Legal Commentary

I decided to make a momentary re-appearance in blog-land because I've been a bit perturbed by the various blog coverage of the Chief Justice's dissent from the denial of certiorari today in Pennsylvania v. Dunlap.  Everyone's obsessed with the creativity of the film-noir (or Dragnet-style) opening to the dissent, with a substantial amount of praise for the Chief Justice for doing something original (what does _that_ say about the predictability of Supreme Court opinions that we go nuts for anything remotely different?).

I want to raise one note of dissent from the praise. It's not that I don't think it's clever and fun to read--like most of the Chief Justice's writing, it is clear and to the point. It's that I think the opinion, especially the opening stanza, is to some degree contemptuous of both the defendant and the state courts...

• Maybe it's that I'm bothered by the whole idea that the Court's probable cause jurisprudence cares what neighborhood you live in--should the same transaction among sketchy-looking characters have different legal consequences in Northwest DC than in Southeast?
• Maybe it's that the Chief Justice seems to suggest, however implicitly, that all criminal procedure is like Dragnet (and how many times were _those_ searches thrown out by the courts)? That there is an obviousness to what the police officer saw, and that obviousness = probable cause (as opposed to reasonable suspicion, which may well have been present here). Does probable cause really arise from every commercial transaction on a street corner where the product sold might be drugs? Really?
• Maybe it's that the Chief Justice suggests this is so obvious when the state supreme courts--as he himself notes--have so bitterly divided on the issue.

I'm not sure--and I'm no literary critic. But something about the opinion just rubbed me the wrong way... am I crazy?