The majority opinion by Judge Rogers found the officer's justification for searching the trunk of a car for proof of ownership was illogical and strained at best, and based solely on his alleged experience in having found missing license plates in the trunk of cars in the past. Judge Rogers clearly ascribed to Judge Roberts that he defers Fourth Amendment reasonableness determinations to the police, but he was more judicious that I am.

While the existence of probable cause does not depend on the elimination of all innocent explanations for a situation, Gates, 462 U.S. at 243 n.13, our dissenting colleague, although acknowledging the values underlying the Fourth Amendment, see Dissenting Op. at 9, posits the most incriminating interpretation of the circumstances, as though the existence of countervailing probabilities was irrelevant. Were that the law, then the government’s burden would be considerably eased, for the particular circumstances causing the police to make a traffic stop could often be viewed most negatively without regard to a citizen’s Fourth Amendment protections. The Fourth Amendment requires a different analysis, as the concurring opinion of Judge Edwards makes clear. See Concurring Op. at 1, 5. That the Fourth Amendment places a heavy burden on the government is apparent from our car-trunk search cases, which carefully articulated the substantiality of the connection between information known to the officers and the likelihood of contraband in the car trunk. ***

In searching the trunk, the Fourth Amendment makes clear that the officers stopped their investigation too soon. While the fact that a car has stolen tags may, in some instances, suggest that the car itself is stolen and therefore may provide probable cause to search for documentation of ownership, no such inference could be drawn here. Instead of establishing probable cause and justifying a search of the trunk, the lack of information about the driver’s authority to use the car and the ownership of the car should have served to prompt further inquiry. ... Our dissenting colleague conveniently ignores that nothing in the record indicates that, at the time the officers searched the car, the driver, who was secured inside the cruiser in handcuffs, had reason to believe that he was suspected of being an unauthorized user of the car; thus he had no reason to volunteer an explanation for his use of the car. The cases cited by the government illustrate that a prudent, cautious, and experienced officer would seek information from the driver precisely because the driver’s responses to police inquiries can clarify the situation and may provide probable cause for a further search of a vehicle. ... Had the officers, for example, inquired of the driver about the ownership of the car and how he came to be driving it, then based on his answers and demeanor they may have been able to establish probable cause to believe contraband or evidence of a crime was in the trunk, or the driver’s response could have confirmed the lack of probable cause. And, contrary to the view of our dissenting colleague, see Dissenting Op. at 7-8, the officers’ questions would not have been futile, as they had “ready means” of verifying ownership of the car: they could have called the purported owner and had her come to the scene with proof, much like Officer Garboe testified he does upon finding verified proof of ownership in a vehicle.

The concurring judge, Judge Edwards, added that the officers' entry into the truck was essentially based on faultly logic that evidence would be found:

The District Court concluded that a fair probability existed that the officers might find the car’s “real tags” in the trunk. Wisely, the Government does not defend this argument before us, for, as [the appellant] points out, there is no reason to believe that an unregistered car would have any legitimate tags. Br. for Appellant at 9-10. Instead, the Government presents two arguments in support of its claim that the facts here gave rise to probable cause to search the trunk. Neither argument is persuasive.

Judge Roberts, however, was willing to defer entirely to the officers' choice of course of action, based on their alleged experience or just on the expediency of the situation, and he would not require them to investigate the true owner before searching the trunk for a license plate if they felt it necessary.

The best Jackson [the appellant] could do was tell the officers—as he did, at some point—that the car belonged to his girlfriend. 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. Even if Jackson had provided contact information for his girlfriend in response to inquiries from the officers, and even if the officers had been able to reach the girlfriend and she were responsive to their questions, I cannot see any conceivable value in the over-the-phone testimony of a suspect’s apparent girlfriend—someone unknown to the officers, whose number was given to them by the suspect himself—that an unregistered car with stolen tags, driven by an unlicensed driver, was indeed hers and was being used with her permission.

Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) (“creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished” (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.

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.

So, what does this tell us about Judge Roberts? He defers to the police choice of a course of action, based on their experience. It is true that experience often forms the basis of probable cause and reasonable suspicion determinations, but we have to remember that Ornelas requires de novo judicial review of all these determinations in warrantless search cases. How sensitive will Roberts be to the Fourth Amendment when he gets to the Supreme Court? He can talk the talk about "the Fourth Amendment’s place among our most prized freedoms," and it is too soon to tell if he can walk the walk, but it doesn't look good. All this case shows is lip service to one of "our most prized freedoms."

He seems to fall over himself to volunteer that he adheres to the historical values of the Fourth Amendment, but, in the next breath, he hands them over to the police to decide whether the people should have them.

Anthony Amsterdam's famous line from 1974 about reasonableness and police discretion comes to mind: "What it means in practice is that appellate courts defer to trial courts and trial courts defer to the police. What other results should we expect? If there are no fairly clear rules telling the policeman what he may and may not do, courts are seldom going to say that what he did was unreasonable." Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 394 (1974). Ornelas's de novo review requirement is supposed to prevent that. In Judge Roberts' world, the police decide on reasonableness, and judges defer to that determination, and the Fourth Amendment becomes meaningless.

If deferring to the police is the essence of reasonableness, those who believe in a strong Fourth Amendment would say we are in trouble.

Judge Roberts also gives me pause by this passage, quoted above: "Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise."

This sounds like he's catering to those who equate "activist judge" with any judge that disagrees with the government.

I have purposely avoided reading about Roberts until more of the facts are in. But add this to his strong religious upbringing that holds abortion is wrong (and his wife's being a prominent member of an anti-abortion group) and Roe v. Wade would be history.

I know enough to know that we are in trouble, and he's so confirmable. That's scary.

The handwriting is on the wall.