Roberts and the Fourth Amendment

Thomas K. Clancy, a visiting professor at the University of Mississippi School of Law, has written an interesting and somewhat discouraging analysis of the eight Fourth Amendment cases in which John Roberts has participated on the U.S. Court of Appeals for the D.C. Circuit: four in which he wrote the majority opinion, one in which he wrote a dissent, and three in which he joined the majority without writing an opinion. Roberts sided with the government in all eight cases, generally based on defensible readings of the relevant precedents. That description includes his reasoning in the notorious "French fry" case, in which Roberts concluded that arresting a 12-year-old girl for eating in the subway, though stupid and cruel, did not violate the Fourth Amendment because the existence of probable cause was undisputed.

One conspicuous exception, Clancy argues, was a case in which Roberts concluded that evidence of drug possession discovered during a so-called Terry frisk should not be suppressed. Such frisks are supposed to be limited to protecting police officers from concealed weapons, and the officer in this case testified that he did not believe the object he felt during the frisk, a cocaine scale, posed a threat to him. Substituting his own speculation for what the officer actually believed, Roberts said the object, while clearly not a gun, might have been a box cutter or some other potential weapon.

[via Grits for Breakfast]