When Cy Vance became the first new District Attorney in New York County in a millennium, a change of guard was inevitable. One fixture at risk was the Chief of Appeals (and SJ reader), Mark Dwyer, one of the smartest guys to ever grace Hogan Place. When the changing of the guards took place, I wondered what would become of Mark. By accident of Legal Blog Watch’s Eric Lipman, the answer appeared.
Governor Paterson, in a fit of thoughtfulness, appointed Mark Dwyer to the Court of Claims, and he’s been assigned as an Acting Supreme Court Justice in Kings County. ADA Dwyer is now Justice Dwyer.
Before anyone indulges in the knee-jerk prosecutor-to-judge-pipeline reaction, consider Justice Dwyer’s decision in People v. Abdul-Akim, suppressing the stop, search and seizure of a handgun and body armor, In this extremely thorough decision, Justice Dwyer went through the entirety of the interaction, noting at each level where the police conduct failed to comport with constitutional mandates.
The police must be alert to possible violence and must safeguard the community from criminal activity. But crime prevention may not be effected at the expense of disregarding the constitutional requirement that citizens be free of unreasonable searches and seizures.
Of course, fine statements like this are one thing. Backing them up with the goods is another.
Justice Dwyer initially held the the police arrest of the defendant for mistakenly believing that the driver possessed only a Virginia learner’s permit rather than a temporary license was unreasonable, finding that
In short, in view of the “driver’s license” notation on the Virginia document, it was unreasonable for the police to conclude that defendant Ayala was not a licensed driver. All the evidence corroborated the conclusion that the document was a license, not a learner’s permit.
This is the “nobody could be that stupid” part of the decision, in which the court holds that if the “Temporary Driving Permit” says “driver’s license” rather than “learner’s permit,” that means it’s a driver’s license rather than a learner’s permit. The “texting” excuse similarly falls, since it wasn’t unlawful at the time of the arrest. But then comes a very interesting nuanced aspect of the decision, where Justice Dwyer rejected the reasonableness of using the purported cellphone/learner’s permit excuse to justify a full custodial arrest, and subsequent inventory search:
A custodial arrest may not be employed as a pretext to conduct a search. True, an objectively reasonable traffic stop is not invalidated because the primary motivation of the police was to investigate some other matter (see Whren v United States, 517 US 806 ; People v. Robinson, 97 NY2d 341. However, the scope, duration and intensity of a seizure, and any subsequent search, “remain subject to the strictures of article I, §12, and judicial review” (People v Troiano, 35 NY2d 476 ; People v Marsh, 20 NY2d 98 ). A custodial arrest and impoundment for using the cell phone was not called for under the circumstances in this case.
To anyone offended by the Whren decision, approving pretext stops, this portion of the decision offers a fascinating counterpoint, that while the pretext stop may be authorized, that doesn’t necessarily mean that a pretext search follows, a critical distinction and one that serves to return sanity and integrity to constitutional doctrine.
Ironically, when Eric Lipman brought this decision to my attention, it was part of his snarky approach, reflected in his opening paragraph at LBW :
If you find yourself riding with a couple of your buddies around the Brooklyn neighborhood where your brother was recently murdered, wearing a bulletproof vest, with a loaded handgun in the glove compartment, well, I’m comfortable calling you a “bad guy.”
Not that it would occur to Eric that maybe the defendant feared he would be harmed by whoever killed his brother and had a weapon and vest for his own protection, but the whole constitutionality thing doesn’t seem to affect his comfort level in the slightest. And Eric Lipman was never a prosecutor (though he was an associate at Cahill Gordon). What does that tell you?
It would have been a terrible waste for someone with the experience of Mark Dwyer to end up in some Biglaw firm drawing millions in salary, as if money was something that might interest for him anyway. But for anyone who thinks that a career prosecutor can’t make a good judge, I’ll take a brilliant mind and an honest man on the bench any day.
Congratulations, Justice Mark Dwyer. It’s funny how people end up where they can do the most good.