Sunday, January 10, 2010

Courtroom and real world facts...

The concept of 'reasonable suspicion' in the Fourth Amendment analysis has been difficult to apply in concrete cases... But the Ninth Circuit has said it pretty well:

Reasonable suspicion must be founded upon a particularized and objective basis for suspecting the particular person stopped of criminal activity. For this reason we must not accept what has come to appear to be a prefabricated or recycled profile of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on a hunch. This is required by the fourth amendment. The opinions of this court have put the nomenclature of reasonable suspicion into the public domain. We must not allow ourselves to be seduced by the reassuring familiarity of its echo."
U.S v. Rodriguez, 976 F.2d 592.

The question is when the irrational hunch-- not a legal basis for the stop, metamorphoses into the legal basis, 'reasonable suspicion.' In other words, how trained officers in their minds create and articulate the suspicion that in the eyes of pro-law enforcement judges is 'reasonable' indeed. Unfortunately, the officers' training makes them suspicious of just about everyone and everything. But is that reasonable? Sometimes, I wonder, how different can be my views of 'reasonableness' from those of judges and prosecutors... Often I wonder and ask myself, 'Why don't they see it the way I see it?' 'Maybe my view is unreasonable?' I leave the courtroom after my motion to suppress is denied with a great puzzle and concern in my mind... It is altogether mind-boggling.

Is 'reasonable suspision' a chameleon that changes its colors or is it simply in the eye of the beholder?
Who is going to decide whether the suspicion was reasonable?! The trial court judge and his findings of fact will be given heavy weight.

The U.S. Supreme Court has said that it will review questons of reasonable suspicion' de novoOrnelas v. U.S. 517 U.S. 690. But interestingly in the opinion written by Justice Rehnquist, the Court heavily deferred to the wisdom of the lower judges, raising a pointed rebuke by Justice Scalia in another case, who said, "I do not see how deferring to the District Court's factual inferences is compatible with de novo review... we have here a peculiar sort of de novo review." U.S. v. Arvizu, 534 U.S. 266.
This strange type of review begs another question. Since finding of 'reasonable suspicion' depends on the facts of each case and is highly fact-sensitive, is the standard of review going to make a difference? After all, the facts drive the case. So, we are back to the square one. The trial judges will have almost absolute discretion over motions to suppress. They control what facts come into the courtroom. They have discretion to rule over admissibility of questions, what evidence should come in at the hearing... Many times I have lost motions to suppress because the issue I was driving at was precluded from being developed... 'Objection...'. 'Sustained.' 'But, Your Honor....' 'Sustained! Counsel,  move on to the next issue.' 'Can I make the record?' 'No, move on.' The end of the hearing. Motion Denied.

So, often there is a wide gap between the real world and the courtroom... It becomes so bad that the entire process really turns into a circus with artificially created figures... As a trial lawyer you have two options, either leave the courtroom in utter disappointment, or like a magician try to manipulate it... It entails a lot of acting, just like in Hollywood.