Orin Kerr over at the Volokh Conspiracy refers us to this recent D.C. Circuit decision in which U.S. Supreme Court nominee John G. Roberts, Jr. wrote a lively dissent and, in so doing, provides a glimpse of why he was one of my favorites for nomination to the Supreme Court.
The decision involves a search and seizure case. The defendant was driving a car with the license plate light out. After police stopped him, it turned out that he did not have a driver’s license on him, that his license had been suspended, and that the car had stolen tags. During the stop, the police could find not find anything that indicated that the car was properly registered. Thus, the police arrested the defendant and then they searched the car’s trunk, where they found a gun. Wallah! The defendant was charged with a gun possession crime and we now have a search and seizure case.

When the officers searched the trunk, was there a reasonable probability that there would be additional evidence in the trunk? That’s the search and seizure question being addressed in this particular decision. The majority opinion concludes that it’s unlikely that there would be additional evidence in the trunk of the crimes that the police knew about at the time of the search. Judge Roberts dissents, reasoning that the arresting officers had a reasonable basis upon which to conclude that the car was stolen and thus, the search was justified because evidence of the true owner could well have been in the trunk.
However, as Mr. Kerr notes, the most interesting aspect of the decision is Judge Roberts’ style. Non-combative but direct, he makes his essential point with a nice touch of understatement and pragmatism, while noting that the case was a close call:

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 . . .

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.

This is the work of a first rate appellate judge. Check it out.