It's another bad day for the Fourth Amendment.
Two brothers are driving a silver Ford F-150, license plate 8-David-94925. An anonymous caller dials 911 and claims that the truck ran her off the road.
Stop. How confident are you that the driver of that truck is engaging in ongoing criminal activity (i.e., drunken driving) at this point?
The California Highway Patrol sure wasn't. A cruiser followed the truck for five minutes, and when no additional signs of intoxication or erratic driving were witnessed, the officers pulled over the vehicle, only to discover 30 pounds of marijuana in the truck bed.
Justice Thomas, writing for the majority of the Supreme Court, called this a "close case" and upheld the stop, citing indicia of reliability in the 911 call. Scalia, along with three liberal justices (if they keep this cross-ideological, pro-Fourth team going, we're going to have to give them a nickname, like the Fourth Faction) pointed out that the only thing that the call showed was that there was as silver truck driving on a road, headed southbound -- that's it.
Justice Thomas: Indicia of Reliability
Though "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," under appropriate circumstances, an anonymous tip can demonstrate "sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop."
That standard comes from White, where a tipster told the police that a woman would leave an apartment complex in a station wagon full of drugs, with a broken right taillight, and would drive to a specific motel. The origin, destination, and physical description of the vehicle were all corroborated by officers before the car was stopped. This was held to be constitutional.
In a different case, a tipster said that there was a black juvenile with a gun at a bus stop. That was not enough information to warrant a stop.
Where is the line? There is none, at least not yet. But at least in this case, the majority felt that this "close case" was sufficiently close to the White "close case."
The indicia of reliability here were the description of the vehicle, and the direction and mile marker location of travel, all of which were corroborated by the police. In addition, because the 911 call was placed so soon after the incident happened, Justice Thomas cited "present sense impression" and "excited utterance" hearsay exceptions as further reasons to believe the anonymous tip. Finally, because 911 calls can be traced, and because there are penalties for placing fake calls, that supposedly adds to the credibility.
As for tying the tip about erratic driving to drunken driving (an ongoing crime to justify a stop), Thomas cites drunken-driving studies and symptoms to argue that an incident of reckless driving, reported anonymously, is enough to suspect ongoing drunken driving, because reasonable suspicion "need not rule out the possibility of innocent conduct."
Justice Scalia's Dissent
What did the CHP know about the tipster, besides her gender? Nothing, yet they relied upon her tip to seize the Navarette brothers.
In White, there were details that only someone involved in the driver's business would know (origin, destination, drugs in the car). Here, someone described a truck on a road. Anyone on the road could have made that same description.
As for the "present sense impression" and "excited utterance" arguments, Scalia argued that there "is no such immediacy here." Why?
Think about it. She had the time to observe the plate, pull over, write the plate number down, and call 911, all after she was "ran off the road" by a truck that was speeding away. She may be lying. She may not. But it's not the same sort of statement as, "My God, those people will be killed!"
Also, here's a common-sense question raised by amici and Scalia: If we can readily determine the identity of 911 callers, and if this acts as a deterrent to lying, and as an indicator of reliability, then why are we talking about an anonymous tipster here? Plus, there's no evidence to show that callers know that they can be identified.
Finally, even if the tip was reliable, what does it really say? Someone drove erratically at one point. What causes erratic driving? Scalia cites potholes, animals, jaywalking pedestrians, a hands-free cell phone, and an argument between the brothers about sports. We could think of a few dozen other possibilities, as could you, which is exactly the point. What percentage of reckless drivers are drunken drivers? Not enough to justify a stop.
And definitely not enough of a justification once the officers followed the truck for five minutes and witnessed "irreproachable" driving. Thomas argued that the driver could have simply tried really hard to drive well once he noticed the cops, but Scalia points out that drunks are drunk, quipping, "Whether a drunk driver drives drunkenly, the Court seems to think, is up to him."
Who do you think has the better end of the argument -- Justice Thomas' majority opinion, or Justice Scalia's raging dissent? Join the discussion on Facebook at FindLaw for Legal Professionals.