PROBABLE CAUSE FOR REJECTING JUDGE SONIA SOTOMAYOR
(Sotomayor was then on the Clinton Administration's fast track toward the Supreme Court.)
On July 1, 1992, Nelson Castellanos was arrested in New York City outside his apartment in Harlem and charged with conspiracy to distribute cocaine. He was holding the keys to his apartment and a white shopping bag containing about $10,000, mostly in $1 and $20 bills.
That evening, pursuant to a warrant, federal Drag Enforcement Agency (DEA) personnel searched his apartment and found over 1,200 grams of cocaine, six live rounds of ammunition, a .44 caliber revolver and incriminating notebooks. All this evidence was thrown out by District Court Judge Sonia Sotomayor on the grounds that the DEA agents had not provided the magistrate with probable cause to search Castellanos's apartment.
Sotomayor ordered the evidence excluded in United States v. Castellanos because she claimed a DEA agent had exaggerated his reasons for supposing he would find drags in the apartment. On a few laughably minor points, Sotomayor found that the agent's statements in the warrant request were contradicted by the (apparently) more reliable statements of a convicted criminal who had been operating undercover for the DEA.
The "troubling" and "disturbing" inconsistencies consisted of such points as: The informant said he had not identified one of Castellanos's drug mules by name, the agent said he had; the informant said that, since turning informant, he had seen Castellanos only "going toward the door" of the apartment, but not--as the agent had claimed--that he had seen Castellanos place the keys in the keyhole of the apartment; and finally, the criminal/informant refused to pin down the date on which Castellanos approached the apartment during a particular drug buy. Suppose the agent was wrong, even deliberately wrong, and the informant had not, for example, identified Castellanos's mule by name.
The Supreme Court has explicitly held that, despite some errors, "if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant [i]s nevertheless valid." There was surely sufficient "probable cause" to search Castellanos's apartment, even if each of the informant's claims are to be credited. Castellanos had, after all, just been arrested with about $10,000 in small bills outside the apartment where the beacon-of-truth informant had already admittedly bought drugs from Castellanos "on numerous occasions."
Willfully Pro-Criminal
Few people would have been surprised when a search of Castellanos's apartment turned up a drug cache. Castellanos had been the focus of a lengthy DEA investigation first begun after anonymous letters arrived at the local police precinct alerting the police to Castellanos's drug-dealing. One of Castellanos's customers became a police informant and continued to buy drugs from Castellanos for more than six months. Some of these negotiations had been caught on audio and video tape by the DEA.
And, of course, drugs were found in Castellanos's apartment. It is true that evidence must be excluded and criminals set free when cops actually lie about probable cause in search warrant applications, or fail to obtain a search warrant at all--even if the search produces criminal evidence. But when the validity of the warrant turns on contradictory statements of the investigators, the fact that drugs were found in the searched apartment would seem to support the credibility of the guy who said there was probable cause that drugs would be found. To be crediting the claims of a criminal/informant after drugs were in fact found in the search, seems willfully pro-criminal.
Remarks made by Judge Sotomayor during the sentencing of various drug dealers do little to dispel that impression.
Judge Sotomayor said this to a noncitizen drug-dealer, who had just pleaded guilty to drug-dealing: "[I]t is in some respects a great tragedy for our country that instead of permitting you to serve a lesser sentence and rejoin your family at an earlier time I am required by law to give you the statutory minimum. ... [W]e all understand that you were in part a victim of the economic necessities of our society, unfortunately there are laws that I must impose."
In sentencing Louis Gomez, who also pleaded guilty to dealing cocaine, Sotomayor said, "Louis Gomez, yours is the tragedy of our laws and the greatest one that I know. ... the one our congressmen never thought about and don't think about. ...
"It is no comfort to you for me to say that I am deeply, personally sorry about the sentence that I must impose, because the law requires me to do so. The only statement I can make is this is one more example of an abomination being committed before our sight. You do not deserve this, sir."
Sotomayor (circa 1997) is now awaiting confirmation to the federal Court of Appeals for the 2nd Circuit. President Clinton and Sen. Patrick Leahy (D.-Vt.) last week succeeded in pressuring Senate Judiciary Chairman Orrin Hatch (R.-Utah) to move her hearing up a week, leaving ambushed Republican senators on the committee flailing about with little ammunition. It is assumed her next nomination will be to the Supreme Court--since she "looks like America."
A few more Senate confirmations of judges like Sonia Sotomayor and America will look like the inside of a Mexican prison.
Thanks for posting SS’s remarks.
ping