That’s right.  How many times have you said to yourself, “But what about the diminution of the coercive sequelae?”

I  wondered what would happen when Gov. Eliot Spitzer named long-time Administrative Judge of the Unified Court System, Jonathon Lippman, to the post of Presiding Justice of the Appellate Division, First Department.  After all, his career was entirely administrative, and he had no background in the courtroom from which I could divine his views.  On top of that, there were any number of other judges in the First Department, including Pataki’s old roommate, Rick Andreas, a perpetual A-lister for a Court of Appeals seat, who was passed over.

With time, questions get answered.  In People v. Packer, Justice Lippman writes the majority opinion, reversing denial of suppression of a knife found in a backpack.  The facts are:

Defendant had been a passenger in a car operated by an individual sought by the police for cashing forged checks. When the car was stopped by the police so that the arrest of the suspected check forger could be made, defendant attempted to leave the vehicle but was told by one of the officers assisting in the arrest, Officer Jones, to remain in the car and place his hands where they could be seen. A moment later, defendant was directed by Jones to step out of the car. He complied, and was immediately frisked. A small knife was recovered from one of his pockets. Jones then asked defendant for identification. Defendant responded that his identification was in his backpack, which he attempted to retrieve from the back seat of the car. Jones, however, stopped him, saying, “I will get the bag.” Once Jones had the bag, he asked defendant if he could open it to look for defendant’s identification. Defendant replied “yes.” Jones unzipped the bag, and inside found the knife upon which defendant’s conviction of attempted possession of a weapon is premised.

The People concede on appeal that the original frisk was bad, but that the subsequent search of the backpack was on consent.  In a 3-2 split, the Court held that the consent was tainted by the initial unconstitutional frisk and suppressed and dismissed.

Not a bad decision.  Not bad at all.  But that’s not what this post is about.

Judge Lippman wrote the majority opinion, and it’s quite an extraordinary read.  Not so much for its content, but its language.  Consider,

The sole attenuative circumstance urged by the dissent is that, after the frisk, defendant was not arrested and placed in handcuffs. It is not explained, however, how this forbearance from even more pronounced illegal intrusion would have communicated to defendant that, notwithstanding the just concluded frisk, he was no longer subject to the authority of the officers who had in the preceding moments blockaded the car in which he was a passenger, prevented him from exiting the vehicle, and then directed him out of the vehicle, where he was summarily frisked. It will nearly always be possible to hypothesize some greater level of intrusion to which a defendant might be submitted. Attenuation, however, does not lie in an imagined differential, but in an appreciable diminution of the coercive sequelae of prior illegality.

Is that breathtaking or what?  I intend to use this quote wherever possible, and there is always room for “appreciable diminution of the coercive sequelae of prior illegality” in every case. 

Bear in mind that one of the pervasive criticisms of the various Appellate Divisions around the State of New York is that their decisions tend to be a tab spartan.  If they say anything at all, it’s often a string of quotes from other cases with little seguey in between.  Granted, these are courts that are buried in briefs of dubious merit and even worse writing, but then that’s why they pay appellate judges the big bucks.

So, Justice Lippman’s opinion, showing an exceptional degree of attention to language, and turning some mighty fine phrases in the process, is most refreshing.  The only downside is that most criminal defense lawyers will have to pull out their Funk & Wagnalls to make sure they understand what he said.  Big words can do that to a lawyer.

But as long as People v. Packer is on the table, let’s consider what the dissent had to say about it.

Upon the conclusion of that brief frisk, defendant’s “momentary seizure” ended, and the consensual nature of the remainder of the encounter was restored (United States v Davis, 202 F3d 1060, 1062 [8th Cir 2000], cert denied 531 US 883 [2000]).

Uh, a federal case, and from the 8th Circuit (wherever that is)?  Well, let’s think lawyerly about this.  It was only a “brief” frisk, as opposed to those long, leisurely frisks.  The defendant’s “momentary seizure” ended upon the completion of the “brief” frisk where the cops recovered a small knife, because of what?  Did he suddenly feel free as a bird to exercise his  right to ignore the cops who had just frisked him?

So the defendant, now freed for the harsh bonds of his momentary seizure, made a knowing, voluntary choice to allow the police officer who had just demanded his identification to search his backpack, according to the dissent.  No pressure at all, the defendant did it because he wanted to do it.  Free will at work, nothing more.

Even without Justice Lippman’s over-wrought prose, he had this case nailed.  But as long as Justice Lippman keeps deciding cases the right way, and writing opinions like Packer, I think he’s going to be one of my favorite judges of all time.  Way to go, baby!