Monday, January 14, 2019
The passing of Judge Patricia Wald brings back some reflections on events that took place 45 years ago.
My time as a student at Georgetown Law (1971-74) was a period of extraordinary opportunities in the legal profession.
The education provided a vehicle to engage with the issues of the times. My own stint as a research assistant for the Senate Watergate Committee gave me the chance to witness the testimony of John Dean and Alexander Butterfield and set my path on the course that led me back to Georgetown.
Of course, the opportunities could lead to a different destination as my first year section mate Paul Manafort can attest.
My first mentor in the law was Larry Schwartz, an adjunct professor who taught me Juvenile Justice. At the end of the first class, he asked if anyone was driving to Chevy Chase. As I was living at home, I was.
I drove Larry home after each class. He was the first professor I got a chance to know, wrote my first job recommendations and encouraged me to pursue criminal defense.
He introduced me to his then-colleague at the Mental Health Law Project Patricia Wald when I was a student editor for the (then brand new) American Criminal Law Review.
I edited this article for them
A Symposium: Juveniles and the Law American Criminal Law Review, Vol. 12, Issue 1 (Summer 1974), pp. 125-164 Wald, Patricia M. (Cited 2530 times); Schwartz, Lawrence H. (Cited 15 times) 12 Am. Crim. L. Rev. 125 (1974-1975)
They also encouraged me to write a publish a case note in the ACLR on this decision.
I later was (if fading memory serves) the first law clerk for Larry's firm Stiller Adler & Schwartz.
Of course, Judge Wald went on to a distinguished career on the appellate bench which is detailed elsewhere.
I fondly remember her gentle encouragement of my efforts and the time that I was privileged to work for her.
One great disappointment was her opinion in United States v. Orson White ruling against my client's Fourth Amendment contention.
Close cases involving the exclusionary rule present difficult issues for courts as well as law enforcement officials. This close case presents the question of whether narcotics squad officers acting on an anonymous tip "unreasonably" made an investigatory stop which culminated in an arrest and seizure of narcotics so as to violate the defendants' Fourth Amendment rights and require suppression of the narcotics. The trial court denied the suppression motion and we affirm its decision.
Circuit Judge Harry Edwards dissented
Pared to its essential facts, this case involves two police officers who, acting solely on an anonymous tip, blocked the appellants' car, approached the appellants with guns drawn, and ordered them out of their automobile at gunpoint. The police officers acted without probable cause; they acted without having observed any suspicious circumstances; and they acted without having any reliable information about the appellants, who were unknown to them. The police officers never had specific reasons to fear for their safety: they observed nothing that would indicate potential violence; the tipster had said nothing about weapons; the appellants were not suspected of committing any violent crime; the appellants were in plain view of the officers at all times; and the appellants never attempted to flee. Despite this, the officers asked no questions of the appellants before ordering them to get out of their car at gunpoint.
This case arose in the inner-city of Washington, D. C. One wonders whether police officers, acting on an anonymous tip, would accost well-to-do residents in one of the affluent suburbs near Washington (where drug peddling is known to be prevalent), in the same manner that they accosted the appellants here. It is doubtful.
The United States Supreme Court gave us 3 votes for certiorari with a published dissent from the denial by Justice White.
Two Terms previous, I dissented from a denial of certiorari that left the state and lower federal courts in conflict and confusion over whether an anonymous tip may furnish reasonable suspicion for an investigatory detention. Jernigan v. Louisiana, 446 U.S. 958d 816 (1980). Because it remains apparent that this difficult issue of everyday importance to law enforcement officials and citizens on the street alike requires resolution here, I am again moved to note my dissent.
Justices Brennan and Marshall joined. (Mike Frisch)