Federal Judiciary

Argument recap: What?s in a name?

By Sophia Lin Lakin

During Monday?s oral argument in Tolentino v. New York, the Court wrestled with the extent to which the exclusionary rule applies (if at all) to information that is linked to a defendant only because the police learn the defendant?s name during an illegal search or seizure. Focusing on the practical implications for police, the Court sought an administrable rule that prevented unrestricted access to any information that might be gleaned from a person?s name, but also did not leave the police powerless to protect public safety.

Arguing for petitioner Jose Tolentino, Kristina Schwarz began by framing the issue in the case as one easily resolved by exclusionary rule analysis: a suspicionless stop for the purpose of eliciting a person?s identity is an unreasonable seizure under the Fourth Amendment. Any information that the police discover as a result of such illegal conduct should therefore be suppressed as the fruit of the poisonous tree. The fruit at issue here (a point on which Justice Scalia sought early clarification) was Tolentino?s DMV records. The observation by the police that Tolentino was the driver of the car ? which, according to Justices Scalia and Alito, would be the easier case ? was not included because the trial court had not addressed that issue.

Given that the government lawfully possesses DMV records independent of any illegal search, the Justices pushed Schwarz to articulate what practical effect would result from suppressing such identity-related evidence. Under the independent source doctrine, it would not, she agreed, exclude DMV records if the police verified through surveillance tapes that Tolentino had been driving the car shortly before the stop.

The Justices seemed less convinced by her explanation of what would occur if the police observed a person like Tolentino driving again, after the illegal stop. Attenuation analysis, Schwarz argued, would allow the police to arrest that person for future incidents of unlicensed driving, so long as enough time has elapsed to remove the initial taint ? a determination, she argued, that a court would perform on a case-by-case basis. When pressed on this point by Justice Breyer, she conceded that under her rule, the police would likely not be able to arrest someone who simply got back into his car following the initial stop and drove off. Responding to the Justices? concern that this would render the police powerless to stop an unlicensed driver from immediately violating the law again, she contended that the police could instead impound the car. This solution did not appear to mollify the Justices: on the one hand, it continued to restrict the police?s ability to prevent new violations; on the other hand, as Justice Kennedy pointed out, if the police can impound a car in the interest of public safety, why shouldn?t they also be able to arrest the driver?

Caitlin J. Halligan, General Counsel of the New York County District Attorney (and a nominee for a vacancy on the D.C. Circuit), argued on behalf of the state. Fielding her fair share of hypotheticals, Halligan defended the decision below by sticking firmly to the line that the exclusionary rule should not apply when an illegal search or seizure merely elicits an individual?s name.  If the elicitation of the name is not suppressible, she elaborated, neither is any information that ?flows from the name.?

Full post as published by SCOTUSBLOG on March 23, 2011 (boomark / email).