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From the Chief Justice, a Novel Dissent

The Washington Post
Wednesday, October 15, 2008

The Supreme Court turns down most cases without comment, but yesterday Chief Justice John G. Roberts Jr. decided that his colleagues' agreement not to hear a Pennsylvania drug bust case demanded a written dissent.

And not just a routine dissent. Instead of employing the usual staid legal prose, Roberts channeled his inner Mickey Spillane in objecting to his colleagues' decision. Justice Anthony M. Kennedy signed on, as well.

Pennsylvania's top court had thrown out the suspect's arrest on the grounds that the police officer who saw an apparent exchange between two suspicious men lacked enough evidence to make the arrest.

Roberts wrote:

"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."

"Not good enough" for the Pennsylvania Supreme Court, Roberts noted, which had ruled that a " 'single, isolated transaction' in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not attempt to flee."

"I disagree with that conclusion. . . . A drug purchase was not the only possible explanation for the defendant's conduct, but it was certainly likely enough to give rise to probable cause," Roberts wrote.

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