Last month in the case of Navarette v California[i], SCOTUS (Supreme Court of the United States) held that the police can pull your car over based on an anonymous tip without any independent corroboration by the police that the driver or occupants of the car are engaging in illegal activity. While it is too early to see the full effects of this decision, I can clearly see this being used as a license to harass a motorist by someone who has a grudge against said motorist.
For example, if you know the make, model, and license plate of someone’s car and know the direction they are traveling, you can call in to every police station and patrol post on the way and accuse them of erratic driving and have them pulled over and detained. Possibly searched. At least, according to the majority opinion in Navarette. This is a frightening decision for those who are concerned about civil liberties.
Facts of the Case
In Navarette, someone called 911 to state that a truck had just run her off the road. The caller gave the color and make, model, and license plate of the truck and the direction of where the truck was traveling on a particular road. Police officers located this vehicle, followed it for five minutes and after witnessing no erratic driving or any other violation of the motor vehicle code, initiated a traffic stop. After approaching the vehicle and detecting an odor of marijuana, the officers searched the truck and located 30 pounds of marijuana. Charged with a serious felony of manufacturing and delivering marijuana, the defendants moved to suppress the evidence citing that the police had no reasonable suspicion that the occupants of the vehicle were doing anything illegal and an anonymous phone call[ii] to the police, absent any independent corroboration, is insufficient and does not give the police reasonable suspicion to stop the vehicle. The trial court denied the motion and the Court of Appeals upheld the decision. The Supreme Court refused to hear the case so defendants appealed to the United States Supreme Court.
Case Law on Fourth Amendment, Traffic Stops, and Anonymous Tips
The Fourth Amendment allows brief investigative stops (traffic stops) when there is a “particularized objective basis for suspecting the particular person of criminal activity.”[iii] Reasonable suspicion necessary to justify a stop “is dependent upon both content of information possessed by the police and its degree of reliability.”[iv] This standard takes into account the “totality of the circumstances”—the whole picture.[v] Although a mere “hunch” does not create “reasonable suspicion[vi], the level of suspicion that is required is “considerably less than proof of wrongdoing by a preponderance of the evidence and obviously less than is required for probable cause.[vii]
Anonymous Tip Cases
Before Navarette, the two main anonymous tip cases were Alabama v White[viii] and Florida v JL[ix]. In White, the police received a tip that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken tail light transporting cocaine. Officers observed just what the caller had indicated, stopped the vehicle, and found cocaine. The Court reasoned in this case that the specific information coupled with the police corroboration, equaled reasonable suspicion of criminal activity. The tipster demonstrated a specific familiarity with the acts of the accused which made it reliable. In JL, police received a tip that a black male with a plaid shirt at a bus stop was carrying a gun. The caller provided no further explanation of how he knew this information nor offered any predictions of the accused’s future behavior. The Court reasoned that there was no reasonable suspicion in this case because the tip wasn’t specific enough and too barebones to be reliable.
Applying White and JL to Navarette
The five justice majority (consisting of justices Thomas, Roberts, Alito, Kennedy, and Breyer) relied on the specificity of the tip (vehicle description and location) and the specific behavior the vehicle allegedly engaged in. Combining that with the assumption (based on the call) that the driver of the truck was intoxicated and the public policy to protect motorists and pedestrians from drunk drivers, held that this gave the officers reasonable suspicion to stop the vehicle. The caller would be dissuaded from making false or fake phone calls due to the tracking information the 911 call centers possess. The five-minute observation period was meaningless because 1) the officers already had reasonable suspicion based on the tip and 2) an intoxicated driver noticing police in his rearview mirror would undoubtedly drive more cautious and conform his driving to normal safety standards.
Justice Scalia’s Scathing Dissent
Justice Scalia, almost always siding with the conservative wing of the court, found himself siding with the liberal wing and authored the minority opinion. He notes that an anonymous tip normally needs to be corroborated and while the police had no reason to credit the tip, they had many reasons to doubt it. They didn’t know the tipster’s name or even the location from where she was calling. The fact that the tip was anonymous is suspicious by itself. Wouldn’t a victim of a crime want to identify themselves so they can later testify or further aid the police? “[E]liminating accountability… is ordinarily the very purpose of anonymity.”[x] The unnamed tipster “can lie with impunity.”[xi]
In White, the caller predicted the target’s behavior in such fine detail that it could only have been known by someone familiar with the target’s business as very few people would have such intimate knowledge. In Navarette, the knowledge provided by the caller was generally available. Anyone on the same road that day would have been able to identify the color, make and model of the car, license plate, and direction of travel. The issue, after all, is not how she knew the information she claimed to know, but whether or not what she claimed to know was true.
Nothing from the tip asserted or even suggested the driver was intoxicated. At most, it conveyed that the truck did something atypical. The truck could have been swerving for a number of reasons other than intoxication—distracted by an unruly child, avoiding a pothole, animal, or pedestrian, cell phone distraction… The fact that the police followed the truck for five minutes and did nothing wrong in the time period was enough to dispel any belief (however weak) that the driver was drunk or continuing to engage in any unlawful behavior. Reasonable suspicion requires an ongoing crime. Driving while being a reckless or careless person is not ongoing like drunk driving.
SCOTUS has opened up a whole new wave for police stops. If a caller describes your car, traveling location, and accuses you of erratic driving, the police can stop your car and detain you. I do not think for a moment that this is what the Framers had envisioned when they drafted the Fourth Amendment. It strikes at the very heart of what the Bill of Rights and Fourth Amendment stands for. Like I stated earlier, this just gives license for people to have the police continually harass someone they have ought against. This ruling empowers the police and strips away at the very core freedom the Constitution seeks to protect—the right to be left alone from unwarranted government intrusion. The potential horror that this decision seeks to bring about will soon be unleashed.
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[i] 572 US _____ (2014)
[ii] The record was clear that the caller did give her name when calling in, but this information was neither preserved nor given to the officers responding. Subsequently, the caller’s identification was lost and was treated as an “anonymous tip” since the police that pulled the car over never was given the caller’s name nor were they aware that the caller had left her name at the time they initiated the traffic stop.
[iii] US v Cortez, 449 US 411, 417-418 (1981); Terry v Ohio, 392 US 1, 21-22 (1968).
[iv] Alabama v White, 496 US 325, 330 (1990).
[v] Cortez, supra at 417.
[vi] Terry, supra at 27.
[vii] US v Sokolow, 490 US 1, 7 (1989).
[viii] 496 US 325 (1990)
[ix] 529 US 266 (2000)
[x] McIntyre v Ohio Elections Comm’n, 514 US 334, 385 (1995).
[xi] JL, supra at 275.