Bench Memos

This Day in Liberal Judicial Activism—October 31

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket.  The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.”  On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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