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A Tale of Two Traffic Stops

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On Monday, the US Supreme Court will hear argument in two Fourth Amendment cases.  Both arise out of traffic stops for excessive noise -- one in New York City and one in Greenville, Alabama.

Lyle Denniston at SCOTUSblog has this long preview article on Davis v. United States.  The case involves the fruit of a warrantless search of a vehicle incident to arrest, a search that was considered legal under the precedents of both the Alabama state courts and the Eleventh Circuit at the time of the search.  While the case was pending on appeal, the Supreme Court's decision in Arizona v. Gant effectively overruled those precedents and rendered the search illegal.  The question is whether the "good faith" exception that now applies where the police obey search warrants or facially valid statutes should be extended to cover judicial precedents.  Orin Kerr of GW Law and Volokh Conspiracy, representing Davis, asks the Court to exclude the evidence not to deter police misconduct, the usual rationale for exclusion, but rather to preserve the Court's own ability to reconsider precedent.  CJLF's response to his argument is here.

In Tolentino v. New York, the defendant asks for suppression of an item of evidence that was in the government's possession the whole time -- his DMV record showing ten license suspensions.  The claim is that this is a product of the challenged traffic stop because the record was not in the government's possession in a "meaningful sense" until the police learned his identity and linked him to the record during the stop.  New York and supporting amici (including CJLF) argue against exclusion based on the cases holding that identity of the defendant is not suppressible.  CJLF's brief by Christine Dowling also argues that a driver on a public street has no protectable interest in anonymity.  We require license plates that identify the owner.  We require clear windshields and side windows that let anyone see the driver.  Once you decide to drive a car on a public street, you are putting your identity on display for everyone to see.

New York is represented by the Manhattan DA's general counsel Caitlin Halligan, who has been nominated for the D.C. Circuit.

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The Tolentino defendant seems, when you strip away everything else, to simply be making a "but for" argument, but I thought that the courts had rejected that already.
Kerr's argument seems pretty dopey. In the course of their duties, police shouldn't be expected to be more learned in the law than federal appellate judges. And it seems beyond odd that the exclusionary rule, which is judge-made, should be expanded to exclude evidence gotten in compliance with federal appellate court precedent, and it seems odder still to allow in evidence gotten by executing a faulty search warrant if the warrant was bogus, so long as the cops acted in good faith but to exclude evidence gotten in compliance with the law as set forth by appellate judges.

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