Prof. Orin Kerr notes an interesting dissent in a criminal procedure case in which the Supreme Court denied certiorari, Pennsylvania v. Dunlap. It’s written by Chief Justice Roberts, joined by Justice Kennedy, and it is not notable for its legal reasoning or any particular insight it offers into the way that these two jurists think about the issue of probable cause. Rather, it suggests that Chief Justice Roberts, like so many of us in the legal profession, secretly craves the life of a novelist:
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.
The case involved a question of whether there was probable cause to arrest the dealer and the buyer; the Pennsylvania Supreme Court said no, and the other seven on the High Court apparently thought that even if the probable cause finding were reversed, there were other procedural errors along the way that would not alter the ultimate result of the case.
But it leaves me hungry for Devlin! 2: Bust At The Riverfront.
