Can a failure to testify at a suppression hearing be considered adverse?

We need not decide whether an adverse inference may be drawn from a failure to testify at a suppression hearing because the record here clearly establishes that the district court drew no such inference. Although the district court noted that the defendant did not take the stand in order to provide evidence of his state of mind, the district court explicitly stated that "I emphasize that I infer nothing from [defendant's] failure to testify." Rather than drawing an adverse inference, the district court was simply indicating that, by not testifying, defendant had failed to contradict the government's evidence with his own testimony. See United States v. Mullens, 536 F.2d 997, 1000 (2d Cir.1976) (government's evidence of waiver was uncontradicted because defendant chose not to take the stand at the suppression hearing and rebut government's version of events even though he might have done so without risk that anything he said could be later used against him at trial). The evidence presented by the government alone was enough to convince the court that the government had proven by a preponderance of the evidence that defendant voluntarily waived his rights, and the district court found no need to draw an adverse inference. The district court noted that the government bears the burden of proof and decided that, based on all the evidence presented, "the record here is sufficient to satisfy [the government's burden of proof]." Nothing in the

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