I realize that the last update was only a few months ago, but I have updated my traffic stops paper again. It now includes a discussion of the United States Supreme Court’s decision in Navarette v. California, __ U.S. __, 134 S.Ct. 1683 (2014) (holding that a motorist’s anonymous 911 call reporting that a particular vehicle had run her off the road provided reasonable suspicion to stop the vehicle for DWI). Of course, I also blogged about that case here. The complete paper is available here. As always, it is a free PDF.
Tag Archives: navarette
Updated Traffic Stops Paper Now Available
Supreme Court Rules that Anonymous Tip Provides Reasonable Suspicion of Impaired Driving
The Supreme Court just decided a case that significantly changes North Carolina law regarding whether a traffic stop can be made based on an anonymous 911 call alleging bad driving. The case is Navarette v. California, 572 U.S. __ (2014). The full opinion is here. This post summarizes the ruling and considers its implications for North Carolina.
Facts. A California woman called 911 and reported that a silver Ford pickup had run her off the road. She gave the vehicle’s plate number and stated that the vehicle was traveling south on a particular highway. Shortly thereafter, a highway patrol officer located the truck on the named highway and pulled it over. As the officer approached the truck, he smelled marijuana. He searched the truck, found 30 pounds of marijuana in the bed, and arrested the truck’s occupants.
Lower court proceedings. The occupants were charged with drug offenses. They moved to suppress the marijuana, contending that the initial stop was not supported by reasonable suspicion. It’s not completely clear whether the 911 caller gave her name, so the trial court treated the report as an anonymous tip, but ruled that it was reliable enough to provide reasonable suspicion. The defendants pled guilty and appealed the suppression ruling. California’s appellate courts affirmed. The Supreme Court agreed to review the case.
Majority opinion. The Court affirmed, dividing 5-4. Justice Thomas wrote the majority opinion. He stated that anonymous tips alone seldom provide reasonable suspicion, but that “under appropriate circumstances,” they may do so. Why did this tip pass muster? First, the Court concluded that the tip was reliable, for the following reasons:
- The caller provided her basis of knowledge, i.e., explained how she came to know about the dangerous driving: she “necessarily claimed eyewitness knowledge” when she stated that the truck ran her off the road.
- The call was contemporaneous with the dangerous driving, which made the report “especially reliable” and unlikely to be fabricated.
- The report came via the 911 system, which “has some features [like recording and caller ID] that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.”
Having concluded that the tip was likely accurate, the Court then ruled that it provided reasonable suspicion that the driver of the pickup was impaired. Justice Thomas wrote that running another vehicle off the road “suggests lanepositioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues.”
Dissent. Justice Scalia wrote the dissent, characterizing the majority opinion as a “freedom-destroying cocktail” of errors. He first argued that the tip was not reliable, and could have been fabricated or embellished, given that it was anonymous and that the caller may well have been unaware of the call-tracing features of the 911 system. Then he contended that even if the tip was reliable, it couldn’t support reasonable suspicion because there are many explanations other than impaired driving for one vehicle running another off the road: “The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.” Further, he notes that the officers “followed the truck for five minutes” before stopping it and saw no signs of impairment. In his view, this “affirmatively undermined” whatever reasonable suspicion the tip offered.
Comparison to prior law. Our appellate courts have been quite skeptical of anonymous tips. For example, in the almost indistinguishable case of State v. Blankenship, __ N.C. App. __, 748 S.E.2d 616 (2013), a taxi driver placed an anonymous call to 911, reporting that a specific red Ford Mustang was “driving erratically [and] running over traffic cones.” The court of appeals found no reasonable suspicion for the subsequent stop of the Mustang, because the tip was anonymous, and there was no corroboration beyond the fact that the Mustang was, in fact, traveling in the direction reported by the caller. See also State v. Peele, 196 N.C. App. 668 (2009) (anonymous tip concerning possible impaired driving did not provide reasonable suspicion, even with officer’s observation of one incident of weaving). These rulings have been heavily influenced by Florida v. J.L., 529 U.S. 266 (2000) (ruling that an anonymous tip stating that a young black man in a plaid shirt at a specific bus stop was carrying a gun did not provide reasonable suspicion for a stop and frisk as it contained no predictive information). Navarette does not overrule J.L., but it represents a break from the approach our courts have taken.
Reactions and comments. It seems to me that the majority has the upper hand as to the probable accuracy of the tip. Sure, it’s possible that a 911 call like the one in this case could be a fabrication by a malevolent caller, designed to inconvenience an innocent motorist by having them stopped by police. But it’s likely that this sort of report will be made in good faith. As to whether such a tip provides reasonable suspicion of impaired driving, however, the dissent makes a powerful case, especially given the five-minute observation of faultless driving.
Whether or not the decision is right, the majority opinion leaves quite a bit to be desired, because it provides so little guidance in sifting sufficiently reliable tips from inadequate ones. How indispensable is the contemporaneity of the report? How contemporaneous is contemporaneous? How significant is the fact that the call was placed to 911? What if it was placed to a non-emergency number that also was subject to caller ID? What if the call concerned a completed offense instead of an ongoing one? (The Court expressly dodges the last question in footnote 2.) Rather than clarifying the law, the Court’s opinion muddies it, making it more difficult for officers and courts to apply.
Professor Orin Kerr has a more sanguine view of the opinion here at the Volokh Conspiracy.
Each year on the first Monday in October, the Supreme Court begins a new term. Today’s the first Monday in October 2013, so in this post, I’ll summarize several of the criminal cases that the Court will hear during the term that has just begun. This will be a selective preview rather than a comprehensive one: I’m not going to list all the criminal cases in which certiorari has been granted, and the Court likely will add a few additional cases over the next several months in any event.
As an aside, those interested in the non-criminal cases on the Court’s docket might enjoy this preview by appellate lawyer Howard Bashman, or this one by the Los Angeles Times, which argues that the term “gives the court’s conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion, as well as the political controversy over campaign funding.” Also, New York Magazine has just published a long interview with Justice Scalia. It’s a great read for those interested in the Justices’ personalities. High points include how Justice Scalia gets his news, what he thinks of the devil, and which of his opinions he views as the most courageous.
Back to business. Upcoming criminal law cases include:
- Kansas v. Cheever, where the Question Presented is: “Whether, when a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.” In other words, the Court is going to get into the thicket of how and to what extent the Fifth Amendment applies to court-ordered mental health examinations against a defendant. The SCOTUSBlog case page is here.
- Fernandez v. California, where the Question Presented is: “Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.” This is an issue that arises quite a bit in practice and it will be good to have a clear answer. The SCOTUSBlog case page is here.
- Paroline v. United States, where the Question Presented is: “What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?” That’s pretty opaque, but the case concerns the long-standing dispute over restitution in child pornography cases. The issue is whether, when a defendant is convicted of possessing images of a particular victim, that defendant may be ordered to pay restitution for all the harm done to that victim as a result of the victim’s portrayal in child pornography, or whether the defendant’s restitution liability is limited to the harm done to the victim as a result of the defendant’s personal possession of the image. The SCOTUSBlog case page is here.
- Navarette v. California, where the Question Presented is: “Whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.” The answer has the potential to be significant outside the limited context of traffic stops, but even if it is “just” a traffic stop case, it may have a major practical impact. (And it will definitely make it into the next version of my traffic stops paper.) The SCOTUSblog case page is here.
SCOTUSBlog has a complete list of merits cases for the term, together with the Question(s) Presented for each case, here. On the list but not summarized above are an interesting case or two involving substantive federal criminal law, and a follow-up to the Lafler and Frye cases about the effective assistance of counsel in plea bargaining. As always, it should be an interesting term. Stay tuned.