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The U.S. Supreme Court on Monday debated a case testing the scope of the exclusionary rule in oral arguments that featured a lawyer who also is a nominee to a federal appeals court. Caitlin Halligan, general counsel to the Manhattan District Attorney’s office, argued in Tolentino v. New York, even as she awaits a final Senate vote on her nomination to the U.S. Court of Appeals for the D.C. Circuit. It was Halligan’s fifth argument before the high court; she argued three as New York state’s solicitor general and one for Weil Gotshal & Manges before heading to the New York County DA’s office. President Barack Obama nominated her to the D.C. Circuit last year, and the Senate Judiciary Committee approved her nomination earlier this month. The fact that she was arguing on the pro-law enforcement side of a Supreme Court case became a rallying point for her supporters, countering the view of Republicans that she is too liberal for the appeals court. Judith Schaeffer, vice president of the liberal Constitutional Accountability Center, which supports Halligan’s nomination, said the argument was evidence that “Ms. Halligan’s record is replete with arguments made on behalf of her clients that could be characterized as ‘conservative,’ along with others that could be characterized as “liberal.’” Tolentino asks whether motor vehicle records obtained by police after learning a suspect’s name in an illegal search must be excluded from use at the suspect’s trial. Halligan argued strenuously that it would “blink reality” for police not to be able to access their own records to find out about a suspect they had stopped in a routine car search. “Asking for a name is a routine and accepted part of any stop because the officer needs to know who he’s dealing with,” Halligan asserted. Even if the search was eventually found illegal, she said that asking the name is legal, and the informational “fruit” from that inquiry should not be suppressed at trial. Most justices appeared to agree, though some voiced concern about the power of police in the information age to “find out an awful lot” about someone by merely learning a suspect’s name, as Chief Justice John Roberts Jr. put it. Halligan’s adversary, Kristina Schwarz of the New York Legal Aid Society, argued that if the exclusionary rule does not apply to DMV records, police will feel empowered to conduct “fishing expeditions into this sea of data.” She said such a ruling from the high court would provide police with a “fresh incentive to make suspicionless arrests.” Schwarz struggled to answer justices who asked her what police are supposed to do if they learn, as they did in the case before the Court, that the driver they had stopped had had his license suspended 10 times. “Are they supposed to say, ‘Oh, you know, we shouldn’t have stopped you; I’m sorry, go ahead, have a nice day?” asked Justice Anthony Kennedy. Schwarz said police could impound the car or tell the driver to find a properly licensed friend to drive it, but the justices seemed unconvinced. Both lawyers also had to weather a blizzard of hypotheticals about fictional suspects with names ranging from Justice Stephen Breyer’s Dagwood (from the long-running Blondie comic strip) to Justice Elena Kagan’s more modern Keyser Soze (from the 1995 film The Usual Suspects.) Assistant to the U.S. Solicitor General Pratik Shah also argued in support of Halligan’s position. The case stemmed from an early morning car stop in Manhattan on New Year’s Day 2005. After obtaining the name of driver Jose Tolentino, police accessed information from the Department of Motor Vehicles indicating that his license had been suspended 10 times. Police arrested Tolentino. Tolentino asserts the police had no “reasonable suspicion, probable cause, or any other legal justification” for the stop, but police say his car radio was playing too loudly. In a suppression motion, Tolentino argued that even though the records existed before the stop, they should be excluded from his trial because they were obtained “as a direct result of the defendant’s illegal street stop and subsequent arrest.” The New York County Supreme Court rejected the suppression motion, finding that Tolentino had no valid expectation of privacy in files maintained by the DMV. The appellate division affirmed, because Tolentino’s driving records were “compiled independently” from the arrest. A year ago, the New York State Court of Appeals affirmed the lower court, citing the U.S. Supreme Court’s 1984 decision in INS v. Lopez-Mendoza, which found that a suspect’s name cannot be suppressed even if an arrest was illegal. The New York court interpreted that ruling to create a categorical exception to the exclusionary rule for all identity-related information. The Electronic Privacy Information Center filed a brief on Tolentino’s side asserting that with modern databases, police can easily obtain enormous amounts of information quickly in a police stop. “No longer does the stop of a vehicle provide access to simple information about the status of the car,” wrote the center’s Marc Rotenberg. But law enforcement groups and government agencies argue that because the information was already in government hands before the illegal stop, it was not tainted and should not be suppressed. “Given the heavily regulated nature of motor vehicles, a person engaged in driving a vehicle on a public street has no reasonable expectation of anonymity,” wrote Kent Scheidegger of the Criminal Justice Legal Foundation. Tony Mauro can be contacted at [email protected].

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