CA8: Confrontation clause doesn’t apply to suppression hearings; hearsay commonly used

Defendant was added to a conspiracy case after the codefendants had a suppression hearing. It was at first agreed that their suppression hearing testimony could be considered as to defendant as well, but then defendant equivocated on that. To some extent the trial court did, but the hearings were not identical. The appellate court finds no confrontation violation from use of parts of the prior hearing. There was probable cause for defendant’s initial stop. United States v. Rowe, 2017 U.S. App. LEXIS 26539 (8th Cir. Dec. 26, 2017):

No matter the comparison of the evidence adduced at both hearings, it was not erroneous for the district court to review evidence adduced at the August hearing. Although denying the right to cross-examine a witness at trial “would be constitutional error of the first magnitude” in most instances, the right of confrontation is not absolute. United States v. Boyce, 797 F.2d 691, 692-93 (8th Cir. 1986) (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966)). Courts may consider hearsay evidence at suppression hearings and it is not uncommon for different officers to testify at these hearings in various capacities. United States v. Thompson, 533 F.3d 964, 969 (8th Cir. 2008) (“Although not admissible at trial, the district court may rely on hearsay evidence at a suppression [*5] hearing.”). “[E]vidence consisting of the out-of-court statements of persons not testifying at trial may be admitted even though the defendant has no opportunity to either confront or cross-examine the declarants.” Boyce, 797 F.2d at 693. Thus, had any of the facts solely adduced at the August hearing been legally significant in the court’s analysis, the court did not err in relying on that testimony.

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