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Saturday, July 23, 2005

Judge Roberts decision

On Friday, a panel of the DC Circuit issued an opinion in US v. Tarry, a 4th amendment case. Judge Roberts dissented from the panel opinion of Judge Rogers, joined by Harry Edwards. The case presents the question of whether probable cause existed for police officers to search the trunk of Mr. Tarry after they stopped him for a broken backlight, and subsequently determined that the license plates affixed to the car were stolen. The majority found the officers proferred reasons for searching Mr. Tarry's trunk - which led them to find a loaded weapon - was not believable and that probable cause did not exist. As to the merits, it seems far-fetched to believe that no probable cause existed to believe that a search of the trunk would have revealed evidence of a crime. At the very least, the cars actual license plate tags could have been found in the trunk. Furthermore, the police had at least a reasonable basis for thinking the actual car to be stolen, since its plates were fake and altered, and Mr. Tarry had attempted to obscure the plates by breaking the tag light. Under such circumstances, probable cause is established and the trunk may be subject to search.

As they always seem to do, 4th Amendment cases invoke a difficult tension between the rights of citizens to be free from unreasonable searches and the deference owed to law enforcement personnel on the ground. Judge Roberts' dissenting opinion is interesting for the deference it pays to law enforcement (in the mold of Rehnquist), and for his understanding of the proper role of the judiciary in such cases. Judge Roberts seems willing to grant broad deference to the officers' on-the-ground judgments and experiences. He places a great deal of emphasis in his opinion on the testimony of one officer who stated that 6-7 out of 10 times he had stopped a car and determined that tags were stolen, the real tags were found in the trunk. This testimony alone is almost enough to Roberts to establish probable cause for a search. And Roberts also seems worried about the panel opinion's suggestions as to what the officers could have done further to investigate and corroborate their suspicions:
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.

The Tarry opinion thus stands as a good example of the substantive conservatism of Judge Roberts, but, perhaps even more, of the measured and restrained approach to judging. He recognizes the deeply important value of being free from unreasonable searches, but he also is keenly aware of the difficulties law enforcement officers face on the ground. His approach would provide greater deference to these law enforcement personnel, in part because he thinks judges cannot post hoc adequately understand the situation in which the officers found themselves. Furthermore, Judge Roberts also expresses a view that judges are not all-powerful, and are limited in their abilities and understandings. Perhaps this suggests an ultimate unwillingness in some cases to bring the full weight of his opinion to bear (see Roper v. Simmons) when all that stands behind it is his own opinion. As Judge Roberts eloquently puts it: "I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment's place among our most prized freedoms. But sentiments do not decide cases; facts and the law do."

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