The case of Tarry M. Jackson dates from 1 o'clock on the morning of May 4, 2002, when U.S. Park Police were patrolling in Fairfax County west of Washington. Officers Jeffrey Garble and Wayne Johnson noticed a 1988 Mustang with a non-functioning tag light. They pulled the driver over.
It transpired that more was involved than a broken light. The car was owned by Jackson's girlfriend. He said she had bought it at a car auction a month earlier. The vehicle carried temporary tags — tags that had been reported stolen from a residence a few miles away. The officers naturally arrested Jackson for driving an auto with bogus plates. It further developed that Jackson was driving on a suspended driver's license.
Their curiosity piqued, the two officers then erred — or so the appellate court would rule. Without a warrant, they opened the Mustang's trunk. Behold! Wrapped in a child's backpack was a loaded 25. caliber pistol and a small box of ammunition. The cops arrested Jackson on all the charges they could think of, plus some that occurred to them later, and brought him to trial.
It had not been a model of police performance. Garble and Johnson had failed to get a warrant to search the trunk. Granted, it was the middle of the night, but an obliging magistrate probably could have been found. The officers' testimony was only shakily solid. At trial, the defendant proved to be an amiable fellow, eager to set everyone straight. Even so, he was found guilty and sentenced to 21 months in jail plus three years' probation.
Jackson appealed to the D.C. Circuit, where he lucked into a three-judge panel composed of Judge Judith W. Rogers, Judge Harry T. Edwards and Judge Roberts, the new kid on the block. Rogers and Edwards voted to reverse. She delivered herself of a truly sappy opinion. She imagined there were "many reasons" why Jackson had stolen plates on his lady's car. The fact that he had no driver's license was of no moment. It was "entirely implausible," she held, that a search of the trunk would turn up evidence to support a charge of driving without a license.
Puffing and blowing, Judge Edwards concurred. He lectured his newly acquired colleague on the role of a judge: "Judges must resist the temptation to ignore unconstitutional conduct by police officers." Evidently he thought such a novel idea would not have occurred to young Roberts. He continued: "It is precisely the predictability of such abuses that counsels a resolute loyalty to constitutional safeguards." Now, Johnny, say your prayers and go to bed.
Judge Roberts, dissenting, stuck deferentially by his guns. His colleagues' "possible explanation does not strike me as probable at all." In his view, "the officers had good grounds for believing that the car had been stolen and that relevant evidence could be found in the trunk. It was late at night and the tag light was out, suggesting from the beginning of the encounter that Jackson was attempting to obscure the car's license plates."
Once Jackson had pulled over, "the officers learned that there was indeed something to hide: The temporary tags affixed to the car had been stolen and altered to match the car's make, model and vehicle identification number."
Roberts pressed on: "Stolen tags often accompany stolen cars. The reason is obvious: By replacing the real tags with stolen tags the thief makes it impossible for police to identify a stolen vehicle by sight. Given the cumulation of suspicious circumstances suggesting the car may have been stolen, the officers reasonably, in my view, turned their attention to the trunk." All in all, the police had "ample grounds" to suspect the car was stolen.
Roberts concluded with a little lecture of his own: "We have neither the authority nor the expertise to prescribe investigative procedures. I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the affair pursued a different course."
The country is going to like this guy. On to confirmation!
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE
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