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"The majority seems to imagine 'probable cause' as a cloud that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even though the individuals are not suspected of any particular crime."

"The majority seems to imagine 'probable cause' as a cloud that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even though the individuals are not suspected of any particular crime." So begins the opinion of Circuit Judge Marsha S. Berzon, dissenting from the ruling that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.

The opening paragraph of Judge Berzon's dissent continues:

This "probable cause" cloud, the majority imagines, is available for invocation by law enforcement to justify virtually any search. But, as the case law makes clear, probable cause does not exist in the air. And probable cause to think that someone is odd or a slob or that his friend is a negligent father does not justify seizing and searching his computers.

The final substantive paragraph of Judge Berzon's dissent begins, "I cannot help but think that had this case involved anything but child pornography, it would come out differently."

Because the deciding vote on the three-judge panel was provided by a senior U.S. District Judge visiting from outside of the Ninth Circuit, this case may have a better than average prospect for rehearing en banc.

Full post as published by How Appealing on February 07, 2011 (boomark / email).