Roberts Files Dissent in United States v. Jackson:
Judge John Roberts filed a dissent in a Fourth Amendment case today that is pretty interesting as an example of his style as a jurist. The case, United States v. Jackson, is very fact-specific: the only issue is whether the facts of a particular traffic stop amounted to probable cause to search the trunk of a car. Judges Judith Rogers and Harry Edwards, two of the more liberal judges on the D.C. Circuit, said no. Judge Roberts said yes.

  On the merits of the probable cause determination, my own sense is that this was a pretty close call. Based on current law, I think Roberts was probably right. At the same time, the doctrine calls for a judgment of probabilities, and reasonable people with different experiences can disagree.

  In this case, the defendant was driving a car with stolen tags and the license plate light out. He didn't have a driver's license on him, and his license was suspended. The police tried to find a registration for the car, but found no evidence the car was validly registered. The police arrested the defendant, and then — and here's the tricky part — they searched the trunk of the car, and found a gun. The defendant was then charged with a gun possession crime.

  The legal question is, at the time that the officers searched the trunk, was there a fair probability that there would be additional evidence in the trunk? In the majority opinion, Judge Rogers says no — it's just pretty unlikely that there would be additional evidence of the crimes the police knew about at the time of the search. Judge Edwards concurs, offering his own sense of the low likelihood that there would be evidence in the trunk, and adding in some rather grand rhetoric about the importance of upholding the Fourth Amendment.

  In his dissent, Judge Roberts argues that the common sense of the facts created a fair probability that some kind of evidence would be in the trunk of the car. The situation at the traffic stop was pretty darn suspicious, he notes, suspicious enough that there was a pretty good chance evidence of crime would be in the trunk. The officers had pretty good reason to believe the car was stolen, for example — it was, as it turns out — and if it was, some kind of evidence of who owned the car and who had stolen it would probably be in the trunk. Given the facts of the situation, the officers were justified in looking there.

  What is particularly interesting about Roberts' dissent is its style. He uses a number of techniques to emphasize that this is a fact-bound common-sense inquiry, not a question of high theory. For example, at one point he uses humor to break through the formal reasoning and draw attention to the common sense of the situation:
Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.
  He makes much the same point through a citation to Holmes:
The majority doubts the rationale for replacing a stolen vehicle’s real tags with stolen tags and therefore discounts the inference that the car might have been stolen. Op. at 10. But lawyers learn early on that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Officer Garboe’s history with stolen tags had confirmed that they, more often than not, led to real tags in the trunk. The reported cases confirm that criminals often use stolen tags on stolen cars. This history is enough to support the officers’ inferring from the stolen tags and the lack of any registration (current or expired) linking Jackson to the car that the car might well have been stolen.
  Finally, Roberts goes out of his way to express his view that the right answer in the case should derive from a straightforward lawyerly question of applying law to the facts, not of a general commitment to the Bill of Rights or of helping the police fight crime. Here is how he responds to the rhetorical passages in Judge Edwards' concurrence:
  I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. See Conc. Op. at 1, 5. But sentiments do not decide cases; facts and the law do. There is no dispute here on the law: if the officers had probable cause, they did not need a warrant; if they did not have probable cause, no warrant would issue in any event. As for the facts, the officers encountered at 1:00 a.m. an unlicensed driver operating an unregistered car with a broken tag light and stolen tags. The experienced district court judge concluded — and I agree — that "the circumstances were suspicious enough to amount to probable cause to search the trunk." Memorandum Order, at 5. Right or wrong, nothing about that determination reflected insensitivity to constitutional values, any more than a contrary determination would have reflected insensitivity to the needs of law enforcement.
  I respectfully dissent.
  A nice touch, I think. Thanks to Howard for the link. (Oh, and it may be worth pointing out that the case was argued in April, and Roberts has been sort of busy recently, so the chances are very high that he wrote this dissent long before he was nominated.)

  UPDATE: One more notable aspect of the opinion is the paragraph criticizing Judge Rogers for discussing what the police should have done to get probable cause. It's a very Harlan-Bickel-Legal Process point about not wanting judges to go beyond the facts and law of the case. He writes:
  Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) ("creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished" (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.