Judge Berzon does her best to channel Holmes about law in the sky.
“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. 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.
In Southern Pacific Co. v. Jensen, Justice Holmes dissented:
The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact.