Supreme Court Further Guts The Fourth Amendment
Yesterday the Supreme Court greatly expanded the circumstances under which police can rely on anonymous tips.
In addition to its decision in the Michigan Affirmative Action case yesterday, the Supreme Court also handed down a decision in Navarette v. California, and in the process once again did damage the rights protected by the Fourth Amendment:
In a case from Northern California, a divided U.S. Supreme Court ruled Tuesday that police can pull a driver over based on an anonymous tip that he had forced another motorist off the road – evidence, the court said, that he might be drunk and dangerous.
The 5-4 ruling upheld the convictions of two brothers from Mendocino County whose pickup truck was stopped by the California Highway Patrol on state Highway 1 in August 2008 after another driver called 911 to report that the pickup had just run her off the road.
After following the truck for five minutes, an officer pulled the driver over, smelled marijuana, and found 30 pounds of the drug in the truck bed, the court said. The driver, Lorenzo Prado Navarette, and his brother and passenger, Jose, pleaded guilty to transporting marijuana and were sentenced to 90 days in jail. They appealed, claiming the officer had no legal grounds for the stop.
California courts upheld the convictions, but the Supreme Court granted review to address two issues: whether an anonymous, uncorroborated 911 call is reliable enough to justify a vehicle stop, and whether being forced off the road is a sign that the other driver poses an ongoing danger, allowing police to stop the vehicle without any other evidence of wrongdoing.
The majority, led by Justice Clarence Thomas, answered yes to both questions.
The caller’s description of the pickup and its license number, her use of the emergency calling system, and the CHP’s ability to locate the suspect vehicle 18 minutes after the 911 call were all indications that the information was reliable, Thomas said.
Running another vehicle off the road, he said, “suggests lane-positioning problems, decreased vigilance, impaired judgment,” all signs of drunken driving.
Dissenters, led by Justice Antonin Scalia, said anonymous accusations are inherently doubtful, and the caller in this case gave no indication that the other driver was drunk.
“The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian,” Scalia said. Even if the driver was acting recklessly or intentionally, he said, intoxication was an “unlikely reason,” and far too improbable to justify a vehicle stop.
“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference,” said Scalia, joined by the more liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Thomas was joined by Chief Justice John Roberts and fellow conservatives Anthony Kennedy and Samuel Alito, along with the more liberal Justice Stephen Breyer.
As Lyle Denniston notes, the majority opinion ended up giving police far more authority to act on the basis of anonymous tips than they had in previously:
The ruling in Navarette v. California, written by Justice Clarence Thomas, in part seemed to be based on prior understandings of when an anonymous tip gives police a valid basis for acting. But, as the opinion unfolded, it appeared that the Court had added significantly to police authority to conclude that they must act because a crime is in progress.
Here is the sequence that the Court followed to reach its result:
First, an anonymous caller telephoned police in Mendocino County, California, on the 911 emergency line to say that a driver had run her off the road. The caller described the truck and reported its license plate number.
Second, the fact that the tipster had used 911 added to its reliability, because new technology allows police to identify such callers, and go after them for false reports.
Third, the fact that the tipster had described a near-accident was enough to lead police to conclude that the other driver may well have been drunk.
Fourth, the suspicion of drunken driving, with the hazards that that poses for the traveling public, justified police in stopping the suspected driver even though, when actually following that truck, there was no erratic driving. The fact that there was no erratic driving was not proof that the driver was not drunk.
Fifth, on the suspicion of drunken driving, the officers were permitted, under the Fourth Amendment, to stop the vehicle. When they stopped it, they smelled marijuana, and they made a search that turned up four large, closed bags of marijuana in the truck.
All of those led ultimately to the conviction of two brothers, Lorenzo Prado Navarette and Jose Prado Navarette, on charges of possessing marijuana illegally. They pleaded guilty in a plea bargain, and were sentenced to ninety days in jail and to three years on probation. The conviction was upheld by California state courts.
And Ken White explains why this ruling is so novel, and so dangerous:
What’s novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip. Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that’s meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.
This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.
Perhaps the most interesting thing about the case is the fact that it placed Justices Thomas and Scalia on opposites sides:
The question before the Supreme Court was whether that single anonymous tip to 911 provided the police with reasonable suspicion to stop the truck. Writing for the majority, Justice Clarence Thomas ruled that the “the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” While this is a “close case,” Thomas acknowledged, it still passes constitutional muster. Joining Thomas in that judgment was Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.
Writing in dissent, Justice Antonin Scalia came out swinging against Thomas. “The Court’s opinion serves up a freedom-destroying cocktail,” Scalia declared, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It elevates an anonymous and uncorroborated tip above the bedrock guarantee of the Fourth Amendment. “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.” That state of affairs, Scalia declared, “is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.”
This isn’t the first time that Scalia and Thomas parted ways on Fourth Amendment cases. It also happened last year in Maryland v. King, in which a 5-4 majority that included Thomas upheld the right of states to collect DNA samples from criminal defendants before conviction without a warrant.
The Court’s decision in Navarette is remarkable in the fact that it make an anonymous tip about supposed erratic driving sufficient reason for a traffic stop even when the officer in question has not personally observed any such erratic driving. If the officer had received such a tip, located the vehicle, and then seen the vehicle driving erratically with his own eyes then, obviously, he would have been justified in making a stop. In this situation, though, the Court has ruled that a police office can base a traffic stop on information received from an anonymous person via another party (the 911 dispatcher) even though the officer has no reason to believe that the tipster is accurately describing the vehicle or even what happened. For all the officer knows, the tipster could have mistaken Navarette’s truck for another vehicle. Additionally, there might have been a perfectly innocent explanation for the supposed erratic driving, a supposition arguably supported by the fact that the officer did not personally observe any erratic driving even though he followed the vehicle for roughly five minutes. If someone is driving under the influence then, presumably, there would have been some evidence of it during that five minute period. However, even though the officer didn’t observe any such driving personally the Court has ruled that he can still initiate a traffic stop based on what someone he doesn’t know told someone else at some point in the past. That hardly qualifies as “reasonable suspicion.”
None of this should come as a surprise, of course. The Supreme Court has been chipping away at the protections of the Fourth Amendment, and providing more and more discretion to police and prosecutors, for nearly three decades now. The problem with cases like this, though, isn’t just the fact that they give police more authority to act outside the boundaries of the Constitution. These types of decisions also contribute to a general attitude among law enforcement that they can do whatever they wish so long as its in the name of “public safety. From reading the opinion, the Navarette brothers don’t sound like very good people, but that doesn’t mean they don’t have rights. The Court made a grave mistake here, and it’s one that we’re all going to pay for at some point.
Here’s the opinion: