Use of double hearsay to show initial private search at suppression hearing violated Confrontation Clause

The state’s use of double hearsay concerning an alleged private search in Denver before the package arrived in New Mexico violated the defendant’s right to cross-examine his accusers. This was no mere hearsay as a “basis for acting”; it went to the heart of the suppression issue. This court has previously held that double hearsay about apparent authority to consent to a search was a denial of confrontation in State v. Hensel, 106 N.M. 8, 738 P.2d 126 (Ct. App. 1987). State v. Rivera, 2007 NMCA 104, 142 N.M. 427, 166 P.3d 488 (2007), certiorari granted, No. 30,542, August 8, 2007:

[*16] We see no reason to distinguish Hensel from the facts of this case. The question in Hensel, whether the mother had authority to consent to the search, was no more fundamental than the question in this case, whether the package was opened by private parties in Denver. We agree with Defendant that the State had the burden to show, by means of competent evidence, that the package was opened by private parties with no state action in Denver.

[*17] Ordinarily, the defendant has the burden of showing a reasonable expectation of privacy that was breached by state action. … Because the question of whether the package was opened by private parties in Denver implicates the reasonableness of Defendant’s expectation of privacy, it would typically be Defendant’s burden to show that the package was not opened by private parties, or that the package had been opened with state involvement. See Jacobsen, 466 U.S. at 119 (“[I]t hardly infringed respondents’ privacy for the agents to reexamine the contents of the open package.”).

[*18] But we believe that in this case the burden shifted to the State when it refused to provide the names of the bus station employees who were involved. When the state “has unique access to the pertinent information,” and the state has refused to share its access with the defendant, principles of fairness dictate that the burden be shifted to the state. State v. Pennington, 115 N.M. 372, 379, 851 P.2d 494, 501 (Ct. App. 1993); see also Campbell v. United States, 365 U.S. 85, 96 (1961) (“[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.”); cf. Boone v. Lightner, 319 U.S. 561, 570 (1943) (“[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.”) (internal quotation marks and citation omitted). In this case, Defendant requested that the State disclose the names of the employees who opened the package, and the State refused. With the State failing to share its access to the relevant information, it became the State’s burden to show that a prior search by private parties with no state involvement had taken place. Because the State had the burden to prove this key issue in the suppression hearing, and because the only evidence presented was in the form of double hearsay, we conclude that the result in Hensel must also prevail in this case.