3d 68, 69-70 [2d Cir. 1998]). Moreover, 18 USC §3501(a) requires that the government prove outside the presence of the jury that a defendant's confession is voluntary before it is admissible against a defendant. In state court, the “safe harbor” of a suppression hearing regarding a statement from a defendant or an identification procedure is even greater. CPL § 710.60[b] prevents a prosecutor from objecting to the factual basis for those hearings.
Even after Battle, some trial courts still insist on an affidavit from the defendant in the context of a Fourth Amendment claim. Defense counsel, then, must engage in the difficult calculus on how much to concede in order to obtain the evidentiary hearing on a case-by-case basis.