A motion to suppress evidence was filed in this case pursuant to R. 3:5-7. During the hearing on the motion defendant took the stand and testified in his behalf. After having answered several questions on cross-examination, he asserted his Fifth Amendment privilege and refused to answer a pending question and any further questions. Defense counsel then interposed an objection, contending that the question was irrelevant and that any answers given to further questions might tend to incriminate defendant. The State argued that defendant had waived his Fifth Amendment privilege by testifying and requested that the court compel the accused to answer.
The issue now before the court is whether a defendant's testimony in support of his motion to suppress evidence is admissible against him in a subsequent trial on the merits. It is well settled that one who testifies in his own
behalf thereby waives his Fifth Amendment privilege against self-incrimination and must answer all relevant questions asked during cross-examination. See, e.g., Brown v. Walker, 161 U.S. 591, 597-598, 16 S. Ct. 644, 40 L. Ed. 819 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314-316, 20 S. Ct. 944, 44 L. Ed. 1078 (1900); Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958); McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). Whether compelled testimony that tends to incriminate a defendant, given at a hearing on a motion to suppress evidence, may thereafter be used at a subsequent trial to possibly convict the accused, appears to be unresolved in this State.
This controversy thus involves an obvious tension between two constitutionally guaranteed rights. Must one who asserts his Fourth Amendment rights risk waiver of his Fifth Amendment privilege in order to do so? It is apparent from the outset that if an accused is forced to choose between testifying at a hearing on a motion to suppress and either remaining silent, or not contesting an alleged unlawful seizure of evidence, there will be an effective denial of one of our most precious constitutional safeguards. Such a decision would be directly contrary to the exclusionary rule as set out in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and subsequent case law. The consequence of it would be an emphatic "chilling" of the assertion of alleged marginal Fourth Amendment violations.
The Supreme Court considered this issue in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), wherein it was stated:
In order to effectuate the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures, this Court long ago conferred upon defendants in federal prosecutions the right, upon motion and proof, to have excluded from trial evidence which had been secured by means of an unlawful search and seizure. * * * More recently, this Court has held that "the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments. * * *" Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
* * * It seems obvious that a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim. The likelihood of inhibition is greatest when the testimony is known to be admissible regardless of the outcome of the motion to suppress. * * *
In Simmons defendant admitted ownership of certain items of seized clothing in order to have the requisite standing to bring a motion to suppress. It was this admission of ownership that the Government then sought to utilize against Simmons at the trial on the merits. In the case at bar there is no dispute as to defendant's right to bring the action since there is ample independent evidence of his ownership of the seized articles. However, the reasoning in Simmons has application to anything that an accused says at the preliminary hearing on a motion asserting that evidence has been seized
unlawfully. Naturally, a defendant will not be permitted to commit perjury or to contradict his testimony at a later trial on the merits. See Harris v. New York, 401 ...