They Say This Cat Tolentino's a Bad Mother— Shut Your Mouth! But I'm Just Talking 'Bout Tolentino! Then We Can DIG It!

As you can tell from the post title, today the Supreme Court dismissed as improvidently granted the writ of certiorari in Tolentino v. New York. As is usual with DIGs, the Court didn't explain the reason for the dismissal. But the oral argument transcript suggests a possibility: unanswered questions below.

Recall what happend here: Tolentino was pulled over by police, and arrested when the officers learned via a computer check of DMV records that his driver's license had been suspended. He sought to suppress the DMV records as a fruit of what he argued was an illegal traffic stop. The trial court denied the motion on the ground that DMV records aren't suppressible, a ruling upheld on appeal through the New York courts. The Supreme Court granted cert on this question: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

At oral argument, Justice Scalia quickly jumped in to ask counsel for Tolentino why he wanted to suppress the DMV records, rather than the officers' observations following the traffic stop.  Later, Scalia said, "What I'm saying is, you're getting at it from the wrong end. What should have been suppressed was the policeman's identification of the person who was driving the car." Justice Alito picked up on the same thing:

You want to suppress the knowledge that the police derived from the stop that Mr. Tolentino's license is suspended, and you would allow an exception to that only if there was attenuation. But why isn't the simpler solution to a case like this that you can't suppress the knowledge of matters that are in a government record, however you can suppress observations by the police on the scene that flow directly from the illegal stop?

A good question. Tolentino's counsel explained that in his motion to suppress he asked the trial court to suppress both the DMV records and the officers' observations at the scene of the traffic stop. The trial court, without holding a hearing, denied Tolentino's motion on the ground that DMV records are categorically not suppressible, and did not rule on whether the officers' observations were suppressible fruit of the traffic stop. That's apparently why the New York appeals courts didn't reach the question, either (if they were even aware of it).

Counsel for New York confirmed that account, and then argued that, under New York law, Tolentino had waived the issue of the officers' observations by pleading guilty without getting a ruling on that issue from the trial court. Of course, none of this was in the parties' briefing.  Then another bombshell: it turned out that none of the New York courts had reached the question whether the traffic stop was bad in the first place. That prompted Justice Ginsburg to ask,

May I ask you something about the practice in New York? I mean, there is an artificiality to this case because we are assuming that the stop was unlawful. . . . [T]he police said it was lawful, because the radio was blasting so loud. Why did this issue even -- the issue of "suppose it was unlawful" even come up, instead of the city or the county saying what the police stopped him for was a traffic violation, was perfectly legal? Why get to the constitutional question when the prosecutor brought into play the argument that this was a lawful stop?

Indeed, the prosecutor had argued that it was a good stop.  But remember that the trial court didn't hold a hearing on the motion, and as with the issue of the officers' observations, didn't reach the question of the stop's legality. Which Justice Alito found bewildering:

It does seem rather strange. That would have been, like, a 10-minute hearing. Why did you stop him? Well, he was playing the music too loud. Defendant testifies, I wasn't playing my music too loud. The trial judge says, Well, I believe you, or I believe you, and that's the end of the matter. It does seem really -- that's how things are done in trial court in New York City? You jump to these big constitutional issues and . . . .

(Earlier, Alito seemed taken aback by the notion, advanced by counsel for New York, that Tolentino was obligated to pester the trial court for a ruling on the suppressibility of the officers' observations in order to preserve that issue for appellate review.)

In rebuttal, Tolentino's counsel argued that he had not waived the issue of the officers' observations. Justice Sotomayor then asked, "[I]n what ways is it tied to the question presented about identity, which is the issue you sought cert on?" Counsel replied that the issue would be in play on remand.

So what do you think? DIG'ed because of a strange procedural history that didn't present the question that the justices seem to think should have been presented, and a basic question (the legality of the traffic stop) that should have been but never was passed on below?

Other oral argument highlights:

• An axe-related hypothetical: Justice Alito posing one in which police break into a house with an axe, find out that "Dagwood" lives there, and learn through a search of police databases that Dagwood "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 . . . ." Sounds like a job for John Shaft. Or James Bond.
• Another axe-related hypothetical, Lizzie Borden edition: Justice Breyer wondering what should happen if the police learn that, in addition to his driver's license being suspended, Tolentino is "wanted on 17 drug warrants and for 3 triple axe murders."
• Justice Kagan declaring: "I am Keyser Soze." (I could've sworn Kevin Spacey was Keyser Soze, but then again, I can't be sure of anything about that movie.)