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Interesting Dissent from Denial of Certiorari,
handed down today in Pennsylvania v. Dunlap, by Chief Justice Roberts and joined by Justice Kennedy. It begins:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Under­ cover surveillance. The neighborhood? Tough as a three­ dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.
* * *
That was not good enough for the Pennsylvania Supreme Court, which held in a divided decision that the police lacked probable cause to arrest the defendant. The Court concluded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not at­ tempt to flee. 941 A. 2d 671, 679 (2007). I disagree with that conclusion, and dissent from the denial of certiorari.
Roberts. Kennedy. Correct on the law? You betcha. Just error correction though. Two votes less than four. No dice.

Related Posts (on one page):

  1. Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:
  2. Interesting Dissent from Denial of Certiorari,
csm:
I like the part about the steak.
10.14.2008 4:04pm
Mike& (mail):
Joe Friday, out.
10.14.2008 4:05pm
paul lukasiak (mail):
I'm not sure how I feel about supreme court opinions presented as "dime store detective novels" -- but since it was merely a dissent, I guess its okay.
10.14.2008 4:10pm
Happyshooter:
Now that is effective sarcasm.
10.14.2008 4:27pm
Brian G (mail) (www):
And everyone wonders why North Philly is a crime-infested hell-hole? I grew up in some of the meanest streets of South Philly and I seen what was described here every single day growing up. I knew before I was 10 years old that these were drug deals going. Of course, the police know it as well. Yet, the liberal judges just let these guys go again and again.

Thomas Sowell once wrote a column about this. He talked about how these criminals aren't getting released and going to back to the judges' neighborhoods to live. Sowell was so right. These liberal judges think they are standing up for civil rights, when all they are doing is keeping places like North Philly scum-infested.

Perhaps those Pennsylvania Supreme Court justices need to live a few weeks on Lehigh Avenue.
10.14.2008 4:31pm
Ben P:

Yet, the liberal judges just let these guys go again and again.


Perhaps you want to pay for their room and board for the next 12-18 years?

In my experience and study most cases don't get overturned on constitutional grounds. But the vast majority of cases DO plead out and the criminals get lighter sentences and are then let out ahead of time because of overcrowding.

The few cases that get out on constitutional grounds aren't supporting a crime wave.
10.14.2008 4:40pm
Michael Drake (mail) (www):
It's a topsy-turvy world, and maybe the objections of two Justices don't amount to a hill of beans. But this is our hill. And these are our beans.
10.14.2008 4:48pm
wooga:
"The few cases that get out on constitutional grounds aren't supporting a crime wave."

Cops in Philly will no longer arrest you doing a drug deal, provided you remain calm (don't flee) and keep the drugs concealed in something like a brown paper bag.

Seems like this will make it very easy to be a drug dealer in Philly.
10.14.2008 5:05pm
Alex Blackwell (mail):
I like it. The only things missing are an accompanying .wav file of the Dragnet theme and the obligatory (paraphrased) opening line: "[T]he story you are about to [read] is true; the names have not been changed to protect the innocent."
10.14.2008 5:05pm
Per Son:
This is great. You can call it Supreme Court decision noir
10.14.2008 5:08pm
DiverDan (mail):
Ok, I didn't read the Petition or reply briefs, or review the record. But can anyone explain why they couldn't get 5 votes for a GVR on this one? They took the time to review the Petition &reply - when clear error is apparent (as appears to be the case here) "just error correction" through a GVR ought to be a no-brainer.
10.14.2008 5:10pm
Conrad Bibby (mail):
"Perhaps you want to pay for their room and board for the next 12-18 years?"

What's your point? Are you saying we shouldn't arrest anybody?

Unless I'm mistaken, the idea behind incarceration is deterrence. Pay for 12-18 years of room and board for one guy and hopefully, in addition to getting him off the street, you deter 10 other would-be criminals from committing the same crime.

In a similar vein, if you let one guy go "on Constitutional grounds" or through excessive plea bargaining or for whatever other reason, you reduce the deterrent effect of the law being enforced.

I'm not arguing perps should never be allowed to walk. Our Constitution occasionally demands it. But to pretend there is no relationship between letting perps go free and the incidence of crime is ridiculous.
10.14.2008 5:19pm
SeaDrive:
I don't think anyone is suggesting that the perp be allowed to continue in business. They are suggesting that the cops have to work a little harder to make the case. Perhaps it would suffice to observe a series of transactions. Maybe you need to have an undercover officer make the buy.
10.14.2008 5:53pm
A.S.:
What I want to know is - did the clerk write it this way? Or did Roberts write this himself?
10.14.2008 5:53pm
Franklin Drackman:
Wasn't this the beginning of a Dirty Harry Movie?? Sudden Impact I think.
10.14.2008 5:55pm
David Warner:
A case where a leftist could plausibly argue for more law and order.
10.14.2008 5:55pm
OrinKerr:
DiverDan,

See Justice Scalia's dissent in Youngblood for the likely answer.
10.14.2008 6:00pm
badger (mail):
Conrad:

The point of incarceration is specifically to prevent someone from causing a social harm. The deterrence aspect of it is typically secondary. As far as deterrence goes, fines and requirements of community service both provide some deterrence and actually benefit society, rather than creating an obligation (i.e. three hot meals, guards, walls, etc).

So, it's hardly bizarre to ask if putting people in jail for committing nonviolent offenses is really the best investment of our resources.
10.14.2008 6:05pm
john dickinson (mail):
This makes me want to give GWB a big fat bear hug.
10.14.2008 6:16pm
iphone98:
the war on drugs, insofar as it seems that it cannot be prosecuted without such dubious arrests, seems to me more and more to be incompatible with the privacy granted by the fourth.
10.14.2008 7:08pm
DiverDan (mail):
OK, I understand why Scalia would not want to GVR - but the case certainly seems to fit the criteria under Rule 10(c) for being Cert-worthy, in that a State Court has decided an important federal question in a manner which conflicts with Supreme Court precedent (i.e., Brady). If the Court won't use the GVR in cases where there is clear error, there is really nothing stopping State Courts from simply ignoring controlling Supreme Court precedent (as the PA Supreme Court quite apparently did here - the majority simply refused to address the Brady Claim.)
10.14.2008 7:10pm
JB:
Better this than require undercover officers to actually buy. Undercover buying, and the associated setting up and disposing of transactions, is the largest single source of corruption in the drug war.
10.14.2008 7:41pm
Oren:
JB, that's a fairly classic false dichotomy -- what makes you think it's either/or.
10.14.2008 8:36pm
Sean M:
DiverDan,

Wouldn't this be a summary reversal as opposed to a GVR?

GVR's are grant, vacate, and remand for consideration in light of ...

A summary reversal would be a decision on the merits contrary to the decision reached in this case.
10.14.2008 8:38pm
John P. Lawyer (mail):
This opening paragraph was terrible. I am not a fan of overly formal opinions, but this opening paragraph was poorly written, not clever (though the writer and(?) CJ apparently thought it was), and certainly not entertaining. Perhaps the CJ was being snarky as usual (a common trait in his opinions)? Perhaps the CJ is channeling his inner Kozinski? Who knows? But I just don't get the point of this paragraph. Orin is right, of course, the PA Supreme Court got this one wrong as a matter of 4A law.
10.14.2008 10:18pm
William D. Tanksley, Jr:
badger said:
The point of incarceration is specifically to prevent someone from causing a social harm.


Strongly disagree. Incarceration comes after the social harm, so that can't be the primary point. The classical primary point is to punish the malefactor. Making anything else the primary point rewards injustice.

If you seek mainly to stop future harm, you will imprison everyone. If you seek mainly to deter, you will frame the innocent (it's easier).
10.14.2008 10:49pm
Oren:
I think it's silly to think that anyone in the US (or civilization in general) can agree on whether Justice is or ought to be (or in what fractions) deterrant, retributive or palliative.
10.14.2008 10:58pm
Anon Philly ADA:
I argue Dunlap motions every couple of days, so although I don't have any notes on style, I thought I'd share a few thoughts for some of the commenters above.

First, Dunlap probably doesn't let alot of drug dealers go free. It lets alot of drug users go free. Our office refers to Dunlap motions as "first buyer motions" because it's pretty difficult to get the first buyer convicted. The second and third and fourth buyers are no problem, and neither is the dealer if there are several observed sales. Usually the cops will wait around for a couple of observed sales anyway (or will use a confidential informant, not an undercover officer, over a period of time), or will get some other evidence of dealing (scales, large amounts of cash) through a search warrant.

The follow-up to that is that no one's getting or not getting 12-18 years in most Dunlap-related cases. Most drug users get probation in Philly, and actually, so do some drug dealers (i.e., first-time marijuana dealers) because the system's so crowded and also because we have elected judges who are somewhat pro-defense on the average.

Finally, it should be noted (and I don't know whether or not this has anything to do with the denial of cert) that the PA state constitution gives significantly broader privacy protections than the US constitution does. For instance, PA doesn't recognize the automobile exception, and requires search warrants for pen registers, among other things. So it really may be up to the PA Supreme Court to change this one. The makeup of the PA Supreme Court has changed since Dunlap and it's possible that they'll reverse the decision themselves when the right case is brought up on appeal. Or at least that's what we're all hoping for. Until then, don't worry, we'll keep trying to put away the bad guys.
10.14.2008 11:06pm
OrinKerr:

This opening paragraph was terrible. I am not a fan of overly formal opinions, but this opening paragraph was poorly written, not clever (though the writer and(?) CJ apparently thought it was), and certainly not entertaining. Perhaps the CJ was being snarky as usual (a common trait in his opinions)? Perhaps the CJ is channeling his inner Kozinski? Who knows? But I just don't get the point of this paragraph.
If the purpose of Supreme Court error correction is to encourage lower courts to follow the law -- on the theory that a reversal is embararrasing, and may induce the judges to be more careful and less willful -- then a dissent from denial of certiorari that is widely publicized can achieve the same effect. That "cute" first paragraph led to a lot of media attention today: bloggers and the MSM have covered it as if it was a majority opinion. While I can't be sure why JGR wrote it that way, if the goal was to write it that way to get attention and make the point, it was certainly effective.
10.15.2008 12:29am
William D. Tanksley, Jr:
I think it's silly to think that anyone in the US (or civilization in general) can agree on whether Justice is or ought to be (or in what fractions) deterrant, retributive or palliative.


I disagree.
10.15.2008 1:21am
Oren:

I disagree.

Because you can tell me with certitude that our justice is retributive and not at all deterrent or remedial?

How would one even begin to make such a claim?
10.15.2008 1:08pm
David Warner:
Oren,

"How would one even begin to make such a claim?"

The way he did. Is there a flaw in his reasoning? I imagine that there is, but I think he's more interested in your own thoughts.
10.15.2008 2:34pm
Oren:
David, my point is that the 3 models of justice are so thoroughly intertwined that we cannot tease apart their respective influences.
10.15.2008 6:09pm
Opher Banarie (mail) (www):
Mickey Spillane would be proud.
10.15.2008 7:47pm
Hoosier:
Next I want him to write a para in the style of Gertrude Stein.

"Cert should be granted by the granting the granting of cert of cert of cert of cert. Certain. Certainly certain cert . . ."
10.16.2008 12:04am