Argument preview: Exclusionary rule and identity-related documents

The exclusionary rule generally suppresses evidence that police have obtained in violation of the Fourth Amendment. On Monday, March 21, in Tolentino v. New York (No. 09-11556), the Court will consider whether the exclusionary rule applies to pre-existing government documents relating to an individual’s identity, such as DMV records, that are obtained as a direct result of unlawful police conduct under the Fourth Amendment.

Background

In 2005, New York City police officers stopped petitioner Jose Tolentino while he was driving. Upon learning his name, the officers ran a computer check of DMV records, which revealed that his license had been suspended. Tolentino was arrested and charged with the aggravated unlicensed operation of a motor vehicle.

In the trial court, Tolentino moved to suppress his DMV records, or in the alternative, requested the court to hold a Mapp hearing, a pre-trial hearing conducted to determine whether evidence is to be suppressed because it is obtained as the result of an illegal search and seizure. Tolentino argued that because the police stop was unlawful – a point that the state contests – and his DMV records were accessible only as a result of this unlawful seizure, the records were therefore the suppressible fruit of a Fourth Amendment violation. The court rejected both requests, and Tolentino pleaded guilty. He then filed an appeal, arguing that the trial court had erred in summarily denying his suppression motion.

On appeal, both New York’s intermediate appellate court and its court of last resort – the New York Court of Appeals – disagreed. By a vote of five to two, the Court of Appeals held that evidence need not be suppressed when “the only link between improper police activity and the disputed evidence is that the police learned the defendant’s name.” In concluding that this type of identity-based evidence fell outside the purview of fruit-of-the-poisonous tree analysis, the state court relied mainly on INS v. Lopez-Mendoza (1984), an immigration case in which the Court held that the “‘body’ or identity of a defendant . . . in a criminal . . . proceeding is never itself suppressible as a fruit of an unlawful arrest.” The state court also relied on immigration cases from the federal courts of appeals holding that when an illegal stop or seizure leads only to the discovery of the defendant’s name, which police then use to check pre-existing immigration files, those files are not subject to suppression. Here, the state court noted, the DMV records at issue were public, compiled independently, and already in the government’s possession before the traffic stop. Moreover, the state court emphasized, the social costs of applying the exclusionary rule to cases involving identity-related evidence outweigh the deterrent effects:  police are already sufficiently deterred from conducting illegal stops because the exclusionary rule will apply to other evidence recovered in the course of such unlawful conduct.

Tolentino filed a petition for certiorari, which the Supreme Court granted on November 15, 2010.

Merits Briefing

In his brief on the merits, Tolentino argues that the traditional remedy of exclusion should apply to identity-related evidence because such evidence is no different than any other illegally obtained evidence to which the exclusionary rule applies.   He rejects the lower court’s suggestion that the rationale underlying the Supreme Court’s decision in Lopez-Mendoza categorically exempts identity-related evidence from exclusion. Instead, he contends, that case stands only for the proposition that the exclusionary rule cannot be used to deprive courts of jurisdiction by allowing a defendant himself to become a suppressible “fruit.” Indeed, he continues, the Court has long held that the Fourth Amendment prohibits police from stopping an individual to obtain identity-related information – precisely the kind of illegal suspicionless search that occurred in this case. Had it not been able to learn his identity as a result of the illegal stop, the police would not have had any reason to access his DMV records. According to Tolentino, this is a classic situation to which the exclusionary rule applies. Moreover, the fact that a government agency had already created the DMV records before the traffic stop does not trigger the independent source doctrine, because those records only gained evidentiary significance as a result of the illegal police conduct.

Finally, Tolentino argues that the exclusionary rule should apply to the identity-related evidence obtained here in light of its deterrent value and low social costs. Looking to how the rule is routinely applied in analogous situations and in light of the privacy interests implicated, he argues that the illegal conduct at issue – a random, baseless car stop – is exactly the kind that is most effectively deterred by the exclusionary rule. He asserts, furthermore, that the social costs incurred by its application are no more than those that already ensue whenever the rule operates.

In its brief on the merits, New York counters that excluding the DMV records in this case would – contrary to Tolentino’s assertions – constitute an undesirable expansion of the scope of the exclusionary rule. First, because the state had already compiled and maintained the DMV records, the police had obtained these pre-existing records before any Fourth Amendment violation occurred. The Court’s repeated use of the words “obtained” and “acquired” in describing the evidence to which the exclusionary rule applies plainly excludes something that is already in one’s possession. Thus, regardless of whether those records or the defendant’s identity is ascertained through an unlawful act, the exclusionary rule simply does not apply when, as here, the police already had lawful possession of that information. Second, the only information obtained by the police as a result of the car stop was Tolentino’s identity, information that the Court has already held is not subject to exclusion. Third, any deterrent effect that suppression might produce is minimal given existing exclusionary rule incentives, as well as the availability of lawful alternatives to discovering license and registration violations. In light of such minor benefits, the social costs of exclusion – which, it asserts, are especially high when someone is driving with a suspended license – counsels against the application of the exclusionary rule to these pre-existing government identity-related documents.