8.20 - 2. Burden Of Proof

• Jurisdiction: New York

2. Burden of Proof

As in other types of suppression hearings, although the prosecutor must initially present evidence establishing the legality of the search and seizure, it is the defendant who has the burden of proving the illegality of the search and seizure by a preponderance of the evidence.¹⁵⁷⁶ However, where the justification for a warrantless search is based on consent, the prosecutor has the burden of establishing that the consent to search was freely given.¹⁵⁷⁷ Similarly, if the defense is able to show that the search and seizure is a fruit of the poisonous tree (e.g., the probable cause for the search was based on an illegally obtained confession¹⁵⁷⁸ or an illegal arrest),¹⁵⁷⁹ then the burden falls once again on the prosecutor to prove the admissibility of the seized property by clear and convincing evidence.¹⁵⁸⁰ This may be achieved by establishing attenuation,¹⁵⁸¹ independent source¹⁵⁸² or inevitable discovery.¹⁵⁸³

Often, police officers base their conduct (e.g., “stop-and-frisk” searches,¹⁵⁸⁴ even more intrusive searches or formal arrests) on information received via police radio communications. A presumption exists that information contained in a police radio bulletin is true, and the knowledge of the officer(s) giving rise to the bulletin is imputed to the officer(s) receiving it. Accordingly, an officer who receives a radio bulletin and conducts a search and seizure based upon it may testify at the hearing concerning the contents of the radio bulletin. If this information on its face establishes the requisite probable cause for the search and seizure (or reasonable suspicion for a stop-and-frisk) and defense counsel does not challenge the underlying basis for the radio bulletin, the prosecution may rely on the presumption to meet its burden of proof.¹⁵⁸⁵ However, if defense counsel challenges the source of the information for the bulletin, the presumption disappears. In that case, the prosecutor must establish that the officer giving rise to the radio bulletin actually possessed the information, and that the source or basis of the information was sufficiently reliable to justify the officer’s action.¹⁵⁸⁶

When the original source of the information is someone other than a law enforcement officer, the People are required to identify the individual (not necessarily by name), as well as the circumstances under which the individual allegedly obtained the information.¹⁵⁸⁷ Known as the Aguilar/Spinelli test,¹⁵⁸⁸ this two-pronged showing is designed to allow the court to properly assess whether the police actually possessed the requisite knowledge to justify the intrusion. At the hearing this showing may be satisfied by hearsay...