CA holds that invoking privilege to wide ranging cross at suppression hearing permitted striking defendant’s testimony, despite trial court’s telling defense cross could be used at trial

California’s Fourth District holds that it was not error to strike the defendant’s testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion. Defense counsel invoked the Fifth on cross, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense. People v. Seminoff, 159 Cal. App. 4th 518, 71 Cal. Rptr. 3d 582 (4th Dist. 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor’s questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Bassett was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court’s previous rulings, she was willing to answer questions about whether she intended to sell the marijuana. However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.” The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor’s questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant’s testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

Defendant’s illegal detention did not have to be more aggressive than it was to make the officer’s subsequent actions part of the poisonous tree. People v. Packer, 49 A.D.3d 184, 851 N.Y.S.2d 40 (1st Dept. 2008):

The necessity of rejecting the People’s claim of voluntariness in this situation is not at all diminished by the circumstance that defendant was not more aggressively detained. Contrary to the People’s contention, the conclusion that defendant was illegally seized for Fourth Amendment purposes during his encounter with Jones is not rendered less compelling by the fact that he was not at the time of his consent formally arrested and placed in handcuffs. Nor, given the conceded directly antecedent illegality and the unjustified continued detention of defendant, can it avail the People that Officer Jones’s request for identification was unobjectionable or that his request to search defendant’s backpack might otherwise have elicited a consent that it would be possible to characterize as voluntary. The salient and dispositive circumstance under Hollman and Banks is that defendant’s consent was contemporaneous with, or at the very least immediately followed, his subjection to an illegal frisk and detention.

Search incident was supported by abundant probable cause for an arrest, and, even if not, the search would have been supported by the inventory exception. United States v. Lottie, 2007 U.S. Dist. LEXIS 95999 (N.D. Ind. October 12, 2007).*