Navarette v California - serving up freedom destroying cocktails with a sliver of patent falsity
When a people are stripped of their freedom it is generally done bit by bit until you realize that your freedom is lost. Pink Floyd sang it best in Goodbye Blue Sky, "Did you see the frightened ones? Did you hear the falling bombs? Did you ever wonder - Why we had to run for shelter - When the promise of a brave new world - Unfurled beneath a clear blue sky? - Pink Floyd, The Wall. Our hero, Justice Scalia, said it best in his dissent in the recent case of Navarette v. California, United States Supreme Court on April 22, 2014,
"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."
In Navarette, supra, an anonymous tipster called 911 and reported that she had been run off the road by a silver ford F-150 with a certain tag number. The 5 member majority opinion of the U.S. Supreme Court authored by Justice Thomas found that because there was a reasonable articulable suspicion for police to stop the car because: (1) the caller reported a specific vehicle and tag number; (2) a vehicle running another vehicle off the road is reasonable suspicion of drunk driving; (3) the caller had been run off the road; (4) the call was very soon after the accident and had indicia of reliability; (5) the call was made to 911; and, (6) the car was reported to be traveling south on the alleged highway 18 minutes earlier and was spotted 19 miles south of the accident location.
The Navarette Majority cited Alabama v. White, 496 U.S. 325 (1990) as a useful guide. In White, supra, an anonymous tipster told the police that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light. The tipster further asserted that the woman would be transporting cocaine. 496 U. S. at 327. The White Court found the tip passed muster because of the intimacy of the tip and the detail of future behavior involved. By contrast, the Navarette Majority cited Florida v. J. L., 529 U.s. 266 (2000) were the U.S. Supreme Court determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun. 529 U. S., at 268.
Justice Scalia pointed out in his dissent that: (1) the police knew nothing the alleged tipster that was run off the road; (2) they did not have her name; (3) she did not file an accident report; (4) this is no evidence that there was even an accident; (5) the excited utterance and present sense impression logic do not apply here to bolster credibility of the tip; (6) the fact that the call came in over 911 means nothing unless the caller knew she could be tracked down which she was not in this case if it is at all possible; (7) a single incident of reckless driving does not suggest that a driver is intoxicated or DUI at all; and, (8) worst of all, the police followed the driver for 5 minutes and observed not one traffic offense. Justice Scalia sliced and diced the majority's opinion in this final retort,
"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."