Tuesday, April 11, 2006

People v. Castro (Cal. Ct. App. - April 11, 2006)

One good thing about working in the social sciences is that very little of what you write can be objectively disproved, and thereby subject you to abject (and entirely proper) ridicule. I can say, for example, that the intracorporate conspiracy doctrine should properly apply to criminal conspiracies, and no one can "prove" me wrong. I've got an argument. Maybe it's a good one. Maybe it's a bad one. But you can't "prove" that my position is wrong. Unlike, say, mathematics. Or physics. Or being a doctor. When you're a doctor, when you say "It's diverticulitis," you're saying something that can (at least potentially) be objectively disproved. And you'd better be right. Because there are lives on the line. Not to mention malpractice liability.

That said, notwithstanding the comfort of my cushy position, I'm going to go out on a limb. And say something that will likely either be demonstrably true or false. Which is this:

This case will not remain good law. It'll either be reversed, depublished, or found contrary to federal law. Not because it's an intolerable opinion; indeed, I think that Justice Wiseman actually writes an incredibly good and well-reasoned opinion here, with entirely the correct caveats. Nonetheless, I think it reaches the wrong result, and believe that even the Supreme Court would so hold.

The issue is whether an entirely anonymous tip that contains essentially no corroboration whatsoever can constitute reasonable suspicion for a search. Here, an anonymous tipster calls and says that the defendant (who's driving a particular car) threatened to kill his wife and is driving over to her house. So the police, based entirely on that information, pull over defendant, discover that he has a weapon, and arrest him. The lower court holds that the anonymous tip constitutes reasonable suspicion, and Justice Wiseman agrees.

The most difficult part of the opinion, as Justice Wiseman recognizes, is that the Supreme Court unanimously held in Florida v. J.L. that an anonymous tip that someone in a certain place wearing a certain shirt possessed a gun doesn't justify even a Terry stop. So it's similarly darn hard to justify the search here. Justice Wiseman principally holds that the exigent circumstances here were more severe than in Florida v. J.L. because there was an actual threat to kill someone. That's more serious, she (rightly) says, that merely possessing a gun or dealing drugs or something like that.

True. But it still doesn't constitute reasonable suspicion to search. The police could have gone to the house and waited here -- if the defendant had shown up, that might well have constituted sufficient corroboration. But they didn't do that. Or they could have followed the defendant, and either waited until he approached the house (again, corroboration) or looked for another reason to stop him (speeding, broken tail light, weaving, etc.). They didn't do that either. Or, if they thought the threat was real, they could simply have stopped him and not tried to obtain (or use) evidence from the search. That stops the crime, after all. But they didn't do that either. Rather, they're arguing that reasonable suspicion justifies the search. And, in my view, it doesn't. I don't see that you can permissibly distinguish this case from Florida v. J.L. Justice Wiseman does a great job attempting to do so. But it doesn't work. It's an argument, yes. But not a persuasive one. It's not the "right" assessment of the relevant doctrines. Can I prove that fact objectively? No. But I'm still right.

But for the fact that the validity of the search isn't cognizable on habeas, I'd predict that this one would, at a minimum, go away on federal habeas review. (It still might. There's a subsidiary "juror coercion" issue that could still result in reversal; basically, the jury was 10-2, said that they were hopelessly deadlocked, agreed unanimously that further deliberations wouldn't work, and then the judge told them that the case was a pretty "straightforward" one, made some comments about constructive possession that were pretty unfavorable to the defendant, sent 'em back, and then less than two hours later, the jury's unanimous.) Regardless, I don't think that the Fourth Amendment holding will stand.

That's my prediction, anyway. We'll see soon enough if my crystal ball is working properly. Though, whether it is or whether it isn't, I still think that Justice Wiseman is wrong on this one. The anonymous tip doesn't have sufficiently corroborative elements. It doesn't constitute reasonable suspicion. Sorry, but it doesn't.