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April 22, 2014

Intriguing SCOTUS split over reasonable suspicion for traffic stop based on 911 call

The Supreme Court handed down two notable opinions this morning, and the one that should interest criminal justice fans is sure to get less attention than the one concerning state affirmative action laws. Nevertheless, the split of the Justices alone is intriguing in the 5-4 Fourth Amendment ruling in Navarette v. California, No. 12-9490 (Apr 22, 2104) (available here). Writing for the Court, here is how Justice Thomas's opinion begins and ends:

After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated....

Like White, this is a “close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s reliability here are stronger than those in J. L., where we held that a bare-bones tip was unreliable. 529 U. S., at 271. Although the indicia present here are different from those we found sufficient in White, there is more than one way to demonstrate “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U. S., at 417–418. Under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road. That made it reasonable under the circumstances for the officer to execute a traffic stop. We accordingly affirm.

Justice Scalia authored a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan. Here is how it begins and ends:

The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop.... Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L., 529 U. S. 266 (2000), and Alabama v. White, 496 U.S. 325 (1990). Be not deceived.

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California....

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.  All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.  If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of single instance of careless driving. I respectfully dissent.

April 22, 2014 at 01:45 PM | Permalink

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Comments

This is a ridiculous majority opinion as it creates a "good faith" exception to the 4A for anonymous calls. This is going to be abused. It is going to be abused by the police who will use it to target their enemies where one officer will call in an 'anonymous' tip so that another officer can pull the vehicle over. It will be abused by hackers and other assorted scoundrels who will use Skype or burner phones to harass their enemies. The result will be to decrease the signal to noise ratio on 911 calls and lead everyone to be less safe. Oh well, it seems more and more that anarchy is what SCOTUS wants and so anarchy is what it is going to get.

Posted by: just me again | Apr 22, 2014 5:47:20 PM

The split's not that intriguing. If I had to guess how the search would be affirmed, it would be those five without a doubt. I suppose I wouldn't have guessed Justice Thomas would write the opinion, but that's about it.

If White is right at the edge, this should have been over the edge. That being said, if White is a "close case," but there's room for a closer case, I can see the outcome (although it makes more sense if White is not a close case). I prefer this over some per se DUI rule, although, later on, I wonder if they start approaching a DUI-specific rule (they don't seem to outright say it). That being said, a few thoughts:

The argument that 911 calls are more reliable is a very concerning. I thought they were just going to state that 911 calls are not anonymous, which is at least a little more plausible. The concern about the tip being anonymous is it's unreliability, so a semi-anonymous tip might be more reliable. But Justice Scalia is absolutely right here. The Court spends a decent amount of time considering whether there was RAS for DUI. That seems a stretch and only seems supported because the Court didn't want to address traffic stops for completed crimes.

Scalia's dissent is fun. Any dissent that starts with "be not deceived" is a good one. Of course, his rendition of facts makes it not a close case and he's probably right. He's also almost certainly right about the rule the police will adopt. They can probably just quote him for it so they don't have to think of it themselves. Overall, interesting and hopefully narrow case.

Posted by: Erik M | Apr 22, 2014 6:21:50 PM

It's somewhat more intriguing for those who think Scalia and Thomas are always on the same side. Breyer joining the majority in a 4A case that upholds the government's actions by now is not that intriguing for those fairly familiar with his tendencies.

Scalia's vote is somewhat "intriguing" especially given this isn't quite the typical "clear line rule" sort of case where he at times comes on the side of the defendant. Some of his libertarian tone might surprise some who know he joins the majority in a range of cases not very libertarian, including let's say the Whren case. But, even there, he has been actually something of a swing vote in stop cases, so the split is not really overly surprising.

Posted by: Joe | Apr 22, 2014 6:33:54 PM

Well, it is a categorical rule case, the rule that you need reasonable articulable suspicion. Even once there, it's about corroboration for an anonymous tip. Those are clear rules and they all agree. Then it's a question of fact and sufficiency of the evidence. I don't think he has a problem with that. A case requiring Probable Cause would need to decide if there's Probable Cause.

If anything, I think Justice Scalia is afraid they're going to reduce the corroboration requirement because of the specific offense in question. So he is concerned that the majority is moving away from those clear rules that he supports (and they claim they are following).

Posted by: Erik M | Apr 22, 2014 8:33:14 PM

One of the very worst Fourth Amendment cases in recent times. Scalia utterly destroys the majority opinion.

Posted by: Michael R. Levine | Apr 22, 2014 9:51:55 PM

I agree with Scalia. His opinion has some echoes from the recent case where some poor bastard got the TSA treatment because someone thought he was mad and could get access to a gun.

I like punishing criminals, but I love my freedom more.

Posted by: federalist | Apr 22, 2014 11:05:13 PM

I agree with Federalist on this one. We are all at risk now from police stops prompted by anonymous 911 calls ("friends" with a grudge, ex-boyfriends or girlfriends, nasty neighbors, teenage pranksters--you name it; and the cops will have a field day).

Posted by: Michael R. Levine | Apr 23, 2014 1:40:07 PM

well seems our glorious fuckups on the USSC are talking out their asses like usual.

What the fuckups on calif should have done is find the car and follow it. If they are drunk it should have shown up quickly. At that point they had all the RAS they needed to make the damn stop without violating the constitution to do it.

this is right up there with all those illegal traffic stops where the car owners supposedly agree to a search of their vehicles knowing they have kilo's of drugs laying in the back seat. Just how fucking stupid do they think we are? We all know they conducted an illegal stop and committed a crime!

Posted by: rodsmith | Apr 23, 2014 3:31:36 PM

Let's see. I throw a bunch of drugs in a bag into the back seat of the mark's car.

When he takes off, I anonymously call 911 from a payphone with no CCTV, using gloves, and say I just saw him leave a known drug deal and where he probably is driving now.

He gets stopped, with the drugs, and BAM!! Instant bust. Easy peazy, nice and easy.

Mix and match for hundreds of variation of above. Prove your innocence across the board! Fat chance, squidoo.

Posted by: Eric Knight | Apr 23, 2014 4:34:34 PM

how true Eric and I can just see cops being the ones to both plant the drugs and then make the call just to pump up their numbers and guarantee promotion as well as just plain old revenge if pissed off.

Posted by: rodsmith | Apr 24, 2014 12:22:17 AM

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