The Second Circuit has held that a petitioner’s declaration, on its own, need not make out a prima facie case for suppression in order for the petitioner to be entitled to an evidentiary hearing. Rather, if the declaration could support a basis for exclusion, then it must be supported by testimony. After testimony, if the petitioner has made out a prima facie case, then the burden of proof shifts to the government to show that the evidence should be admitted. “It is only once the affidavit has been considered and a hearing held that the applicant must have made a prima facie showing for the burden to shift to the government and suppression to be determined.”
“Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not accused or suspected of a crime, he was subject to no alcohol-related examination, and he received no citation for the swerve. These facts raise significant questions about the legality of the prolonged detention of the driver and the passengers. Although the timeline is inexact, the documents submitted by Millan-Hernandez leave little doubt that the July 2017 stop was extended beyond what was reasonably necessary to address and resolve the immediate traffic concern: The traffic inquiry lasted a matter of minutes; the occupants of the vehicle were then detained for approximately two hours as the local officer directed the group to await the arrival of CBP agents.”
“Our review of the record leads us to conclude that Millan-Hernandez presented sufficient evidence that her seizure was based on her race to entitle her to an evidentiary hearing on the issue. She declared in her affidavit that, once the officer determined that the car’s driver had a foreign passport, he did not question the driver further as to the alleged traffic violation before demanding that all of the passengers produce their ‘papers.’ The Police Report is consistent with Millan-Hernandez’s account. Neither it nor anything else in the record reveals an alternative plausible basis for questioning and detaining the passengers, and the officer did not report inquiring of the passengers about any traffic or civil infractions, nor issuing any citations.” “We have recognized that, when a law enforcement officer detains and questions an individual about her immigration status although she is not suspected of a crime, those circumstances offer a strong suggestion that the search or seizure was improperly based on race.”
The full text of Millan-Hernandez v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/doc/18-2107_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/hilite/