Judicial Reports posts about the reversal by the Appellate Division, First Department, of a decision by Justice Gregory Caro to deny suppression in  People v. Gomez.   There was no question that the defendant was properly arrested for driving erratically with a suspended license.  But the inevitable search that followed became a source of some contention.

Justice Caro, a career Manhattan prosecutor before putting on a robe at Mayor Rudy Giuliani’s pleasure, is a familiar name to many of us.  His father, John Caro, was a Justice on the Appellate Division, First Department.  He was one of the finest that ever sat on that bench.  John Caro started his career as a police officer, moving on to the law and later the bench. 

Back in the good old days, when judges still considered the rights of defendants as being worthy of some consideration, John Caro held some sway.  His experience as a cop on the street made him painfully aware of the games that were played, the lies that were told, the motivation to fudge the truth and the details to put the bad guy away, even when the evidence might come up a bit short. 

Cops couldn’t fool Justice John Caro as easily as some others, because he understood what they were doing.  It was wonderful to have John Caro on your panel.  You knew there was one person sitting there who knew what really happened, and who wouldn’t just dismiss your argument and go with the odds.

Apparently, the son isn’t the father.  Not that he’s a bad judge, as I’ve never had any personal experience before him and can’t claim to know what makes him tick.  But he doesn’t have the experience that his father had on the street, and given the disinclination of appellate courts to reverse, the outcome in this case suggests that he blew it big time.

In the Gomez case, the Appellate Division held that the prosecutions argument that a search of the car post arrest was an inventory search, one of the plethora of exceptions that make the 4th amendment spin in circles.  But at the suppression hearing, the prosecution neglected to put on any evidence that the procedures for an inventory search occurred.  And then, there’s the telltale sign that no inventory was made.  But why let details like tailored testimony stand in the way of a search when it comes up with evidence of drugs.

The reversal, however, was not without its dissent. 

In a 4,300-word dissent, Justice James McGuire castigated the majority for cooking up objections to the search procedure that Gomez failed to raise himself. “The specific grounds upon which the majority relies are glaringly absent from counsel’s argument,” McGuire asserted. “By not raising these arguments at the hearing, defendant deprived the People of an opportunity to meet them with evidence.”

This is quite an interesting effort at salvaging the conviction.  While the burden of proof at a suppression hearing falls on the defendant’s shoulders, the burden of production belongs to the prosecution.  If they fail to produce, is it the duty of the defense to point it out to them so that they can try to find some way to fix the failure?  Why would the defense want to babysit the prosecution to aid in them in getting your client?

But moreover, this points to the ongoing problem with appellate obsession with preservation, which has come to trump the Constitution in the review of convictions. 

Justice John Caro, in his days on the Appellate Division bench, would have known better than to believe that a basic evidentiary search could be salvaged by calling it an inventory search.  He would never have bought into the fictions that cops use to skirt the law, because he knew how the game was played.  It’s unfortunate that his son, sitting on a different bench but with the authority to make similar decisions about the “fibs” told by police witnesses to get over the hump of the law, didn’t learn the lessons from his father that others did.

Man, I miss Justice John Caro.  He knew.