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Argument recap: What’s in a name?

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.”


Justices Sotomayor, Ginsburg, and Kagan raised early concerns that Halligan’s rule was inconsistent with Court precedents holding that the Fourth Amendment is violated by a police stop that is conducted without reasonable suspicion to elicit an individual’s name. In response to each, Halligan reiterated that the state did not question those precedents; rather, it questioned only whether application of the exclusionary rule is appropriate. In response to the Chief Justice’s concern that excluding from the exclusionary rule analysis all information that the police could find through a person’s name would allow unchecked use of an enormous range of information, not all of which could be legitimately related police business, Halligan suggested that the Court could narrow her rule to government records already lawfully in its possession.


Returning to the fact that the fruit in question was not the police’s observation that Tolentino was the driver of the car, Justices Scalia and Alito seemed perplexed that the Court was addressing this issue; they were even more so upon learning that the trial court had not ruled on the lawfulness of the stop.


Halligan shared her time with Pratik A. Shah, Assistant to the Solicitor General, who argued on behalf of the United States as an amicus in support of New York. Shah spent the bulk of his time defining the scope of information that might be covered under the state’s rule. In response to the Chief Justice’s continuing concern regarding what databases police could use to obtain records, Shah suggested that the Court could limit the state’s rule to governmental records that are produced, owned, and possessed by the government before the Fourth Amendment violation occurred. He also distinguished other identity evidence, like blood data, and urged the Court to leave that question for another day.


Schwarz used her rebuttal argument to make three main points: First, she clarified that under her rule, the exclusionary rule should apply “so long as there is sufficient causal relationship between the Fourth Amendment violation and the later discovery of evidence.” Second, she underscored the distinction between the body of the defendant, which is not suppressible, and evidentiary use of a name. Finally, she stressed the importance of applying the exclusionary rule here to deter “fishing expeditions.”

Recommended Citation: Sophia Lin Lakin, Argument recap: What’s in a name?, SCOTUSblog (Mar. 23, 2011, 12:09 PM),