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October 20, 2009

Interesting little SCOTUS criminal justice action today

As detailed in posts from SCOTUSblog and Crime & Consequences, the biggest news coming from the Supreme Court today is its decision to take up a Gitmo case in Kiyemba, et al., v. Obama, et al. (08-1234), which concerns "whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, which is a case with "broader implications for all issues surrounding release or transfer of detainees."  But, for day-to-day criminal justice fans, a little summary reversal and one sharp dissent from the denial of cert also are noteworthy.  Here is how Lyle Denniston at SCOTUSblog describes the criminal justice action:

Among other actions Tuesday, two Justices filed a strong dissent as the Court refused to hear a new case seeking to test the authority of police to stop a vehicle when they get an anonymous tip that an individual is driving while drunk, but the tip has not been backed up by the officers’ own observations.  Chief Justice John G. Roberts, Jr., joined by Justice Antonin Scalia, said the Court should have granted review of Virginia v. Harris (08-1385).  “The police should have every legitimate tool at their disposal for getting drunk drivers off the road,” Roberts wrote. The Court should have addressed, he said, whether police could stop a possibly drunk driver based on a tip they have not verified.  If that limitation on police is what the Constitution requires, the dissent argued, “the dangerous consequences of this rule are unavoidable…The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police.”  The Court’s order and the dissent can be found here.

The Court issued one summary ruling (found here), requiring the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder.  The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected.  This was an error, the Justices said Tuesday in their unsigned opinion in Cocoran v. Levenhagen (08-10945). There were no noted dissents.

October 20, 2009 at 12:24 PM | Permalink


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Roberts and Scalia's dissent=the ends justify the means.

Posted by: RC | Oct 20, 2009 12:39:38 PM

Justice Roberts comments on the DUI case are patently ridiculous. There are very good reasons to require that police verify and corroborate tips before being allowed to make a seizure. In cases other than DUI this might make life harder for cops because verifying certain crimes can be difficult. However, in the context of DUI, verification and corroboration are not a problem. An officer gets a tip, finds the car and makes observations. If the officer does not see anything that corroborates the "DUI" tip, then what is the problem? If the guy is drunk then the officer should be able to see impaired driving. Right?

Posted by: KRG def attny | Oct 20, 2009 12:46:42 PM

"'The police should have every legitimate tool at their disposal for getting drunk drivers off the road,' Roberts wrote."

That's why cert. was denied.

Posted by: Michael Drake | Oct 20, 2009 1:46:40 PM

"one free swerve"

Wasn't that called "evidence" at one point in time.

Posted by: Daniel | Oct 20, 2009 4:36:31 PM

If the tip weren't anonymous, corroboration wouldn't be an issue.

On the flip side, DUI is a strict liability offense based on blood alcohol content, not an offense based on actual conduct while driving. Ability to drive soundly while drunk is not a defense.

It also isn't clear if the anonymous tip rule is a per se rule, or if this was a very "bare tip" without any details that could be reasonably confirmed. A sufficient detailed anonymous tip (e.g. describing what the driver was wearing, what he drank and where and when, giving a direction and rate of speed, mentioning other witnesses who were present) could contain enough detail to make the tip self-corroborating if not contradicted by the officer's observations.

Posted by: ohwilleke | Oct 20, 2009 4:51:28 PM

What would be interesting to see is whether there is any empirical evidence on how many bogus tips there are. I suspect that there are very very few that are. (Most of the time, the cops probably cannot get there.) So if that's the case, and there is less of an issue with stops for DUI (sobriety checkpoints are ok), then there is ample support for overturning the view of the Va. Supreme Court. Whether those things are dispositive is another issue, but the grousing in here about ends justifying the means and the "patently ridiculous" comments are over the top. There's a split in authority, and this is an issue with real world bite.

I agree that cert. should have been granted. Perhaps Roberts' statement will engender law review articles and more thoughtful cases so that the Supreme Court will have a fully vetted issue to rule on.

Posted by: federalist | Oct 20, 2009 5:29:00 PM

We are on the same page here, federalist.

Posted by: Doug B. | Oct 20, 2009 5:46:42 PM

Chief Justice Roberts must drive in Virginia fairly regularly; I wonder if some extreme civil libertarian will (anonymously) drop a dime on him next time he cruises the roads of the Old Dominion...

More seriously, given the propensity of law enforcement to find ways around inconvenient constitutional rules, I wonder if the people's liberties are actually more protected by the extant Virginia rule. If the police can only pull you over when you swerve, does that mean that they will simply refrain from pulling people over who are driving in a straight line? (The letter-of-the-law view.) Or does it mean that they will just pull people over anyway, and in the new box that says "corroborating evidence" they will simply learn to write "swerved"? (The realpolitik view.)

If it is the latter, and you are the rat-ee in this scenario, perhaps you now have cops at your window who have a vested interest in arresting you, or at least fining you, in order to justify their pretextual, preemptory accusation... whereas before you were faced with cops that were merely following up an anonymous allegation, and, if you didn't seem to be doing anything wrong, could more easily let you go without losing face.

Posted by: Observer | Oct 20, 2009 6:09:57 PM

Doug, I'll take any ally I can get in this place. Glad to have you aboard.

Posted by: federalist | Oct 20, 2009 6:22:23 PM

" and in the new box that says "corroborating evidence" they will simply learn to write "swerved"? (The realpolitik view.)"

This would make for a nice sense of cynicism expect for the fact that most if not all cruisers now have cams. I'm not sure most cops want to go down for falsifying evidence.

Posted by: Daniel | Oct 21, 2009 12:20:58 AM

Daniel, police car cameras generally only operate when the lights are on - hence, there would be no available video of anything before the lights were turned on.

And it probably wouldn't matter even if there was - I once defended a client accused of felony evading in Virginia. The officer claimed that on that rural road at 2:00 a.m. there was another car coming the other way. On cross examination, I asked about the camera in the car and whether the lights and siren were on etc. I asked whether they have the video. The response "the video was accidentially erased."

Was my client convicted despite the "accidential" destruction of evidence by the Commonwealth? Of course!

Posted by: virginia | Oct 21, 2009 1:53:00 PM

btw, if you don't know Virginia law, it was the existence of the other car which changed the charge from a Class 3 Misdemeanor (max $500 fine only) to a Class 6 felony (max 5 years in prison and $2500 fine)

Posted by: virginia | Oct 21, 2009 1:56:57 PM

i am currently fighting one of these stops.person at restraunt/bar got into it with my friend,and when we went to leave called us in dui(HE DIDNT KNOW HOW MUCH I HAD TO DRINK)he gave police car plate,model,color,and where in parking lot it was parked,also stated we were "highly intoxicated,and about to leave"didnt leave his name or any identifying info.....police showed up while the tipster was still on the phone and blocked my car in the parking spot it was in(with his emergency lights on)then proceeded to walk up to my window......the rest is typical dui.....does this sound like a proper legal stop? IM NOT LEAVING ANYTHING OUT THIS IS EVERYTHING IN THE POLICE REPORT!sound to me like i should do this to settle my grudges too if this ok to do to people....maybe i should call the prosecuter in DUI right before my motion hearing???no prosecuter no case??.....THIS IS WRONG and UN-AMERICAN

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