Scalia, J., dissenting
factors relevant to its determination whether there was probable cause to conduct a warrantless search and reasonable suspicion justifying the investigatory stop: (i) the two NADDIS tips; (ii) that the car was a 1981 two-door General Motors product; (iii) that the car was from California, a source State; (iv) that the car was in Milwaukee; (v) that it was December; (vi) that one suspect checked into the hotel at 4 a.m.; (vii) that he did not have reservations; (viii) that he had one traveling companion; (ix) that one suspect appeared calm but shaking; and (x) that there was a loose panel in the car door. If the Seventh Circuit were to find that this unique confluence of factors supported probable cause and reasonable suspicion, the absence of any one of these factors in the next case would render the precedent inapplicable.
Of course, even when all of the factors are replicated, use of a de novo standard as opposed to a deferential standard will provide greater clarity only where the latter would not suffice to set the trial court's conclusion aside. For where the appellate court holds, on the basis of deferential review, that it was reversible error for a district court to find probable cause or reasonable suspicion in light of certain facts, it advances the clarity of the law just as much as if it had reversed the district court after conducting plenary review.
In the present case, an additional factor counseling against de novo review must be mentioned: The prime benefit of de novo appellate review in criminal cases is, of course, to prevent a miscarriage of justice that might result from permitting the verdict of guilty to rest upon the legal determinations of a single judge. But the issue in these probable-cause and reasonable-suspicion cases is not innocence but deterrence of unlawful police conduct. That deterrence will not be at all lessened if the trial judge's determination, right or wrong, is subjected to only deferential review.
The Court is wrong in its assertion, ante, at 698-699, that unless there is a dual standard of review—deferential review of a magistrate's decision to issue a warrant, and de novoPage: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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