Navarette v. California, USSC No. 12-9490, 4/22/14, affirming People v. Navarette, No. A132343, 2012 WL 4842651 (Cal. Ct. App. Oct. 12, 2013) (unpublished); Scotusblog page (includes links to the briefs and commentary)
Validating the rationale employed by the Wisconsin Supreme Court in State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, the U.S. Supreme Court upholds the stop of a vehicle based on a 911 caller’s report that the vehicle ran her off the road, even though the police officer who located and then followed the vehicle observed no improper or erratic driving.
An anonymous 911 caller told police dispatch that a silver pickup truck with plate number 8D94925 had run the caller off the road and that the truck was heading south on Highway 1. An officer located the truck just about where it would have been expected to be based on the time of the 911 call. The officer followed the truck for about five miles and then stopped it, even though he observed no improper or reckless driving. The stop led to the seizure of marijuana. (Slip op. at 1-2, 6, 10).
The Court analyzes the 911 caller’s tip in light of Alabama v. White, 496 U.S. 325 (1990), and Florida v. J.L., 529 U.S. 266 (2000). White upheld a stop based on an anonymous tip that accurately predicted future behavior, which showed the tipster had “inside information” and gave the tip indicia of reliability. 496 U.S. at 332. J.L., by contrast, found no reasonable suspicion based on a bare-bones tip about a person carrying a gun, as the tipster did not explain how he knew about the gun, did not suggest he had any special familiarity with the person’s affairs, and did not predict future behavior that could be corroborated to assess tipster’s reliability. 529 U.S. at 271-72. “Like White, this is a ‘close case’” (slip op. at 10), but the Court holds the tip here was sufficiently reliable based on three considerations:
- “By reporting that she had been run off the road by a specific vehicle … the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability. …. This is in contrast to J. L., where the tip provided no basis for concluding that the tipster had actually seen the gun. 529 U. S., at 271. ” (Slip op. at 5-6).
- The police located the truck where it would be expected based on the time of the tip, the place the tipster saw the truck, and the truck’s direction of travel. “That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.” (Slip op. at 6).
- The caller used the 911 emergency system. “A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity….” (Slip op. at 7).
Once the tip is reliable, the next steps are easy. Driving someone off the road creates reasonable suspicion of impaired driving (even if there is an innocent explanation for the conduct, such as fiddling with the radio or swerving to avoid a pothole). And, the reliability of the tip having been established, there’s no need for the officer himself to have witnessed any particular acts in support of reasonable suspicion. (Slip op. at 8-10). Thus, the Court concludes the tip was sufficient to provide reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road and the stop was reasonable under the totality of the circumstances. (Slip op. at 11).
Justice Scalia dissents, joined by Justices Ginsburg, Sotomayor, and Kagan. Sharply attacking the majority opinion point-by-point, the dissent concludes:
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. … (Dissent at 10).
The Court’s reasoning for why the 911 call was reliable is indistinguishable from the reasoning in Rutzinski, 241 Wis. 2d 729, ¶¶32-33, so to that extent the Court’s decision doesn’t change Wisconsin’s approach to this issue. Moreover, the Court doesn’t adopt the approach urged by the state (and the U.S., as amicus), which (as summarized here) was to allow a stop whenever there’s an anonymous tip by an eyewitness who reports a serious and immediate threat of public harm; Rutzinski also rejected “a blanket rule excepting tips alleging drunk driving from the … reliability requirement,” id. at ¶36.
Nonetheless, it is troubling that the Court relied on “technological and regulatory developments” that might allow tracing of 911 calls. Despite the disclaimer that this doesn’t mean tips in 911 calls are per se reliable (slip op. at 7), we may now have a de facto blanket rule when it comes to anonymous 911 calls with sufficient identifying information about the vehicle, some statement the tipster witnessed bad driving, and corroboration of innocent details, regardless of whether the tipster is telling the truth about the bad driving. As Justice Scalia puts it, “[a]ll the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped…. 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.” (Dissent at 10).
The Court’s “reasoning” as to why the caller was reliable may be close to Rutzinski, but the facts it applied the reasoning to are vastly different. The result, as the dissent points out, is a “new rule” that will be opportunistically utilized by law enforcement (and the courts) to expedite these pesky anonymous caller cases.
Rutzinski, was a “close call”, White was a “close call, and Navarette is a “close call”. I had at least one other “close call” OWI appeal recently. It seems like “close call” is shorthand for the “Drunk Driving Exception to the Constitution.”