Navarette v. California, and Justice Scalia’s dissent

Today the Supreme Court handed down its decision on Navarette v. California, a case that concerns the reasonable suspicion clause of the Fourth Amendment.

Petitioners Lorenzo Prado Navarette and José Prado Navarette sued the state of California. In 2008 they were driving and were pulled over by California Highway Patrol. The officer pulled them over because their vehicle matched the description by a driver who called 911 to report that she was run off the road, and to report that the drivers were driving recklessly and possibly under the influence. The officer followed the vehicle for five minutes but did not find indications of drunk driving. They pulled the car over anyway. When one of the officers went over to talk to petitioners, he smelled marijuana, decided to search the truck, and found 30 pounds of pot. That charge was unrelated to the anonymous 911 tip. The petitioners argued that the tip could not establish reasonable suspicion for a search. The California Court of Appeals ruled against petitioners, who appealed to the Supreme Court.

The Supreme Court affirmed for the California Court of Appeals. Justice Thomas wrote the majority opinion, in a somewhat limited holding for the government: Reasonable suspicion takes into account the “totality of the circumstances,” and that in this case the 911 call was sufficient for the officer to make an arrest.

Police have now a newfound ability to rely on anonymous tips to conduct searches and seizures. The most important line is this in Justice Scalia’s dissent: “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.”

Of note are the wild hypotheticals offered by the justices during oral argument. Chief Justice Roberts asked minutes into the argument whether the police would be justified in stopping the vehicle if previous 911 callers said that the driver was throwing bombs out of the window, even when police haven’t observed the drivers throwing bombs. Justice Scalia afterwards upped the stakes, and brought in a nuke: What if someone called to report that the drivers had a nuclear bomb in the trunk and intended to detonate it in the center of Los Angeles?

Justice Scalia wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. Some of the most important lines:

Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.

The tipster said the truck had “(run her) off the roadway,” but the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous… When does a victim complain to the police about an arguably criminal act… without giving his identity, so that he can accuse and testify when the culprit is caught?

Who knows what (if anything) happened? The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.

Lorenzo might have been distracted by his use of a hands-free cell phone… or distracted by an intense sports argument with José… Or, indeed, he might have intentionally forced the tipster off the road because of some personal animus, or hostility to her “Make Love, Not War” bumper sticker. I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving.

In other words, in order to stop the petitioners the officers here not only had to assume without basis the accuracy of the anonymous accusation but also had to posit an unlikely reason (drunkenness) for the accused behavior.

The crime supposedly suggested by the tip was ongoing intoxicated driving, the hallmarks of which are many, readily identifiable, and difficult to conceal. That the officers witnessed nary a minor traffic violation nor any other “sound indici(um) of drunk driving,”… strongly suggests that the suspected crime was not occurring after all. The tip’s implication of continuing criminality, already weak, grew even weaker.

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.

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.

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity…

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.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.

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.