Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?
Lower court opinion: People v. Lorenzo Prado Navarette, et al., No. A132353, 2012 WL 4842651 (Cal. Ct. App. Oct. 12, 2013) (unpublished)
This is a very significant Fourth Amendment case that could change the law in Wisconsin by limiting State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516. In a nutshell, the question is whether there is a greater latitude to act on an anonymous tip about dangerous driving as opposed to other kinds of criminal conduct.
Briefly, the facts of this case are that someone called police dispatch complaining that a silver pickup truck with plate number 8D94925 had run him (or her) off the road and that the truck was heading south on Highway 1. Shortly thereafter two officers spotted the truck, followed it for a time, and then stopped it, even though they observed no erratic or reckless driving. Cf. Rutzinski, 241 Wis. 2d 729, ¶7 (officer did not independently observe any erratic driving). The stop led the seizure of four large bags of marijuana.
The legal question posed by this case arises out of the Court’s remarks in Florida v. J.L., 529 U.S. 266, 272-74 (2000). That case held that an anonymous tip about criminal activity could not justify a stop and frisk without some independent corroboration of the reliability of the tipster’s claims. The anonymous tip in J.L. was that a young black man wearing a plaid shirt at a certain bus stop was carrying a gun. The police corroborated the innocent details–the bus stop, a young black man wearing a plaid shirt–but the tip provided no predictive information with which to test the informant’s knowledge or credibility. “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.”–and that was not enough. Id. at 271. The Court dismissed the argument that because of the dangers posed by guns there should be a “firearms” exception to the usual requirement of tipster reliability:
…[A]n automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms.
Id. at 271. But the Court didn’t stop there. It went on to suggest there might indeed be some situations where we could dispense with a showing the tipster was reliable:
The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam), and schools, see New Jersey v. T. L. O., 469 U. S. 325 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.
Id. at 273-74.
Where else is there a diminished expectation of privacy? Why, driving your car on a highway. And what kind of driving is analogous to carrying a bomb? Drunk driving, of course. Cf. United States v. Wheat, 278 F.3d 722, 730 (8th Cir. 2001) (“Indeed, a drunk driver is not at all unlike a bomb, and a mobile one at that.”). Ergo, a majority of courts–ours included, in Rutzinski–have carved out a kind of OWI (or reckless) driving exception to the anonymous tipster reliability rule, concluding that in light of the danger posed by impaired (or reckless) driving the need for an officer’s independent observation of possibly illegal conduct is unnecessary–or at least diminished, see Rutzinski, 241 Wis. 2d 729, ¶36 (rejecting a “blanket rule excepting tips alleging drunk driving from the … reliability requirement”). Instead of corroboration of predictive details that show the reliability of the tipster or the basis for his or her knowledge, these cases are satisfied with sufficient identifying information to get the right vehicle, an indication the tipster actually witnessed the bad driving, and a corroboration of the innocent details of the tip. See People v. Wells, 136 P.3d 810 (Cal. 2006). (A number of cases taking this approach are collected in our post on Rutzinski). A minority of courts reject this approach, however, and require something more to assure the reliability of the tip, such as independent observations by police corroborating the reckless or erratic driving. See, e.g., State v. Grayson, 336 S.W.2d 138, 143-46 (Mo. 2011); Nilsen v. State, 203 P.3d 189, 192 (Okla. Crim. App. 2009); Harris v. Commonwealth, 668 S.E.2d 141 (Va. 2008). The Supreme Court will now tell us which approach is the right one.