Bench Memos

NRO’s home for judicial news and analysis.

Re: Roberts in Action


More on the case Shannen discusses.

Here’s a tough test: Let’s say that you were a police officer and at 1:00 a.m. you spot a car without a functioning light for its license plate. You pull the car over and conduct a records check, which indicates that the car’s temporary license tags had been reported stolen. You also discover that those tags had been altered to match the car. The car’s driver can’t produce the car’s registration or a driver’s license. A check of the vehicle identification number indicates that the car had once been registered in Virginia but is no longer registered there.

Might it be reasonable to think that the car might have been stolen? Not according to the two Democrat appointees in the opinion issued by the D.C. Circuit today in United States v. Jackson. But yes, in Judge Roberts’s view in dissent.

Next question: Might it be reasonable to think that the car’s trunk might contain some evidence—the car’s real tags, items identifying or belonging to the real owner, or tools used in car theft—that the car was stolen? Let’s say, further, that you had run across stolen tags on ten previous occasions and that on six or seven of those occasions the vehicle’s real tags were found in the trunk. Is it reasonable to check the trunk? Again, not according to the two Democrat appointees. But yes, according to Judge Roberts’s dissent.

My favorite part of the majority opinion is the assertion that real tags in a trunk simply can’t be evidence of a crime “because there is nothing illegal about having such tags in the trunk of an unregistered car.” There’s nothing illegal either about having blood all over the floor of a room in your house where a person is thought to have been killed. But that might fairly be considered evidence.

It seems to me that some Democrats were calling for a nominee with common sense—a quality particularly appropriate to Fourth Amendment judgments of reasonableness. I think it’s clear that President Bush has given them one.


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