Of equal interest in the opinion was the courts resolution of whether the defendant was prejudiced at all. The court first noted that the defendant's 'silence' in not contesting the accuracy of the officer's averments in the application essentially conceded to their truth. The defendant countered that such an analysis would compel the defendant to choose between testifying at a Franks hearing and making admissions that could be used against him later, or tacitly accept the violation of his rights. The courts response to that argument was as follows:
In testifying at a Franks hearing, Dominguez would not have had to “forfeit his Fifth Amendment right to remain silent,” as the court of appeals concluded. State v. Dominguez, 2009 UT App 73, ¶ 17, 206 P.3d 640. In fact, the law is well settled that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “Without this rule, a defendant would have to surrender his Fifth Amendment privilege against self-incrimination in order to assert a valid Fourth Amendment claim.” State v. Hansen, 2002 UT 125, ¶ 49 n. 4, 63 P.3d 650.
Note: The case is yet another example that, even if a violation of law is proved in the area of search and seizure, courts are expecting that there be a policy justification before blindly ordering a suppression of evidence.
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