Carlos R. Moreno

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Carlos R. Moreno in California

Carlos R. Moreno Biography

By Gerald F. Uelmen. He is a professor at Santa Clara University School of Law. Luci Buda, Class of 2012, compiled the data for this article.

After ten years on the court, Justice Moreno left in a blaze of glory, authoring what I thought was the best opinion of the year, and dissenting in what I thought were the two worst decisions of the year. In Pineda v. Williams-Sonoma Stores Inc. (51 Cal. 4th 524 (2011)), he wrote for a unanimous court in ruling that the state’s Song-Beverly Credit Card Act prohibits merchants from requesting and recording a credit card customer’s ZIP code.

In two separate cases, Division One of the Fourth District Court of Appeal had unanimously concluded that a ZIP code alone does not constitute personal identification information, allowing defendant merchants to record customers’ ZIP codes in a database used for marketing. In its independent review of statutory construction, the supreme court construed the Song-Beverly Act broadly and in so doing addressed the misuse of personal identification information for marketing purposes. Though merchants are free to demand identification from credit card users, they are not permitted to record data gleaned from the identification presented. (You still have to enter a ZIP code to use your credit card to purchase gasoline at the pump-but that’s to verify you are the authorized user of the card, and the information is not recorded for use in marketing.)

Justice Moreno also authored one of the best dissents of the year in protesting the majority’s ruling in Moore v. Superior Court (50 Cal. 4th 802 (2010)), which held that due process does not require that someone facing confinement as a sexually violent predator (SVP) be competent to understand the proceedings. It is fascinating to compare Moreno’s application of the four-part balancing test of People v. Allen (44 Cal. 4th 843 (2008)) with the application of that same standard in Justice Baxter’s majority opinion. If one begins with the premise that requiring competency would endanger public safety and render the whole SVP scheme unworkable, it really skews the balance. Moreno, joined by Justice Kennard, adeptly exposes the flaws in the majority’s premise.

Justice Moreno also joined the magnificent dissenting opinion of Justice Werdegar in People v. Diaz (51 Cal. 4th 84 (2011)). The majority opinion, by Justice Chin, permits police to probe the text messages on a cell phone seized at the time of a defendant’s arrest at their leisure, without a search warrant. Werdegar – recognizing that the search of data stored on a contemporary smartphone or handheld computer presents a massive intrusion into reasonable expectations of privacy – would require a warrant for such a search. Justice Kennard, in concurring with the majority, concludes that directly applicable U.S. Supreme Court precedents compel rejection of the claim that a warrant is needed. But Werdegar cited high court precedent to suggest that stare decisis should not be used “to justify the continuance of an unconstitutional police practice … in a case that is so easily distinguished from the decisions that arguably compel it.” (51 Cal. 4th at 120, citing Arizona v. Gant, 129 S. Ct. 1710, 1722 (2009).)

A bill pending in the Legislature (SB 914) would require a warrant to search a smartphone, but even if enacted it would not provide an exclusionary remedy.

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