Kristina Schwarz Argues Before U.S. Supreme Court Today
MONDAY, MARCH 21, 2011

Today, Kristina Schwarz, a staff attorney with the Criminal Appeals Bureau, will argue before the Supreme Court of the United States on behalf of petitioner, Jose Tolentino, in Tolentino v. New York, making it the 37th case the Society has litigated before the High Court. Of the 36 cases litigated before the U.S. Supreme Court, the Society won 19.

The New York Law Journal
Legal Aid, D.A. to Argue Scope of Exclusionary Rule for Stop
By Daniel Wise
03-21-2011

A U.S. Supreme Court veteran will face a high court rookie this morning as they debate whether pre-existing government identity documents obtained as the result of an unconstitutional police stop must be suppressed as "the fruit of the poisonous tree."

The Manhattan District Attorney's Office will argue that the evidence that Jose Tolentino was driving without a license should not be excluded and that his conviction should be upheld. Making the prosecution's case will be Caitlin J. Halligan, the general counsel to District Attorney Cyrus R. Vance Jr.

The district attorney's office has not been back to the Court since 1982, when Robert M. Pitler won a reversal of a state Court of Appeals ruling that New York's child pornography statute violated the First Amendment in New York v. Ferber, 458 U.S. 747. However, Ms. Halligan has appeared there four times, three times as New York's solicitor general and once while at Weil, Gotshal & Manges. She has a 2-2 record at the high court.

(Ms. Halligan recently made a different kind of Washington argument when she appeared at a Senate hearing on her nomination to the U.S. Court of Appeals for the D.C. Circuit, NYLJ, Feb. 03).

The Legal Aid Society, which will represent Mr. Tolentino in Tolentino v. New York, 09-11556, has been to the Court 36 times since 1963, most recently in 2007. But Kristina Schwarz, the 12-year veteran of the organization's appeals bureau who will represent Mr. Tolentino, has never argued there.

Ms. Schwarz argues in her brief that to put the "random baseless stop" of Mr. Tolentino beyond the reach of the exclusionary rule would "invite bold disregard for the Constitution."

Read the question addressed in Tolentino, Legal Aid's brief, the District Attorney's brief, and Legal Aid's reply brief, Ms. Halligan does not concede that the police stop was unlawful but argues that even if it was improper, "the exclusionary rule has never been applied to information that the government lawfully possesses prior to unconstitutional police conduct."

The car Mr. Tolentino was driving was stopped by police near 181st Street and Broadway on New Year's Day 2005. After ascertaining his name, the officers ran a routine computer check of Department of Motor Vehicle records and learned that his license was suspended with at least 10 suspensions imposed on at least 10 different dates.

After unsuccessfully moving to suppress the DMV records, Mr. Tolentino pleaded guilty to aggravated unlicensed operation of a motor vehicle in the first degree, a felony. In August 2005, he was fined $500 and sentenced to five years of probation.

The Appellate Division, First Department, unanimously affirmed the denial of the suppression motion in People v. Tolentino, 59 AD 3d 298 (2009). The Court of Appeals affirmed in People v. Tolentino, 14 NY3d 382 (2010), but with two dissenters, Chief Judge Jonathan Lippman and Judge Carmen Beauchamp Ciparick.

"Certainly, the deterrent purpose of the exclusionary rule should be applicable to identity-related evidence," Judge Ciparick wrote in a dissent faulting the majority for crafting "a new rule."

Intertwined Questions

The appeal to the U.S. Supreme Court presents two separate, but intertwined, questions:

  • Could officers use Mr. Tolentino's name, even if it was obtained after an illegal traffic stop, to access his DMV records under an exception to the exclusionary rule for "identity-related" information?
  • Were the DMV records themselves exempt from the exclusionary rule because they were already in the possession of the state and independently available to the prosecution.

With regard to identity-related information, the two sides differ over how to read the Supreme Court's 1984 decision in INS v. Lopez-Mendoza, 468 U.S. 1032.

In Lopez-Mendoza, the Court rejected the claim of an immigrant, who was the subject of a deportation proceeding, that the administrative body had no jurisdiction over him because he had been illegally arrested.

In a 5-4 ruling rejecting the claim, the majority stated that "the 'body' or 'identity' of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest."

Mr. Tolentino rejects the notion that the Supreme Court has ever expanded the jurisdictional rule in Lopez-Mendoza to "identity-related evidence." In fact, his brief argues that in rulings issued after Lopez-Mendoza, the Court refused to carve out exceptions to the exclusionary rule for "prototypical identity-related evidence" such as fingerprints or lineup identifications produced after a suspect had been illegally arrested.

The prosecution contends that the taking of a suspect's identity is "a logical and necessary corollary of the well-established principle that a defendant's person cannot constitute a suppressible fruit under the exclusionary rule."

"A defendant's name is the most basic and obvious basic component of a person's identity," the brief notes.

With regard to the DMV records, Mr. Tolentino argues that, despite being independently compiled, they must be suppressed because the officers were only able to access them after improperly gaining Mr. Tolentino's name.

"The independent source doctrine," the brief states, "operates only to allow the introduction of evidence that is discovered through lawful means."

The prosecution contends, however, that the exclusionary rule cannot be applied retroactively to bar use of evidence that was "indisputably" available to the police officers before the traffic stop took place.

"The police officers had lawful access to the pre-existing public records all along and the authority and ability to examine them at any time," the brief states.