Subscribe via RSS Feed

Today In the War on (Some Classes of People Who Use Some) Drugs v. The Fourth Amendment

[ 194 ] April 22, 2014 |

Today, a bare majority of the Court upheld the constitutionality of a search that stopped a truck and found 30 pounds of marijuana. The sole basis for the search was the uncorroborated tip of an anonymous informant. That sentence is nearly sufficient in itself to refute the majority’s case, but Breyer and (somewhat more surprisingly, Thomas, who spoke for the Court) joined the Court’s three consistent opponents of the Fourth Amendment to uphold the search. Scalia dissented for Ginsburg, Kagan and Sotomayor.

There’s really not much I can add to the Scalia dissent, which demolishes the majority and leaves nothing standing. There is one paragraph I’d like to highlight, however. This is a little different than the typical drug case in that the possibility of impaired driving presents a immediate potential public safety risk that someone possessing drugs in their apartment does not. The police certainly do have the leeway to conduct traffic stops if they observe someone driving recklessly, and if they’re altered to reckless driving by even an uncorroborated informant, that’s usually OK. In this case, however, the police had nothing resembling reliable evidence of impaired driving either coming or going:

It gets worse. Not only, it turns out, did the police have no good reason at first to believe that Lorenzo was driving drunk, they had very good reason at last to know that he was not. The Court concludes that the tip, plus confirmation of the truck’s location, produced reasonable suspicion that the truck not only had been but still was barreling dangerously and drunkenly down Highway 1. Ante, at 8–10. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And that was good police work. While the anonymous tip was not enough to support a stop for drunken driving under Terry v. Ohio, it was surely enough to counsel observation of the truck to see if it was driven by a drunken driver. But the pesky little detail left out of the Court’s reasonable-suspicion equation is that, for the five minutes that the truck was being followed (five minutes is a long time), Lorenzo’s driving was irreproachable. Had the officers witnessed the petitioners violate a single traffic law, they would have had cause to stop the truck, and this case would not be before us. And not only was the driving irreproachable, but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed. Consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined. [Some cites omitted]

That should settle it. Even under the probably-too-forgiving standards of Terry and its progeny, there was no “reasonable suspicion,” and the search is therefore unreasonable under the Fourth Amendment and the evidence collected should be suppressed. Scalia again:

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 a single instance of careless driving. I respectfully dissent.

Comments (194)

Trackback URL | Comments RSS Feed

  1. junker says:

    So, I’m no law talking guy, but what would prevent the police from calling in an “anonymous” tip that you were running a human trafficking ring in your basement and searching without a warrant? If they wanted to search your house, what would stop them from just calling in tips themselves?

    • Murc says:

      Cops have, in fact, done just that in the past, are doing it right now, and will continue to do it in the future.

      Same way they carry dime bags of pot to “discover” during searches, or (and admittedly, this one is way less common than it used to be) handguns to plant.

      (Sidebar: I remain baffled that there has yet to be a “Law and Order: Internal Affairs Investigations” or other TV show in that vein. It would be fucking compelling.)

      • joe from Lowell says:

        I always though Cops should have shown the bad guy getting away sometimes.

        It would have humanized them. Guys working hard, doing a tough job…maybe it’s just me.

        • NYCer says:

          I suspect you are not the target audience for COPS. Does the target audience want to see cops humanized or see them busting heads?

          • joe from Lowell says:

            I suspect you are not the target audience for COPS.

            Oh, that’s right. It’s ALL CAPS. Lol.

            Anyway, that’s the nicest thing you’ve ever said to me.

        • LeeEsq says:

          Thats too European for American tastes. Most American police procedurals tend to get into very black and white morality, especially if its on network TV. There are a few exceptions and movies allow for more diversity but its still rather bound by certain conventions.

      • L2P says:

        Maybe, but if the cops are calling in their own tips it’s because they already know something just short of probable cause. They can’t just call it in on any random person because they’d have to waste so much time finding some corroboration it wouldn’t help them. And probable cause requires so little these days I can’t imagine it’s that common.

        What you DO see more IMX is if they just want to mess with someone but not make an arrest they’ll call in a tip.

      • Anonymous says:

        the good wife latest episode

      • Anonymous says:

        Line of Duty, available to US viewers on Hulu. The ending of the second series was weak, but the first five and a half hours were so good I forgave it.

      • Brien Jackson says:

        They have Internal Affairs cops on Law & Order all the time…and they’re always painted as the bad guys, even when they’re doing something like investigating cops for raping another cop.

        • Murc says:

          Same deal with the IA guys on CSI. But it’s not like you’d suddenly make a show where Lenny Briscoe is the bad guy right out of nowhere; instead you make a procedural about a hard-bitten squad of Serpicos who are hated by everyone else in the department and regarded as traitors and sell-outs, but they do the job anyway because they’re just that hardcore about being good cops.

          You can use the exact same writing formula as every other procedural ever, but it would be instantly interesting because you’ve flipped the script around. It is simultaneously new and exciting AND a proven formula with a long track record of success. You’d think a network would be all over such an obvious thing.

      • Jhoosier says:

        Person of Interest had a whole gang of dirty cops on it.

      • Anonymous says:

        Also, drug sniffing dogs that are essentially trained to “signal” when their handler wants them to, even if drugs are not present.

      • Greg says:

        I can’t see that as a Law & Order show, but it would be a great serialized cable drama. FX perhaps?

    • L2P says:

      Well, probably not. Under Gates, solely relying on an anon informant doesn’t provide enough. They need to corroborate some relevant part of the informant’s information.

    • Joe says:

      It’s harder to enter a home than stopping people or vehicles on the street. You might get to the door, but an anonymous tip to get inside it … sounds doubtful to me.

  2. NYCer says:

    For once I largely agree with a Scalia opinion it seems, but he still manages to talk out of a non-oral oriface:

    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

    We all know that is not quite true. I doubt that, if Richperson McWhite were identified by a malevolent 911 caller, the police would pull him over based on a mere 911 call asserting a traffic violation.

    And issues of police resources and priorities also come into play. Drivers consistently speed in front of my apartment even though it is across the street from a play ground. I suspect even if I started calling 911 on every driver that was flagrantly speeding by my apartment, the police would, even with the mayor’s much touted “Vision Zero” plan, probably do nothing. Heck, I would probably get busted for making too many specious 911 calls.

    Again, it still, IMHO, boils down to the issue of the title of the post. This time, evidently the hypocrisy was too much even for Scalia and, good on him!, he pushed back against it. But I don’t see his parade of horribles happening simply because the issue is not whether police are stopping folks based even on malevalent tipsters to 911 (because I don’t think the police are going to waste their time pulling over certain people even if there is a 911 call alerting them to “suspicious driving”), but because the police are still pulling folks over for DWB and DWH. And I guess DWH gets too close to comfort to DWS (Driving While Sicilian) to comfort for Justice Scalia.

    • David Hunt says:

      It’s my understanding the Scalia doesn’t suck as 4th Amendment cases go, at least in comparison to the medium Justice on the current Court.

    • Oscar Goldman says:

      But I don’t see his parade of horribles happening simply because the issue is not whether police are stopping folks based even on malevalent tipsters to 911 (because I don’t think the police are going to waste their time pulling over certain people even if there is a 911 call alerting them to “suspicious driving”), but because the police are still pulling folks over for DWB and DWH. And I guess DWH gets too close to comfort to DWS (Driving While Sicilian) to comfort for Justice Scalia.

      But the parade of horribles is not the continued police practice of relying on anonymous 911 callers but the new stamp of approval from Thomas. There is no longer a remedy for this violation. Moreover, this case’s import is not really limited to driving–it says a lot about anonymous 911 calls and how reliable they are (even when they demonstrably are not).

    • brad says:

      I’d just like to point out that I actually went to school with a Rich White, and he was one.

    • Snarki, child of Loki says:

      “I doubt that, if Richperson McWhite were identified by a malevolent 911 caller, the police would pull him over based on a mere 911 call asserting a traffic violation.”

      Well, clearly this proposition should be tested. Extensively.

      Anyone know the make, model, color and license plate# of Roberts and Alito?

  3. L2P says:

    I don’t understand how the information IN an anonymous call can ever, on its own, establish its reliability. The Court essentially is saying that if an anonymous caller reports criminal activity, that anonymous report alone is enough to justify probable cause.

    This seems bizarre to me.

    • GoDeep says:

      In a reckless driving situation, you really want to force the cops to tail someone until they drive recklessly in front of them??? I see enough reckless driving that I want cops to take all reports seriously. If they pull you over and you pass your sobriety test, no harm, no foul.

      • Anon21 says:

        In a reckless driving situation, you really want to force the cops to tail someone until they drive recklessly in front of them???

        Yes, or otherwise corroborate the anonymous tip, which has no real indicia of reliability.

        I see enough reckless driving that I want cops to take all reports seriously.

        Tailing a car to determine if the driver is behaving recklessly isn’t “taking the report seriously”?

        If they pull you over and you pass your sobriety test, no harm, no foul.

        Yes harm, yes foul. In the absence of actual reasonable suspicion that you’re committing a crime, police officers do not have the right to detain you as you’re going about your lawful business. Nor do I want to live in the kind of society where “no harm, no foul” or its close cousin, “If you’ve done nothing wrong, you have nothing to hide” is the basis of our interactions with law enforcement.

        • Craigo says:

          +1.

          Searching a person or their vehicle on the basis on an anonymous tip, absent other evidence, is patently unreasonable.

          • GoDeep says:

            You can be drunk and still not swerve every couple of minutes. You can even be black out drunk and have ppl talking to you be unaware. Given the high rate of traffic fatalities out there and the number drivers driving recklessly because of alcohol, drugs, or cell phones I want the police to be much more active and to test drivers who get called in by anonymous tips. The life they save may be your own.

            • DrS says:

              This is real dumb. Why not just stop everyone then? They might be drunk!

              Hell, you might be drunk right now!

              • Manta says:

                What you are proposing is doable: there are Western countries where that is (more or less) what happens: the cops decide to stop all people in a certain place (usually, near nightclub or similar) and at certain time (usually, night) and test them for alcohol.

            • Brien Jackson says:

              This might be a matter of talking past each other: Searching the vehicle and pinching you for drugs isn’t the same thing as giving you a sobriety test to make sure you aren’t driving under the influence.

        • Snarki, child of Loki says:

          Hey, and if the NM cops get an anonymous tip that GoDeep is transporting drugs, they can just haul him in for a colonoscopy without anesthetic, and if they find nothing? No harm, no foul.

          Well, aside from the bill from the gastroenterologist, that is.

          • GoDeep says:

            Yes, because hauling you in and conducting a colonoscopy without anesthetic is exactly the same as pulling someone over and conducting a breathalyzer.

            • RepubAnon says:

              Once you give the police unlimited power to stop and frisk “suspicious” people, you get this:

              Court documents state that Eckert was driving out of Wal-Mart in Deming when he failed to fully stop at a parking lot stop sign. He was immediately pulled over.

              When he stepped out of his vehicle, an officer reported that he appeared to be clenching his buttocks. That fact was cited as probable cause to suspect that Eckert was hiding narcotics in his anal cavity. Officers obtained a search warrant and Eckert’s humiliating examination began at a nearby medical center.

              David Eckert Appears To Clench His Buttocks; Cops Order Enemas, Colonoscopy, X-Ray For Non-Existent Drugs

              • John Revolta says:

                It wasn’t EVEN a nearby medical center. They had to drive this guy 20 or 30 miles out of town (and out of their jurisdiction) because the local doctor refused to do it.

                • rea says:

                  More like 50 miles out of town–although it’s hard for people who do not know the area to grasp how unpopulated it is.

                • Aimai says:

                  Yes, thanks to all of you for bringing this up. It really can’t be stressed enough that once you come to the attention of the police you are quite likely to lose any/all rights to bodily integrity and autonomy. This case was horrific–and it wasn’t the first time the police had done this, IIRC.

                • herr doktor bimler says:

                  The Gila Regional Medical Centre does not seem to be succeeding particularly well with its novel business model of “Billing people for involuntary rectal searches”. However, the Yelp reviews for the place are hilarious.
                  I have been wondering how much business they get for ENT surgery these days after the Twana Sparks story.

                • rea says:

                  “For many years while she was performing Ear, Nose and Throat surgeries at the Gila Regional Medical Center, Respondent wrote messages and created artistic images on the bodies of many of her patients while they were under anesthesia without obtaining the patients’ prior written informed consent.”

                  ???!!!

                • rea says:

                  Although it probably doesn’t hurt their business all that much, considering that there aren’t many other facilities within a 200 mile radius.

                • herr doktor bimler says:

                  wrote messages and created artistic images on the bodies of many of her patients while they were under anesthesia without obtaining the patients’ prior written informed consent.

                  Yes, I like to imagine the informed-consent forms paperwork required if you do want a patient’s informed consent for writing messages and creating artistic images on his body while anaesthetised. This is probably veering from the topic of the thread, but if this is the medical culture at the Gila Regional Center — remember, Dr Sparks was welcomed back to her job — it explains why it became the go-to location for cops who wanted colonoscopies inflicted on people they didn’t like.

                • rea says:

                  How many accomplished ENT specialists are going to want to practice is Silver City, New Mexico?

        • Brien Jackson says:

          “Yes harm, yes foul. In the absence of actual reasonable suspicion that you’re committing a crime, police officers do not have the right to detain you as you’re going about your lawful business.”

          DUI checkpoints would like a word with you.

        • MAJeff says:
          If they pull you over and you pass your sobriety test, no harm, no foul.

          Yes harm, yes foul.

          Yup.

          • Aimai says:

            Given how badly behaved the Police are these days with people who are not properly deferential–see tasers, the use of–I’d be very wary of assuming that a seemingly routine stop for a breathalyzer wouldn’t often result in an escalation of police violence and arrests of ordinary people for “resisting” or “talking back” or “behaving suspiciously.” And I’m white and I’ve never had the police be anything but deferential to me. Teenagers, non white people, badly dressed people, poor people, and lots of other people have had experiences very different from mine.

            • Brien Jackson says:

              “Cops are assholes” isn’t really an argument in favor of making it easier to get away with drinking and driving. If we were discussing a very narrow case where only the authority to give a sobriety test was in question, I’d basically be okay with the idea that a cop can stop you on the basis of an anonymous tip…or just at random.

              • Aimai says:

                No, but its an argument in favor of not assuming that very loose stop and frisk rules don’t themselves have the potential to lead to harm to the people stopped.

                • GoDeep says:

                  Well, I would oppose S&F b/cs there it seems like the primary criterion is race. In this case you actually do have something other than the cop’s opinion.

                • DrS says:

                  Right. Traffic stops are never racially motivated.

                • GoDeep says:

                  If I did the rough math, DrS, I’d guess 30-40% of the traffic stops in my life have been racially motivated. But being black doesn’t make you immune to traffic accidents. Should I care abt traffic stops less b/cs I’m black? In all the times I’ve been stopped by the police I’ve never been injured, but I have been injured in car wrecks. You just gotta balance the risks.

                • Aimai says:

                  I’ve never been stopped by the police for driving in my life. I’ve been in two accidents but both were caused by other people who were not drinking. While accidents are often caused by people who have been drinking plenty of others are caused by young drivers or old who are simply not good drivers and who miscalculate, older drivers who are impaired by medication, speeding, texting, etc..etc..etc…

                  I’m not sure the belief that the police can stop lots of drunk driving, or even a significant amount of it, by randomly stopping cars, is probably the shark and kidnapped white woman error that tv shows cause us to make about danger in the US generally.

                  I’d also like to point out that if we were truly interested in preventing drunk driving there are many more choices we could make as a society that would affect that than asking the police to stop people at random while they are driving (which in itself is a bit dangerous). We could encourage local, neighborhood pubs that people walk to. We could change the drinking laws so that teenagers and young adults learn to drink responsibly at home rather than binge drinking in college. (My guess is that as younger people stop driving the whole drinking and driving thing is going to decline anyway).

                • DrS says:

                  One more policy we could do, which also has other benefits, is more physically extensive and longer hours for public transportation.

                • Brien Jackson says:

                  I don’t think “you can stop people to make sure that they aren’t driving drunk and imperiling the safety of other drivers but NOTHING ELSE” is that loose of a standard.

                • Aimai says:

                  None of us are talking about
                  1) stopping people who are driving erratically
                  2) giving them a breathalyzer.

                  We are talking about stopping people on the basis of a random tip, unconfirmed by any other source including police observation, and then searching the car. If the officers had given the guys a breathalyzer and let them go without searching the car we wouldn’t be talking about this at all.

                • rea says:

                  We are talking about stopping people on the basis of a random tip, unconfirmed by any other source including police observation, and then searching the car. If the officers had given the guys a breathalyzer and let them go without searching the car we wouldn’t be talking about this at all.

                  Well, except that if it hadn’t been an anonymous tip (or apparently, a tip the courts had to treat as anonymous because the prosecutor screwed up proving otherwise) there would be absolutely no question that this was a proper stop.

                  And the officers’ justification for the search (and explanation for not doing field sobriety tests) is that the truck smelled strongly of marijuana.

              • Este says:

                I wouldn’t. I want to be able to go about my business without cops stopping me.

            • GoDeep says:

              I have a pretty dim view of police, but I have a dimmer view of traffic fatalities.

              There’s a risk that tho innocent I’ll be pulled over by the cops, but there’s also a risk that I’ll be killed by a reckless driver. Of the two I’ll take my chances with the cops.

      • Oscar Goldman says:

        If police kick in your door without a warrant, search for evidence, and find none, no harm, no foul.

        • Brien Jackson says:

          The cops don’t need a warrant to pull you over.

          • Scott Lemieux says:

            But they do need reasonable suspicion, which in this case they absolutely did not have.

            • Brien Jackson says:

              Reasonable suspicion or probable cause? I’m not terribly bothered by the idea that cops might pull people over and check their sobriety based on uncorroborated tips, but obviously that should be the limit of their power here, and it shouldn’t give them leeway to search the vehicle or seize evidence they otherwise wouldn’t have probable cause to obtain.

              • rea says:

                Plain view (or plain smell) doctrine. If the stop is legal, the officers don’t thereby get to search the truck unless without searching, they subsequently observe something that gives them probable cause. So the issue becomes whether the officers acted legally when they put themselves in a position to smell the truck, which apparently reeked, which gave them probable cause to search.

        • GoDeep says:

          Yes b/cs kicking in your door is precisely the same as taking a breathalyzer. You’re so right.

          • Oscar Goldman says:

            A difference in degree only, my friend, not in kind. Both are seizures under the 4th Amendment. And the “no harm, no foul” argument is complete bullshit. I guess police should be able to pull you over willy-nilly, and if they find nothing, then it’s your problem? Sounds excellent!

          • Guggenheim Swirly says:

            GoDeep, under the “No Harm, No Foul” doctrine, what would be the legal rationale for drawing a line between the two? Because the only one you seem to be offering is that they’re obviously different because well duuuuuh. And that logic rarely holds for very long.

            • Brien Jackson says:

              “what would be the legal rationale for drawing a line between the two?”

              The balance of harm to the person pulled over vs. the risk to other people if he is indeed driving drunk seems like an obvious one.

              • Este says:

                No, that doesn’t hold up. If the police claim that they’re kicking in your door without a warrant or evidence because you might be a murderer, the “balance of harms” test that GoDeep is advocating still says it’s okay. After all, murder is worse than having your door kicked in, just like drunk driving fatalities is worse than being pulled over for a breathalyzer.

                The “balance of harms” logic fails because it neglects to take into account the systemic, cultural effects of sweeping police powers to invade citizens’ privacy and interfere with us as we go about our business. It looks at the “harm” involved as just about the door or the breathalyzer, and not about a culture where we’re all supposed to submit to police authority.

  4. jkay says:

    I should point out that radical Libertarians have introduced NOTHING on the issue in Congress despite lots of opportunity. So I think they’re liars on the issue.

    Except Gary Johnson got on the bully pulpit in his second term, bwaha, and got NOTHING.

    • rea says:

      Well, it’s not really clear that the US congress can do anything constructive on this issue, given that its a matter of constraining state law enforcement. The FBI doesn’t do a lot of traffic stops.

  5. GoDeep says:

    I’m actually ok with the majority ruling on this. The question to me is what % of anonymous tips are false/fabricated. Probable cause is a low standard. If you tell me that 51% of the time that anonymous tips are false/fabricated then, ok, Houston we have a problem. But while I’m willing to believe that 10-40% of anon tips are false/fabricated, its hard to believe that 51% are.

    • Joe says:

      false/fabricated is not the same thing … a person can assume something while it not being true. I don’t know many, but willing to guess a large number of anonymous calls are at least “false.” Anyway, the majority accepted a previous ruling that held you needed something more than an anonymous tip. It argued that that and other things here were enough.

    • Snarki, child of Loki says:

      Hey, and at least 51% of executions are of people that are guilty of SOMETHING, so no harm, no foul.

      If rights are subject to that kind of calculation, how about if Obama disarms 49% of the populace? That work for you?

    • DrS says:

      What makes 51% a proper standard?

    • Col Bat Guano says:

      So if only 10% are false and only 10% of the folks pulled over end up being arrested for something not related to the original tip(pot possession, library fines, etc), you’re okay with that 1% of folks being jailed?

      • GoDeep says:

        You mean am I ok with this guy here who was transporting 30lbs of drugs going to jail for transporting drugs even tho he got pulled over for a traffic issue? Ummm, yeah, I’m ok with that!

        Just because the cops pull you over for 1 thing doesn’t mean they have to turn a blind eye to other illegal behavior. That would be crazy. What possible rationale is there for ppl who commit crimes to go free?

        • Aimai says:

          IIRC Godeep’s father was a police officer and his mother (forgive me for mentioning this painful topic) was killed by a drunk driver. The thing is that both these pieces of personal history make for a very skewed assessment of the risks other people face from both Police Officers and Drunk drivers.

        • Col Bat Guano says:

          My rationale is that some people get pulled over and charged for whatever crime that can be pursued at far higher rates than other people. Blah people for instance.

    • Drew says:

      Jenny makes better points than you.

      What is it with you? Seriously? Trolls are kind of amusing but your slatepitch schtick is getting old.

    • L2P says:

      How in the world would you ever get an answer to that?

      Let’s say 60% of anonymous tips end up leading to arrests. That doesn’t mean that only 40% of the tips were “false.” It only means that somebody was doing something bad the rest of the time. The problem is that a large number of people are going to be doing something wrong just by accident.

      You obviously have no idea how many searches end up missing drugs altogether and ending up with a weapons charge. Or a probation violation. Or assault (for resisting the officers).

  6. Anonymous says:

    The heading of this post is misleading.

    As much as Scott would like to make this about the injustices of the drug war, it isn’t… and the commenters know it.

    The issue is about police powers and the constitution.

  7. snoey says:

    Last Thanksgiving AM we were westbound on the Pike when somebody in front of us seriously screwed up 3 separate times.

    My daughter called 911 gave them descriptions mileposts, etc – he was still in sight – she was then patched through to the state police who were waiting across from the Sturbridge barracks. They never asked who we were.

    He unfortunately sideswiped the SUV half a mile before that.

    I’d focus more on the overall low quality and 5 mile negative verification rather than the anonymous part. Can’t imagine what giving our names would have added.

    • Lee Rudolph says:

      They never asked who we were.

      Caller-ID.

      • Craigo says:

        Caller-ID.

        Unreliable.

        • Lee Rudolph says:

          I’ve never paid for it, so I wouldn’t know. But I have the impression that any unreliability it may have is chiefly (if not exclusively) due to spoofing. I think that police would find pardon for taking a cell-phone report of a traffic accident waiting to happen seriously; certainly it would be a stretch to assume someone had gone through the hoops needed to spoof caller ID just to frame someone, wouldn’t it?

    • TribalistMeathead says:

      I’ve called in reports of erratic driving many times over the years (so, so much easier now that we have a car with integrated Bluetooth) and I’ve never actually seen the driver get pulled over by the cops. Inevitably they exit the expressway after I get off the phone.

      Can’t imagine what giving our names would have added.

      They’d be able to contact you in case you needed to give testimony.

  8. jim48043 says:

    Anyone who still indulged the delusion that Breyer isn’t an badge-licker authoritarian ought be thoroughly disabused of it by his vote in this one.

    • Joe says:

      Maybe they are aware of his dissent in the no knock warrant case or supporting abortion rights or against the death penalty or something else and that “deluded” them.

    • Drew says:

      I often say that I pretty thoroughly disliked Clinton, but it was worth having him over another term of Bush if for no other reason than RBG. Breyer is preferable to any republican nominee (we won’t be getting another Souter or Stevens anytime soon) but his crim pro opinions almost completely obviate the good will I had for Clinton’s scotus appointments.

  9. Dave W. says:

    Although the rule of law being articulated here deals with anonymous tips, it appears the tip in this case was not, in fact, anonymous. From footnote 1 of the majority opinion:

    At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit. See 2012 WL 4842651, *6 (Cal. Ct. App., Oct. 12, 2012).

    It’s still a lousy ruling, but that fact does seem to make the actual behavior of the officers in this case a bit more reasonable to me.

    • Nobdy says:

      Really?

      Because they observed the guy for 5 minutes and he did nothing wrong, and then they pulled him over.

      What was the point of the observation?

      Scalia is right (I hate typing that). It was sensible for them to observe the driver but once he seemed to be driving perfectly why would they STILL trust the tip?

      • GoDeep says:

        Have you ever driven drunk? Are seen anyone whose drunk? Just because they “appear” sober does not, in fact, mean they are. You can be black out drunk and people not know it. Ergo, you could drive 5 min without swerving/driving recklessly and still be drunk.

        • Nobdy says:

          You haven’t answered what the POINT of the observation is then.

        • Bill Murray says:

          and therefore we should take every call made to 911 about cars and pull over the observed law abiding citizens just in case. Because of the children. or maybe they are black so that’s OK, too

        • Oscar Goldman says:

          Are you saying that good driving for five minutes has no tendency to show that the driver is not drunk?

          • Brien Jackson says:

            I’ll go ahead and admit that in my younger, dumber, days, I probably could have pulled off driving drunk in front of a cop without doing anything erratic for five minutes. I mean, unless you’re just sloshed, you can focus fairly well when there’s something like a cop behind you to make you really zone in on what you’re doing.

            • Nobdy says:

              Sure. And a hardcore alcoholic can drive normally with a BAC way over the legal limit.

              But the cops can’t arrest you on suspicion for that.

              I mean I could be carrying drugs or stolen property and just walking along minding my business normally. Does that give the cops the right to stop and frisk me?

              Oh wait. Don’t answer that…

              4th amendment you were beautiful.

        • MAJeff says:

          This reminds me of getting pulled over in an area drunk test or whatever the hell they call it when they stop every single car. I had been out with friends and acknowledged I’d had two beers in the previous three hours. They pulled me out and asked me to do the standard drunk tests, which I easily passed. The breathalyzer broke, so they couldn’t get a reading, but they were satisfied I was fine.

          During all of this, I managed to catch a glimpse of the officer’s clipboard report of me:

          “Nervous, talkative.”

          These characteristics, apparently, make one suspect. Well, why wouldn’t one be nervous about being asked to get out of the car by cops? Now, that’s suspect behavior?

          And, talkative? Jesus, I know they’ve never met me…but I got half my airport bar bill paid off on a Phillips Electronics expense account last week. I’m a chatty guy, but apparently my personality itself makes me suspect.

          Your attitude is part of this: everyone is suspect, always, everywhere, even when police surveillance provides no reason for them to be suspect, they are suspect.

          • T.E. Shaw says:

            Reminds me of the Catch-22 in speeding. If everyone else on the road is speeding, you are breaking the law if you speed but also behaving suspiciously if you are the only one going the limit.

            • MAJeff says:

              I once got pulled over because, according to the cops, I was “driving in too straight a line.”

              I think they were bored at 3:00am.

              • Nobdy says:

                To be fair you were driving on this road

              • DrS says:

                Too straight a line…classic intoxicated behavior.

              • GoDeep says:

                OMG, that’s so painfully arbitrary I almost have to laff at the Kafkaesque nature of it.

                • DrS says:

                  While arguing for stops that would be at least as Kafkaesque.

                  I’m impressed!

                • GoDeep says:

                  There’s a balancing test here, DrS. We balance the risk of traffic incidents against the cost of inconveniencing drivers. I certainly have been the victim of DWB, but even so I fear traffic accidents much more than the police. That’s not unreasonable.

                • DrS says:

                  I get that there’s a balancing test. Where you want to draw the balance is nuts though.

                  A standard that says that an anonymous tip provides, by itself, reasonable, articulate suspicion based on a “51% of tips are good” standard that you have pulled right out of your ass is insane.

              • Karen says:

                I was stopped in August 2007 for having an expired inspection sticker. (It expired in that July.). I also provided the officer with an expired driver’s license, car registration, and insurance card. Now, none of the things were more than a month out of date, but EVERY SINGLE ONE WAS EXPIRED. The police officer told me to drive to a local inspection sticker place and told me that I could renew my DL and car registration on-line. No ticket, not even a warning. I understand that 45-year-old suburban mothers going to their offices are the most law abiding people imaginable, but I’m also certain that a man with more melanin would not have been handled so gently.

                • Aimai says:

                  This reminds me of a talk that Mark Kleiman gave about a million years ago, when he was young, about the modern parole state. In the old days, he said, a good parole officer was one who kept his parolees out of prison by finding them jobs and reintegrating them into the community. But with the rise of the new prison industrial complex a “good” parole officer was one who took control of his prisoners in the time between their first incarceration and all their future ones and who “violated” them back into jail as fast as possible.

                  For unruly/nonwhite/workingclass or “look like you are going to piss off the officer” types of people a stop which causes them to find out that you have made some minor infraction becomes the way they “violate” you into prison because that’s where you are presumed to belong–its being out that is the anomaly, not being charged with stuff that is seen as strange.

        • T.E. Shaw says:

          “You can be black out drunk and people not know it. Ergo, you could drive 5 min without swerving/driving recklessly and still be drunk.”

          This is horrid reasoning. “Other drunk people at a party might not notice that you have progressed from drunk to black-out drunk. Ergo, you can drive 5 minutes while hammered and not break any traffic laws.”

          • GoDeep says:

            Who said anything abt drunk ppl not being able to tell? I’m talking sober ppl.

            I once was t-boned. When the cops came I told him I wanted the other guy tested. The cop said, “He doesn’t look drunk to me.” I told him I didn’t care I wanted him tested anyways. Cops test him. He blew .11.

            • DrS says:

              Ahh, of course! The personal anecdote!

              Guys, one time something happened to GoDeep and that’s the sum total of her take on it. Someone that caused an accident she was involved in was proven drunk after her suspicion, therefore every time she suspects that someone is drunk, they probably are, and the authorities should believe her.

              • jb says:

                In fairness, this is how GoDeep argues for everything.

                “I personally had a bad teacher, therefore we should adopt ridiculous and misguided “school reform” proposals.”

                “I personally was a victim of crime, therefore draconian and probably unconstitutional law enforcement policies are justified because they reduce crime.”

                etc.

                It’s like she’s incapable of recognizing that (a) her experiences are not universal, and (b) that just because a policy might have benefited her does not automatically make it a good policy!

                In fact, I’m starting to wonder if she’s the same person as ThrottleJockey, given how often they seem to use the same argumentative fallacies, among them the argument by anecdote.

                • Aimai says:

                  I’m pretty sure GoDeep says he’s a man. The rest of the analysis is spot on.

                • DrS says:

                  Right, I’ve always remembered the pat, personal anecdote. Maybe it’s bcs I’m slow, but I always thought of those as fictional, to support whatever insane policy was being offered. So this:

                  It’s like she’s incapable of recognizing that (a) her experiences are not universal, and (b) that just because a policy might have benefited her does not automatically make it a good policy!

                  Is exactly what hit me last night when I saw that anecdote. I’d been flipping the motivation for them the wrong way. The anecdotes don’t fit perfectly because they’re made up. They fit perfectly because that’s the only thing driving the policy proposal.

                  Speculation about TJ and GD being the same person started roughly 5 seconds after TJ started posting.

                  I’m pretty sure GoDeep says he’s a man.

                  I really thought that GoDeep claimed to be a woman. Perhaps I took away the wrong idea from the 42 year old 40 year feminist talk? I’m happy to use whichever set of pronouns he or she would prefer, regardless.

            • Oscar Goldman says:

              “I had a shitty experience behind the wheel of a car, therefore anyone who drives should have little to no protection against arbitrary traffic stops.”

        • Col Bat Guano says:

          So, you’re saying that no evidence is necessary to pull someone over for drunk driving?

          • rea says:

            Well, (1) the cops can stop you on the road if they have a reasonable, fact-based, articulable suspicion that you’re engaged in criminal activity (including a traffic violation). (2) at least in my state, to make you go through with field sobriety tests, they have to have a bit more–a reasonable, fact-based, articulable suspicion that you’re drunk. (3) to arrest you for drunk driving, they need still more–probable cause to beleive you were driving drunk–usually based on the results of field sobriety tests that have been determined to be reasonably reliable.

            • Arouet says:

              Except that in J.L. it was quite clear that an anonymous tip just describing where someone was located (as appears to be the case here) and a bare allegation of illegal activity is not sufficient to justify a search.

              I haven’t read this opinion yet, but how they got around that without overruling JL is beyond me.

          • DrS says:

            I think he’s saying that “no evidence of drunk driving” and “evidence of drunk driving” should both be considered “evidence of drunk driving”.

            • GoDeep says:

              No what I’m saying is that an anon tip should be treated as probable cause for a traffic stop. You’re not even arresting somebody at that point just talking to them and, at best, doing a breathalyzer. That’s just not that intrusive.

              • Yes it is.

                I was just at lunch with a woman who had an ex who used to like to do that sort of thing to her.

                • DrS says:

                  Yeah, there’s all sorts of mischief that assholes could cause with a rule like that, both private citizens and police.

                • GoDeep says:

                  The ex would phone in false tips, or make her take random breathalyzers?

                • That’s kind of funny if you’re an asshole.

                  Anyway, it seems pretty hard to track down a success rate for anonymous tips: police departments understandably don’t want to talk about those. But here’s a cite for non-drunk-driving tips:

                  An additional way to interpret this data, however, is that tips were more likely to be wrong—false or mistaken—when implicating blacks than when implicating whites, yet police are disproportionately likely to credit the latter tips. Benner has made a similar point in analyzing the project‟s data. “Another factor influencing the [low search] success rate,” said Benner, “may also be the reliability of information provided by anonymous tipsters and confidential informants.” “For example, with respect to the warrants issued in the three most frequently searched inner-city zip code areas, only around one in four (27%) of the warrants that were initiated by an anonymous tip was ultimately successful in finding its target.

                  So there’s a situation in which one in four tips pans out.

                • Snarki, child of Loki says:

                  Tell you what, GoDeep, post your car description, plate#, locality, etc., and we’ll see how well you really are okay with being on the receiving end of anonymous tips.

                  Hey, you can even get rid of all the drugs, firearms and dead bodies you store in your car first, because you’re forewarned!

              • Nobdy says:

                You have yet to explain the purpose of observing the driver for 5 minutes if the tip was enough. Were they hoping this probably drunk driver who had already run someone off the road would cause injury or death to innocents? Why wait and observe if the tip is enough? Isn’t it grossly irresponsible?

              • rea says:

                probable cause for a traffic stop

                Maybe the technical meanings are important only to lawyers (and cops and defendants)–but “probable cause” is the arrest standard. A traffic stop only requires a reasonable, articulable suspicion

              • Arouet says:

                How you can possibly think being stopped and forced to take a breathalyzer based on an anonymous tip is non-intrusive is beyond me, but maybe you should tell us your make/model/color of your vehicle and the jurisdiction you live so you can see if your belief holds up.

        • Jordan says:

          You can be black out drunk and people not know it. Ergo, you could drive 5 min without swerving/driving recklessly and still be drunk.

          Man, sometimes the teetotalers *really* show their inner convictions.

  10. rea says:

    Scalia says, “Be not deceived. Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule . . .”

    I really wish Scalia wouldn’t say things like this, at least when he’s on our side. It’s good snark, but bad judging. It leads to lower courts saying, “The rule in Navarette is . . . See Scalia, J dissenting.” A similar type comment by Scalia (being evil) has helped to decide a number of gay marriage cases for the side of good.

    As someone who sometimes does crimiinal defense law, I’ve got to spin this decision as not being so bad (and by that I mean, it’s bad, but I have to convince courts that it’s not so bad that my client loses). It does not get rid of the rule requiring corroboration of anonymous tips–it just finds corroboration on these particular facts. So, in cases where an anonymous or unidentified tipster reports reckless or erratic driving, the tip is sufficiently corroborated if vehicle described by the tipster is found where it was reported to be. We can sort of live with that . . .

    • Joe says:

      Scalia is like Brennan post-Warren — he can’t help himself & takes the exaggerated dissent route that makes for good theater but not good limited losses. The 10Cir. btw pointed out that citing Scalia/Roberts/Alito in Windsor is nice and all, but they were still DISSENTS. Lower courts citing dissents to tell us what USSC opinions mean is somewhat lazy.

  11. dp says:

    I hate, hate, hate having to agree with Scalia.

  12. Drew says:

    Jesus. Every once in a while, Scalia writes a great dissent. And I completely agree with him and it makes me feel really strange. Like his Hamdi dissent.

    • If nothing else, it should pretty definitively answer the “Stupid or Evil” question for him.

    • Joe says:

      His opinion in Hamdi was good but ultimately pretty limited given there weren’t going to too many U.S. citizens in his position. Meanwhile, he dissented in the GITMO cases generally when the average non-citizen was involved and when his vote would have mattered — Padilla — he joined the 5-4 majority w/o comment to allow a U.S. citizen to stay in limbo a few more years on a dubious technicality.

      Even here, most times, the police probably can find a reason to stop a car anyway.

    • Oscar Goldman says:

      You have to give him some credit. He’s been really good in certain areas of criminal law, especially in his Sixth Amendment cases. Recently he has come out strong in Fourth Amendment cases, but I thought he was turning the Fourth Amendment into a property rights amendment . . . until today.

      He is still, however, an asshole.

      • Nathanael says:

        I find it hard to give him credit after he threatened reporters, refused to recuse himself from cases where he had a personal interest, stole a Presidential election, and still claims to be a judge.

  13. RogerAiles says:

    “…but the State offers no evidence to suggest that the petitioners even did anything suspicious, such as suddenly slowing down, pulling off to the side of the road, or turning somewhere to see whether they were being followed.”

    Jaysus. If Fat Tony is suggesting any of those are cause for a stop, then he’s pissing on the Constitution, not preserving it.

    • rea says:

      If Fat Tony is suggesting any of those are cause for a stop

      He’s not, really–not his use of the word “even.”

      And of course, he’s not talking about cause for a stop. He’s talking about corroboration for the tipster, who if credible, provided the necesary reasonable articulable suspicion.

  14. Soliz says:

    [T]he Court curiously asserts that, since drunk drivers who see marked squad cars in their rearview mirrors may evade detection simply by driving “more careful[ly],” the “absence of additional suspicious conduct” is “hardly surprising” and thus largely irrelevant. Ante, at 10. Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxi-cated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist. See, e.g., A. Dasgupta, The Science of Drinking: How Alcohol Affects Your Body and Mind 39 (explaining that the physi-ological effect of a blood alcohol content between 0.08 and 0.109, for example, is “sever[e] impair[ment]” of “[b]alance, speech, hearing, and reaction time,” as well as one’s general “ability to drive a motor vehicle”). Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again—and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.

  15. William Berry says:

    This case reminds me of a sub-plot of the Soderberg picture, “Traffic”. The Mexican general was going all out to destroy a powerful drug cartel because he was on the pay-roll of a rival cartel.

    The best that can be said for the cops in this case is that they probably didn’t realize they were doing the work of another drug dealer— the one who made the call in the first place.

  16. DAS says:

    Interestingly, on the same day SCOTUS made this decision, the big story in the NYC area later that night was about a sore loser in an online game phoning in a tip that the winner was heavily armed. The media have decided it’s a thing and are calling it “swatting”. I don’t know if it’s actually a thing ((a quick search indicates it is a thing and not just media hype) or if it’s media hype, but will SCOTUS revisit its ruling in light of this recent event?

    Speaking of SCOTUS being oblivious to the real world, I wonder if in making a decision in the Aero case, SCOTUS will consider the fact that (especially since they’ve migrated many stations to UHF concurrently with the digital changeover) many of us in big cities (and also in rural areas) can’t just stick up an antenna in our apartments and get good TV reception. Aero exists because there is a demand for that service; if the networks want to meet that demand, then they should make their already existent (although in many cases restricted to cable subscribers) online offerings more readily available (perhaps for a small fee).

    Of course, this “it fills a need” argument could be made for Air B&B as well. I understand the legal and safety concerns about Air B&B’s operation, but before NY cracks down on it, will NY make sure that there are legal, safe and neighborhood friendly options for people to book cheap hotel rooms? E.g. expand youth hostels, etc.?

    • Aimai says:

      And how about this case (from Wonkette). Guy makes a twitter parody account about his local mayor. Mayor gets upset, finds out what the guy’s address is and: boom! This is a combination, it would seem to me, of all these various styles of cases: false tip, home invasion by the police, and then the arrest of the people in the home on other grounds.

      Mayor Ardis was outraged, outraged, by this violation of his pretend right to not be mocked on the interwebs. Police Chief Steve Settingsgaard is equally outraged; he is convinced that the perpetrator of this epic crime intended others to believe Mayor Ardis went on the Twitter with the specific purpose of comparing himself with Crack Smoking Mayor Rob Ford. And maybe they did, the account owners did originally use the mayor’s actual email address and link to the city’s web page, before later changing the account to indicate it was actually a parody. Or, maybe there’s an alternative explanation: comedy fail.
      Mayor Ardis and Police Chief Steve realized that they could not let such comedic twittering stand. What next? Satirical Facebook groups? Ironic Friendster profiles? A line needed to be drawn. Despite the fact that the account had been deleted by Twitter. Because how would other people know that NO ONE MOCKS Jim Ardis, unless there is an armed police response? Clearly, raiding the home of the alleged account owner was the only option and could never be construed as an over-reaction.
      Police Chief Steve knew what needed to be done. Seven armed police officers were sent to raid the house that tweets built. Because the pen (or keyboard) is mightier than the sword, but not mightier than the Glock Model 27s carried by Peoria police officers. It was touch and go, but the officers were able to subdue alleged twitterist Jacob Elliot. Probably because he didn’t know you could get arrested for mocking people on the internet. We assure you, that was not part of our esteemed Editrix’s pitch to her mommy-blogging minions, and we are now all chilled to the bone, waiting for Mayor Jim and Police Chief Steve to show up at our door with a battering ram.
      It’s nice to know Twitter is giving out IP addresses like candy, isn’t it?
      Elliot was arrested, although not for mocking the Mayor; turns out that’s not actually something you can get arrested for. Elliot was charged with allegedly possessing small quantities of marijuana. Officers arrested two of Elliot’s roommates, at their places of work, telling them that they could serve a year in jail for impersonating an official. Because you should always be held responsible for stupid shit your (allegedly) stoner roommate does on the intertubes.

      Read more at http://wonkette.com/547354/mocking-mayor-of-peoria-on-twitter-will-get-you-raided-arrested-for-drugs#ZQMmzBUhUHC1S2jz.99

      • jim, some guy in iowa says:

        just trying to balance people’s hurt feelings against the cost of inconveniencing parodists

      • rea says:

        It was even written up here a few years ago–there was a series of incidents involving rightist bloggers where someone was anonymously calling the police and reporting “shots fired, hostage situation” at their homes. That sort of thing can get someone killed . . .

    • Aimai says:

      Speaking about Airbnb, as someone who has used it, I would not say that the market niche Airbnb fills is cheap rooms in youth hostels. As far as I can see it fills something between a hotel room and a short term rental for individuals and families who wouldn’t be staying in a hostel at all. Or, apparently, prostitutes renting a space for a week or a month and using it in preference to a hotel room.

  17. […] More important is Navarette vs. California, which has real potential to do some long-term damage. In this case, a 911 caller reported an erratic driver, who was then pulled over and eventually convicted of transporting four bags of marijuana. The police had no probable cause to stop the driver except for that one anonymous phone call, but the Court upheld the conviction anyway. Justice Scalia is typically apoplectic in his dissent, but nonetheless makes some good points: […]

  18. […] More important is Navarette vs. California, which has real potential to do some long-term damage. In this case, a 911 caller reported an erratic driver, who was then pulled over and eventually convicted of transporting four bags of marijuana. The police had no probable cause to stop the driver except for that one anonymous phone call, but the Court upheld the conviction anyway. Justice Scalia is typically apoplectic in his dissent, but nonetheless makes some good points: […]

  19. shocked at how fast your blog loaded on my phone .. I’m not even using

  20. Howdy! This is myy first visit to your blog! We are a group of volunteers and starting a new project in a community iin the same niche.
    Your blog provided us useful information to work on.
    You have done a wonderful job!

  21. Woah! I’m really enjoying the template/theme of this site.
    It’s simple, yet effective. A lot of times it’s tough to
    get that “perfect balance” between superb usability and visual appeal.
    I must say that you’ve done a amazing job with this.

    Also, the blog loads very quick for me on Firefox. Excellent
    Blog!

    Here is my web-site … How To Treat a Boil At Home

Leave a Reply

You must be logged in to post a comment.

  • Switch to our mobile site