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Jose Tolentino v. New York, USSC No. 09-11556, Cert. Granted 11/15/10

Dismissed as improvidently granted, 3/29/11


Decision below (New York Court of Appeals)

Question Presented (phrasing by On Point; check Docket or Scotusblog links for subsequent posting of official recitation)

Whether someone’s driving record is suppressible as the fruit of an illegal stop or arrest.


A mere 6 days ago, Mr. Badger raised an alert on the core of this issue:

United States v. Gross, 2010 U.S. App. LEXIS 21478 (6th Cir. 10/19/10) (discovery of valid arrest warrant didn’t dissipate taint of illegal stop: “We … hold that, where there is a stop with no legal purpose, the discovery of a warrant during that stop will not constitute an intervening circumstance.” There appears to be an intractable split of authority now, making this a very cert-worthy issue. Some of the earlier cases on the point collected here.)

Mr. Badger gets results!

Tolentino was stopped for driving a car playing music too loudly, on West 181st and Broadway at 7:40 p.m. on New Year’s Day. (That’s Washington Heights or thereabouts, near the George Washington Bridge, in case you’re interested. Who knew Manhattan even has a noise ordinance?) As suggested, a check with DMV revealed his license was suspended, so he was arrested for driving without one. Conceding, on the basis of INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that a defendant’s identity isn’t suppressible, Tolentino argued below that his “pre-existing DMV records” nonetheless were suppressible, because they were discovered only as the fruit of the illegal stop. Cataloging a few of the cases on the point, the New York Court of Appeals majority concluded that “identity-related evidence” may not be suppressed, under a now-familiar calculus: the costs of excluding such evidence greatly outweigh any conceivable deterrence of police misconduct. The court barely stops to catch its breath while hastily dismissing the idea that the result will encourage illegal stops in the hope that a pre-existing basis for arrest will be uncovered – police are already deterred by knowledge that evidence uncovered after an illegal stop will be suppressed. Yes, but, you’ve just said that the evidence at hand will not be suppressed, so where, exactly, is the deterrence? Not much analysis by the court, really, for such a far-reaching conclusion. Omitted from the discussion: the idea that flagrancy of police misconduct is a key variable in suppression calculus, so if the police are animated by the idea to stop or arrest for something they would otherwise have no intention of doing, just to see if they might get lucky with a warrant check, then you’ve knocked out a key component of the exclusionary rule. In any event, the Tolentino majority analysis seemingly would admit of no exception to the no-suppression rule. Taking a narrower view of Lopez-Mendoza, the Tolentino dissent would have held that “identity-related evidence can and should be subject to the exclusionary rule,” citing in support caselaw recognition that fingerprints – “paradigmatic identity evidence” – are suppressible.

This promises to be one of the more interesting criminal procedure questions on the OT 10 docket, with broad 4th amendment implications. Keep your eye on it.

Update. The QP has been posted:

Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

The cert petition is up as well. The issue, as framed by Tolentino, has a narrow aspect in the sense his argument is limited to suppressing only “documents” with immediate evidentiary significance. He was charged with driving without a license; he seeks suppression of DMV records he didn’t possess a license; presumably, if those records are suppressed, the prosecution will fail. Thus, this case is to be distinguished at least factually from suppressibility of evidence seized after discovery of an outstanding warrant. The latter is a recurrent variation on the theme of “identity-related” suppressibility, the leading case possibly being U.S. Green, 111 F.3d 515 (7th Cir. 1997) (“any taint from this unconstitutional seizure was dissipated by the subsequent legal arrest of Avery pursuant to an outstanding warrant”). Whether an analytical distinction can be made between that situation and the one exemplified in the case at hand remains to be seen.

Still more: State v. Moralez, KS Ct. App. No. 102,342 (11/24/10), worthy of mention not so much for the holding (discovery of warrant attenuated taint of illicit detention) but becuase of the dissent, which offers a powerful rebuttal to the majority. (The dissent stresses the split of authority but fails, alas, to note the Tolentino cert grant.)

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