A p.s. to a farewell

Updated When I first read the Reuters article about the Roy Caballes decision, I missed something really important. So if my previous post didn't shock you enough, try this on for size: In his majority opinion, Justice John Paul Stevens also argued that

Caballes did not have a legitimate expectation of privacy for contraband in the trunk of his car. He said that was different from the expectation that information about perfectly lawful activity will remain private.

Think about that. I mean really. In that sentence, Stevens takes the utterly shocking position that the cops' actions were justified because drugs were found: the end justified the means in its most literal sense. He thus declares his willingness to quite literally eviscerate the Fourth Amendment.

He would eliminate the possibility of challenging illegally seized evidence: If evidence was found, by definition it couldn't have been obtained illegally because the accused had no legitimate expectation of privacy. (And no hiding behind the "he was convicted, so he was really guilty" crap: The question of the legality of the search precedes, it does not follow, the verdict. No ex post facto excuses allowed.) He would eliminate the need for search warrants: So long as anything is found, the search was legal.

And if nothing is found? What is your recourse? Sue the police? For what? I can easily imagine Stevens or anyone following his "logic" arguing that there was no demonstrated harm because the search didn't reveal anything you were trying to keep secret. But of course if it had done so, pursuing a suit would only serve to spread that former secret farther and wider, making such a suit unlikely except in the rarest of circumstances.

So desperate was the majority in this case (David Souter and Ruth Bader Ginsburg were the dissenters) to fashion an out for the police that they wound up embracing a concept that is utterly destructive of a central Constitutional guarantee against arbitrary exercise of police power.

Updated to note, as I should have, that both Souter and Ginsberg reached the same conclusion that I did: the dog sniff actually constituted an unjustified search. Ginsberg specifically labeled it a violation of Caballes' rights. Hopefully, what is a dissent now can, as in other examples, later become accepted doctrine.