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Tuesday, October 14, 2008

A Dissenting Opinion on the Chief Justice's "Noir" Moment

I decided to make a momentary re-appearance in blog-land because I've been a bit perturbed by the various blog coverage of the Chief Justice's dissent from the denial of certiorari today in Pennsylvania v. Dunlap.  Everyone's obsessed with the creativity of the film-noir (or Dragnet-style) opening to the dissent, with a substantial amount of praise for the Chief Justice for doing something original (what does _that_ say about the predictability of Supreme Court opinions that we go nuts for anything remotely different?).

I want to raise one note of dissent from the praise. It's not that I don't think it's clever and fun to read--like most of the Chief Justice's writing, it is clear and to the point. It's that I think the opinion, especially the opening stanza, is to some degree contemptuous of both the defendant and the state courts...

  • Maybe it's that I'm bothered by the whole idea that the Court's probable cause jurisprudence cares what neighborhood you live in--should the same transaction among sketchy-looking characters have different legal consequences in Northwest DC than in Southeast?
  • Maybe it's that the Chief Justice seems to suggest, however implicitly, that all criminal procedure is like Dragnet (and how many times were _those_ searches thrown out by the courts)? That there is an obviousness to what the police officer saw, and that obviousness = probable cause (as opposed to reasonable suspicion, which may well have been present here). Does probable cause really arise from every commercial transaction on a street corner where the product sold might be drugs? Really?
  • Maybe it's that the Chief Justice suggests this is so obvious when the state supreme courts--as he himself notes--have so bitterly divided on the issue.

I'm not sure--and I'm no literary critic. But something about the opinion just rubbed me the wrong way... am I crazy?

Posted by Steve Vladeck on October 14, 2008 at 07:35 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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Tracked on Oct 15, 2008 6:44:34 AM

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I find it interesting that CJ Roberts seems to think every case is the same -- the opening reads like a cliched noir novel because he seems to think the facts of the case are a cliche. Perhaps to someone who has only ever been an appellate judge (and law firm lawyer and appellate government lawyer) that seems true, but I would expect that most district courts and criminal attorneys think differently. Has CJ Roberts ever even heard testimony from a police officer about why the officer believed there to be PC? Has he ever seen an officer cross-examined about that belief? It's no wonder the facts feel cliched -- that would seem to be almost inevitable when the facts are always presented in writing (like a noir novel featuring characters) rather than in person (like real life, featuring real people).

Posted by: Lindsay | Oct 14, 2008 7:47:19 PM

Not at all. While kvelling over the style, it appears that few noticed that his flippant take conceals a particularly troubling notion, that cops arresting based on mere hunches (even with the CJ's wink of approval) isn't really that cute. I planned on dealing with it tomorrow.

Posted by: shg | Oct 14, 2008 7:57:36 PM

I think it's fair to object to the cutesy language. But I think he's clearly correct on the law.

Posted by: Orin Kerr | Oct 15, 2008 3:01:28 AM

I like the dissent and the tone is pretty funny, but I disagree with him putting in his dissent that he would grant cert AND overturn the PA court. Granting cert is one thing, but having his mind made up before listening to arguments is completely unacceptable - and even if he has his mind made up, he shouldn't announce it to the world. Isn't he supposed to reason on the arguments of counsel?

Posted by: KS | Oct 15, 2008 2:05:26 PM

Thanks, Professor Vladeck,
This piece, which I posted earlier today on Constitutional Accountability Center's Text and History blog www.textandhistory.com, echoes many or your observations. Best, Doug Kendall.

http://theusconstitution.org/blog.history/?p=433

Chief Justice Roberts and noir, it’s a bad genre

Chief Justice John Roberts is enjoying a ton of favorable publicity today for his channeling of Raymond Chandler in the first two paragraphs of a dissent yesterday from a Supreme Court decision not to review a ruling by the Pennsylvania Supreme Court in Pennsylvania v. Dunlap:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover 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.

While we’ve long been fans of the Chief’s writing flair, Roberts’ opinion is entirely predictable. He’s a law and order conservative who wants the courts to get out of the business of second-guessing the decisions made by police officers. Roberts argues that the police have “probable cause” under the Fourth Amendment to make an arrest whenever they see a “hand-to-hand” transaction in a high-crime area and asserts that “the Pennsylvania Supreme Court’s decision will make it more difficult for the police to conduct drug interdiction in high-crime areas, unless they employ the riskier practice of having undercover officers actually make a purchase or sale of drugs.”

Like in his Sprint v. APCC Services opinion last term, where Roberts cited Bob Dylan in support of a strained argument for limiting access to courts, Roberts is using rhetorical flourish to make the conservative goals of limiting constitutional protections and court access seem “cool.” Count us as unmoved.

Posted by: Doug Kendall | Oct 15, 2008 2:22:34 PM

I agree with you completely. The tone is flippant and condescending, suggesting a lack of respect for the defendant, the state courts, and the seriousness of the issue.

Posted by: ra | Oct 15, 2008 5:14:31 PM

"[T]he Court's probable cause jurisprudence cares what neighborhood you live in."

That's glib. The "jurisprudence" doesn't care, not that it could if it tried. The jurisprudence allows law enforcement to factor in their own experience when determining the probability a crime has been committed. Naturally, this includes the officer's experience in a particular neighborhood. Crime-ridden neighborhoods, by definition, have more crime. Officers are allowed to incorporate their experiences within these neighborhoods when determining if a particular transaction involves contraband.

Posted by: Aaron Williams | Oct 16, 2008 12:13:53 AM

Lighten up, Francis. It's a dissent from a cert. denial. Sheesh.

Posted by: Rick | Oct 16, 2008 12:49:49 PM

The *real* serious issue here, mentioned by no one, is drug addiction. Maybe if the CJ had channeled William Burroughs instead of Raymond Chandler it would have been more to the everyone's liking. Seriously, though, according to Burrough's concept of the drug pyramid, "If we wish to annihilate the junk pyramid, we must start with the bottom of the pyramid: the Addict in the Street, and stop tilting quixotically for the 'higher ups' so called, all of whom are immediately replaceable." And perhaps someday, after treatment, Mr. Dunlap will end up thanking Officer Devlin.

Posted by: johnny the boy | Oct 21, 2008 2:03:16 PM

Johnny the Boy: Will Dunlap get meaningful treatment in prison? Is it necessary to imprison him?

Posted by: Brian J. Foley | Feb 17, 2009 11:08:04 PM

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