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(Alleged) Excessive Noise Driver #2

The Supreme Court heard argument today in Tolentino v. New York (transcript here).

There weren't too many surprises.  But if it wasn't clear before, it sure is now that Tolentino is "getting at it from the wrong end," (per Justice Scalia) by pursuing the wrong claim in the courts below.  Scalia noted right from the start that Tolentino would have a much easier time arguing that the police officer's observation of him as the driver of the car was suppressible as the fruit of an illegal seizure, rather than his DMV record.  But Tolentino waived this argument below as a matter of state law, a point the state's attorney Caitlin Halligan nicely drives home.

The Justices concocted a few colorful hypotheticals to test the limits of counsels' positions, such as Justice Breyer's driver discovered to have "no license, and in addition, he's wanted on 17 drug warrants and for 3 triple axe murders," and Justice Alito's man named "Dagwood," who police learn "is the guy [they've] been looking for, for the last 20 years.  He is responsible for all the drugs that come into this country, he's committed numerous acts of terrorism, he's a -- he's a serial killer, he's killed 50 people, we've been chasing him forever..."

Justice Breyer's example, though extreme, highlighted the possible implications of this case.  The idea of suppressing a DMV record and allowing a less-than-ideal driver back on the road might not leave us sleepless at night.  But suppressing a felon's outstanding warrants and criminal record, all because of a police error, is much scarier.  As CJLF's brief states (quoting USCA7), such an "official call of 'Olly, Olly, Oxen Free,'" should not be required.


In my view, the real problem here, and one that the questioning at argument highlights, albeit indirectly, is having suppression as a remedy AT ALL.

Q: What is it that gets suppressed?

A: The truth.

Whether the truth is a big, fat truth or an eensy-teensy truth should not make a bit of difference to principled adjudication. Once the law started down the path of truth-suppression, this case became only a matter of time.

I agree with you Bill, especially with your reference to truth and "principled adjudication". Thanks for the post Christine.

We have a vote for that. See Davis argument, page 32. We might even have three or four. Getting to five is tough.

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