The opinion of the court was delivered by: CON. G. CHOLAKIS
MEMORANDUM DECISION AND ORDER
In a nine count indictment returned on February 12, 1992, defendant Kenneth R. Lonzo is charged with participation in a conspiracy to distribute cocaine.
Sometime in the late evening hours of February 12, 1992 or the early morning hours of February 13, 1992, an arrest warrant for Lonzo was issued and soon thereafter he was arrested and taken into custody at his residence, 68 Maple Street, Hudson Falls, N.Y. Subsequently, a search of that address was made and certain items were seized by the Government.
Lonzo now seeks (1) suppression of the evidence seized, (2) dismissal of the indictment, (3) a Bill of Particulars, (4) the fulfillment of certain discovery requests, and (5) permission to make additional motions.
Lonzo claims that the search of his residence was illegal. No search warrant was ever issued and the search took place only with the consent of co-resident Lisa Bordeau. Lonzo accepts the fact that Bordeau had sufficient joint control of the premises to consent to a search; however, he claims that -- at that time -- she could not provide a knowing and voluntary consent to search the premises. This inability on the part of Bordeau was allegedly due to: the stressful day she'd had
; drowsiness, caused by the prescription medication
which she had taken prior to going to bed that evening; and the fear that she too would be arrested if she did not comply.
As a result, Lonzo contends that it is for the Court to make a factual determination (i.e. a hearing) as to the voluntariness of this consent to search.
In opposition, the Government contends that:
The defendant having moved for suppression, an evidentiary hearing must be held to determine the admissability of items seized. [citations omitted] At this evidentiary hearing the United States will establish that Lisa Bordeau freely and voluntarily gave her written consent for the search conducted at 68 Maple Street, and that the evidence discovered was lawfully seized.
Government's Memo of Law, p. 9.
By this conclusory statement, the Government consents to a suppression hearing. However, the Government does not rebut the factual assertions of Bordeau's affidavit with an affidavit of their own -- based on personal knowledge -- to show that a dispute warranting a hearing exists.
Given that this Court has faced this precise situation before, but has, until now, not placed both the prosecution and defense bars on notice of a rule on the issue, the Court will take this opportunity to do so. From this day forward, (1) suppression motions made before this Court must be supported by affidavits based upon personal knowledge, and (2) where such affidavits contain facts which, if true, would result in suppression, the opposition filed by the Government must also include affidavits based upon personal knowledge.
In addition to the present case, there is one other case containing a suppression motion in the present motion term. That motion is also supported by affidavits of defendants but not opposed by affidavits of government officers or others. See United States v. LaFrance, 92-CR-83. In addition, there is a motion to reconsider a prior ruling denying suppression or a hearing because defendant's motion was not supported by an affidavit based upon personal knowledge. See United States v. Liller, No. 92-CR-31. In light of the prospective ...