Wednesday's Weird But True Legal Cases - Vol LI

This week's weird (but true) legal case is inspired by a CLE (continuing legal education) course I recently took on the laws of search and seizure.

Before getting into the case, a brief introduction is in order. The Supreme Court of the United States hears cases in three different ways. Certain cases are original jurisdiction (such as those where a state is a party or those involving certain ambassadors) while others reach the Supreme Court on appeal from either the highest court of a state or from a Federal Circuit Court of Appeals. When parties seek to appeal in the latter situations, they typically file for a writ of certiorari by which the Supreme Court indicates that it is willing to hear the controversy. In order to obtain the writ, four justices of the Supreme Court must agree to hear the matter.

In Pennsylvania v. Dunlap, 129 S.Ct. 448 (2008) a petition for a writ of certiorari was filed by the State of Pennsylvania, which asked the Supreme Court to review a decision from the Pennsylvania Supreme Court. The underlying controversy involved an officer who arrested the defendant after the officer saw a hand to hand transaction in a high crime neighborhood. After the Pennsylvania Supreme Court ruled that the officer lacked probable cause based on his observations, the prosecutors sought review of the decision.

Although the appellants were unable to obtain the requisite four justices, the Court did not summarily deny the application. Instead, Chief Justice Roberts along with Justice Kennedy wrote a dissent from the denial of certiorari. The first two paragraphs of the dissent read like a novel and are reproduced below:

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.

You can look up the decision and read Chief Judge Roberts prose at
http://www.supremecourtus.gov/opinions/08pdf/07-1486.pdf .

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