Thursday, January 23, 2014

4th Amendment Rights and SCOTUS SWAG

Posted By on Thu, Jan 23, 2014 at 10:52 PM

click to enlarge Quill_1.jpg
When the United States Supreme Court took up the only criminal case on its calendar this year, a local attorney was at counsel table.

Arcata attorney Jeffrey Schwartz — husband to the North Coast Journal’s Media Maven, Marcy Burstiner — didn’t argue the petitioner’s case, but was asked to sit in and advise by appellate attorney Paul Kleven, who argued the case of USA v. Navarette before The Nine earlier this week. Schwartz, a former Humboldt County Deputy District Attorney, was the trial attorney on the case, which saw two brothers, Lorenzo and Jose Navarette, plead guilty to marijuana possession charges after a 2008 traffic stop in Mendocino County.

The traffic stop occurred after someone in Humboldt County called 911 to report they’d been run off the road just north of the Mendocino County line by a pickup truck driving recklessly while heading southbound. Police issued a “be-on-the-lookout” through dispatch, identifying the color, make, model and license plate number of the Navarettes’ truck.

A California Highway Patrol officer spotted the truck in Mendocino and tailed it for several miles. The officer didn’t see anything reckless or out of the ordinary about the way Lorenzo Navarette was driving, according to court records, but decided to pull him over anyway, based solely on the anonymous tip provided to 911 dispatch. After stopping the truck, the officers smelled marijuana and searched the vehicle, finding 30 pounds of marijuana, trimming sheers and plastic bags in the truck bed.

In the Mendocino County trial court, Schwartz argued the traffic stop was illegal and that an anonymous tip didn’t give officers probable cause to effect the traffic stop. Schwartz’s take on the case was if an anonymous tip is all cops need to pull someone over, then what’s to keep a disgruntled neighbor or a jilted lover from simply calling in a fake reckless driving complaint? It opens the door for all kinds of violations of citizens’ Fourth Amendment rights against unreasonable search and seizure, Schwartz argued.

The judge disagreed, as did a state appellate court. But Kleven kept pressing the issue and ultimately petitioned the U.S. Supreme Court for review.

When it came time for oral arguments in the case Tuesday, Kleven asked Schwartz to join him at counsel table.

“It was mostly for the moral support, and he needed to fill that side of the counsel table because the other side was going to have a bunch of people,” Schwartz said with a chuckle, adding that he wound up slipping Kleven a number of notes during arguments.

According to news reports on the hearing, the Supreme Court justices peppered Kleven with a bunch of hypotheticals and genuinely seemed to have fun probing the issue, asking about nuclear bombs and babies stuffed in car trunks. Justice Sotomayor even weighed in on her mother’s critiques of her driving.

To get a full picture of the arguments, check out the Associated Press story here or the official Supreme Court Blog story here. For those who want to hear the whole thing, the court posts audio of all oral arguments here, though it hasn’t gotten around to posting the Navarette case just yet (maybe check back in a few days). And finally, you can read a transcript of the hearing here.

For Schwartz, the trip was a chance to get a first-hand look at the most hallowed institution in his profession, something few lawyers get to do. While milling around the court after the hearing, Schwartz said he was surprised to see Mendocino County Superior Court Judge Clayton Brennan, who had denied Schwartz’s motion to set aside the charges against the Navarettes — the very denial being appealed to the Supreme Court.

“He said, ‘I figure the likelihood that any ruling I make goes to the Supreme Court is pretty slim, so I thought I should be here,’” Schwartz recalled.

And, it turns out, Schwartz walked away from the court Tuesday with more than just memories and, possibly, a hand in changing United States law — he walked away with some SCOTUS SWAG. Turns out everyone who sits at counsel table gets a white quill. Who knew?
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Thadeus Greenson

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