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This is what Scalia COULD be...

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  • This is what Scalia COULD be...

    ...if he would stick to law instead of wandering off into politics and religion.

    SCALIA, J., dissenting


    No. 12–9490








    [April 22, 2014]


    The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that “an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver” provides without more the reasonable suspicion necessary to justify a stop. People v. Wells, 38 Cal. 4th l078, 1082, 136 P. 3d 810, 812, (2006). See also, e.g., United States v. Wheat, 278 F. 3d 722, 729–730 (CA8 2001); State v. Walshire, 634 N. W. 2d 625, 626–627, 630 (Iowa 2001). Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J. L., 529 U. S. 266 (2000), and Alabama v. White, 496 U. S. 325 (1990). Be not deceived.

    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. I would reverse the judgment of the Court of Appeal of California.


    The California Highway Patrol in this case knew nothing about the tipster on whose word---and that alone---they seized Lorenzo and José Prado Navarette. They did not know her name.1 They did not know her phone number or address. They did not even know where she called from (she may have dialed in from a neighboring county, App. 33a–34a).

    The tipster said the truck had “[run her] off the roadway,” id., at 36a, 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. “[E]liminating accountability . . . is ordinarily the very purpose of anonymity.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 385 (1995) (SCALIA, J., dissenting).The unnamed tipster “can lie with impunity,” J. L., supra, at 275 (KENNEDY, J., concurring). Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?

    The question before us, the Court agrees, ante, at 8, is whether the “content of information possessed by police and its degree of reliability,” White, 496 U. S., at 330, gave the officers reasonable suspicion that the driver of the truck (Lorenzo) was committing an ongoing crime. When the only source of the government’s information is an informant’s tip, we ask whether the tip bears sufficient “‘indicia of reliability,’” id., at 328, to establish “a particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U. S. 411, 417–418 (1981).

    The most extreme case, before this one, in which an anonymous tip was found to meet this standard was White, supra. There the reliability of the tip was established by the fact that it predicted the target’s behavior in the finest detail---a detail that could be known only by someone familiar with the target’s business: She would, the tipster said, leave a particular apartment building, get into a brown Plymouth station wagon with a broken right tail light, and drive immediately to a particular motel. Id., at 327. Very few persons would have such intimate knowledge, and hence knowledge of the unobservable fact that the woman was carrying unlawful drugs was plausible. Id., at 332. Here the Court makes a big deal of the fact that the tipster was dead right about the fact that a silver Ford F-150 truck (license plate 8D94925) was traveling south on Highway 1 somewhere near mile marker 88. But everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information. Unlike the situation in White, that generally available knowledge in no way makes it plausible that the tipster saw the car run someone off the road.

    The Court says, ante, at 5, that “[b]y reporting that she had been run off the road by a specific vehicle . . . the caller necessarily claimed eyewitness knowledge.” So what? The issue is not how she claimed to know, but whether what she claimed to know was true. The claim to “eyewitness knowledge” of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.

    The Court finds “reason to think” that the informant “was telling the truth” in the fact that police observation confirmed that the truck had been driving near the spot at which, and at the approximate time at which, the tipster alleged she had been run off the road. Ante, at 6. According to the Court, the statement therefore qualifies as a “‘present sense impression’” or “‘excited utterance,’” kinds of hearsay that the law deems categorically admissible given their low likelihood of reflecting “‘deliberate or conscious misrepresentation.’” Ibid. (quoting Advisory Committee’s Notes on Fed. Rule Evid. 803(1), 28 U. S. C.App., p. 371). So, the Court says, we can fairly suppose that the accusation was true.

    No, we cannot. To begin with, it is questionable whether either the “present sense impression” or the “excited utterance” exception to the hearsay rule applies here. The classic “present sense impression” is the recounting of an event that is occurring before the declarant’s eyes, as the declarant is speaking (“I am watching the Hindenburg explode!”). See 2 K. Broun, McCormick on Evidence 362 (7th ed. 2013) (hereinafter McCormick). And the classic “excited utterance” is a statement elicited, almost involuntarily, by the shock of what the declarant is immediately witnessing (“My God, those people will be killed!”). See id., at 368–369. It is the immediacy that gives the statement some credibility; the declarant has not had time to dissemble or embellish. There is no such immediacy here. The declarant had time to observe the license number of the offending vehicle, 8D94925 (a difficult task if she was forced off the road and the vehicle was speeding away), to bring her car to a halt, to copy down the observed license number (presumably), and (if she was using her own cell phone) to dial a call to the police from the stopped car. Plenty of time to dissemble or embellish.

    Moreover, even assuming that less than true immediacy will suffice for these hearsay exceptions to apply, the tipster’s statement would run into additional barriers to admissibility and acceptance. According to the very Advisory Committee’s Notes from which the Court quotes, cases addressing an unidentified declarant’s present sense impression “indicate hesitancy in upholding the statement alone as sufficient” proof of the reported event. 28 U. S. C. App., at 371; see also 7 M. Graham, Handbook of Federal Evidence 19–20 (7th ed. 2012). For excited utterances as well, the “knotty theoretical” question of statement-alone admissibility persists---seemingly even when the declarant is known. 2 McCormick 368. “Some courts . . . have taken the position that an excited utterance is admissible only if other proof is presented which supports a finding of fact that the exciting event did occur. The issue has not yet been resolved under the Federal Rules.” Id., at 367–368 (footnote omitted). It is even unsettled whether excited utterances of an unknown declarant are ever admissible. A leading treatise reports that “the courts have been reluctant to admit such statements, principally because of uncertainty that foundational requirements, including the impact of the event on the declarant, have been satisfied.” Id., at 372. In sum, it is unlikely that the law of evidence would deem the mystery caller in this case “especially trustworthy,” ante, at 6.

    Finally, and least tenably, the Court says that another” indicator of veracity” is the anonymous tipster’s mere” use of the 911 emergency system,” ante, at 7. Because, you see, recent “technological and regulatory developments” suggest that the identities of unnamed 911 callers are increasingly less likely to remain unknown. Ibid. Indeed, the systems are able to identify “the caller’s geographic location with increasing specificity.” Ibid. Amici disagree with this, see Brief for National Association of Criminal Defense Lawyers et al. 8–12, and the present case surely suggests that amici are right---since we know neither the identity of the tipster nor even the county from which the call was made. But assuming the Court is right about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the anonymous caller was aware of that fact. “It is the tipster’s belief in anonymity, not its reality, that will control his behavior.” Id., at 10 (emphasis added). There is no reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable.2


    All that has been said up to now assumes that the anonymous caller made, at least in effect, an accusation of drunken driving. But in fact she did not. She said that the petitioners’ truck “‘[r]an [me] off the roadway.’” App. 36a. That neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk. The most it conveys is that the truck did some apparently nontypical thing that forced the tipster off the roadway, whether partly or fully, temporarily or permanently. Who really knows what (if anything) happened? The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.

    But let us assume the worst of the many possibilities: that it was a careless, reckless, or even intentional maneuver that forced the tipster off the road. Lorenzo might have been distracted by his use of a hands-free cell phone, see Strayer, Drews, & Crouch, A Comparison of the Cell Phone Driver and the Drunk Driver, 48 Human Factors 381, 388 (2006), or distracted by an intense sports argument with José, see D. Strayer et al., AAA Foundation for Traffic Safety, Measuring Cognitive Distraction in the Automobile 28 (June 2013), online at sites/default/files/MeasuringCognitiveDistractions.pdf as visited Apr. 17, 2014, and available in Clerk of Court’s case file). 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. 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. I have no basis for that except my own guesswork. But unless the Court has some basis in reality to believe that the proportion is many orders of magnitude above that---say 1in 10 or at least 1 in 20---it has no grounds for its unsupported assertion that the tipster’s report in this case gave rise to a reasonable suspicion of drunken driving.

    Bear in mind that that is the only basis for the stop that has been asserted in this litigation.3 The stop required suspicion of an ongoing crime, not merely suspicion of having run someone off the road earlier. And driving while being a careless or reckless person, unlike driving while being a drunk person, is not an ongoing crime. 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.

    In sum, at the moment the police spotted the truck, it was more than merely “possib[le]” that the petitioners were not committing an ongoing traffic crime. United States v. Arvizu, 534 U. S. 266, 277 (2002) (emphasis added). It was overwhelmingly likely that they were not.


    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, 392 U. S. 1 (1968), 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 reason- able-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, Whren v. United States, 517 U. S. 806, 810 (1996), 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. Cf. Arvizu, supra, at 270–271, 277 (concluding that an officer’s suspicion of criminality was enhanced when the driver, upon seeing that he was being followed, “slowed dramatically,” “appeared stiff,” and “seemed to be trying to pretend” that the patrol car was not there). 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.

    A hypothetical variation on the facts of this case illustrates the point. Suppose an anonymous tipster reports that, while following near mile marker 88 a silver Ford F-150, license plate 8D949925, traveling southbound on Highway 1, she saw in the truck’s open cab several five-foot-tall stacks of what was unmistakably baled cannabis. Two minutes later, a highway patrolman spots the truck exactly where the tip suggested it would be, begins following it, but sees nothing in the truck’s cab. It is not enough to say that the officer’s observation merely failed to corroborate the tipster’s accusation. It is more precise to say that the officer’s observation discredited the informant’s accusation: The crime was supposedly occurring (and would continue to occur) in plain view, but the police saw nothing. Similarly, here, 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,” ante, at 8, strongly suggests that the suspected crime was not occurring after all. The tip’s implication of continuing criminality, already weak, grew even weaker.

    Resisting this line of reasoning, the 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 intoxicated 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 physiological 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.

    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.
    This is a scholarly and well-reasoned dissent.
    "Since the historic ruling, the Lovings have become icons for equality. Mildred released a statement on the 40th anniversary of the ruling in 2007: 'I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, Black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.'." - Mildred Loving (Loving v. Virginia)

  • #2
    Apparently it's what Scalia is...
    Not where I breathe, but where I love, I live...
    Robert Southwell, S.J.


    • #3
      Originally posted by phillygirl View Post
      Apparently it's what Scalia is...

      Although it is gotten more and more rare.

      I really am looking forward to what he has to say in the Hobby Lobby case. I would bet Lorne Greene he is not even remotely consistent with other decisions he has written.
      Colonel Vogel : What does the diary tell you that it doesn't tell us?

      Professor Henry Jones : It tells me, that goose-stepping morons like yourself should try *reading* books instead of *burning* them!