Wednesday, April 23, 2014

"Freedom-destroying cocktail"

In a recent decision, Navarette v. California, 572 U.S. _ 2014, No. 12-9490, the US Supreme Court ruled that an anonymous tip from a 911 caller was sufficient to create reasonable suspicion of criminal activity of a driver and search of his vehicle was reasonable. The 911 caller reported that a Silver Ford 150 pick up truck had run her off the road. The caller also reported the location of the incident and the plate number of the truck. A few minutes later the CHP officers located a similar pick up truck further down the highway, stopped the vehicle without any further corroboration. As they were conducting a traffic stop, they smelled marijuana from the vehicle. The search ensued, with 30 pounds of marijuana discovered in the truck.

By distinguishing the landmark case on the topic, Florida v. J.L. (2000) 529 U.S. 266, the majority opinion held that the tip here had sufficient indicia of reliability to give reasonable suspicion to the officers that the driver was drunk. The caller’s account indicated she was an eyewitness to the incident, by providing the license plate number, the location and the model of the car. The Court also pointed out that the timeline of the events, the reported location of the incident by the caller and the officers’ spotting of the truck a few minutes later sufficiently corroborated the tip. The fact that the tipster used the 911 system also pointed to the reliability, since a false tipster would be aware of the tracking system and would not be willing to resort to false reporting.

The Court quickly dismissed the argument that even if the tip could be reliable, it might not have necessarily raised reasonable suspicion that the driver was actually drunk or perhaps the police could have further corroborated the observations of the tipster by following the vehicle before initiating the stop.

Justice Scalia (surprisingly) dissented with Justices Ginsburg, Sotomayor and Kagan, pointing out that this was a vivid departure of precedent, that anonymous tips must be corroborated before they form basis for reasonable suspicion of criminal activity. By noting that the tip would have qualified to be admitted neither as a ‘present sense impression’ nor an ‘excited utterance’, Justice Scalia pointed out that the question was not how the tipster could see this happening but whether what she claimed was true. Nothing corroborated the caller’s statements.

Furthermore, Scalia pointed out, “I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent.” To allow the police to make traffic stop on the basis of uncorroborated and anonymous caller to catch .1 percentage of drunk drivers is an unjustifiable intrusion into Fourth Amendment rights or as Scalia called it, a two-part ‘freedom-destroying cocktail’.

He was further outraged with the fact that in the five minute observation of the truck before initiating the traffic stop, the CHP did not observe any suspicious driving. They had no personal corroboration of the bad driving alleged by the 911 caller. This fact alone should have quickly undermined the reliability of the tipper.

The upshot of this case is the continuing erosion of the Fourth Amendment principles. If you are a driver, you have no protection against anonymous 911 calls and the police are free to decide whether they will credit the caller and stop your car or not. You are at the mercy of law enforcement.

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