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Anonymous tips and drunk driving

For those of you looking for confirmation of the late Chief Justice Renquist's observation that search and seizure law is something other than a seamless web, ladies and gentlemen, I give you last week's argument in Navarette v. California.

The facts were straightforward:  Somebody called the California Highway Patrol and said that a pickup truck had just run him off the road, and gave a description of the truck and the license number.  A patrolman saw the pickup, stopped it, and found four large closed bags of marijuana in the trunk bed.  Oh, when I say "somebody," that's what I mean:  the person who called in the report to the police was never identified.

This might make one wonder why the Court took the case in the first place.  Back in 2000, in Florida v. J.L., the Court had thrown out a search based on anonymous tip that a person was carrying a gun, holding that such a tip was insufficient to justify a Terry stop unless the police could corroborate some of the incriminating details of the tip. 

But J.L. did leave a bit of wiggle room.  The Court held that the facts of J.L. didn't require it to speculate on whether the circumstances of a particular case showed that the danger was so great -- say, a tip that a person was carrying a bomb -- that a stop based on anonymous tip would be permissible.  So that's what state and the Solicitor General argued in Navarette:  that the danger of drunk driving was so great that J.L.'s rule should be relaxed. 

And thus was the invitation to speculate extended, and happily accepted by the justices.  Roberts asked Navarette's lawyer about an anonymous tip that the caller saw "somebody on the street grab a young child, throw her in the trunk of the car, and then take off."  As Roberts noted, the police could follow that car for hours without observing anything corroborating the allegation.  The lawyer stuck to his guns, saying that even in that situation the police couldn't make a stop, prompting Kennedy to comment, "You get an A for consistency.  I'm not sure about common sense."  Scalia upped the ante, posing the hypothetical of "the tip is this person has an atomic bomb given him by Al Qaeda; he is driving it into the center of Los Angeles to eradicate the entire city." 

The lawyer for California similarly found himself thrown into the briarpatch of hypotheticals.  What if the caller had simply told the police that he observed another car being driving recklessly, without providing any other details, asked Sotomayor.  Roberts inquired whether an anonymous tip that the driver didn't have his seatbelt on would be sufficient to justify a stop.  Scalia posed the question of whether a simple call saying that a driver cut in front of the caller and was changing lanes too frequently would suffice for a stop.  And so it went.

Where it's going to wind up isn't clear.  Kagan focused on the fact that the courts have held that driving in public involves a lesser expectation of privacy, and analogized the case to sobriety checkpoints.  It's hard to argue, though, that stopping a car is a lesser intrusion of privacy than going up to a person on the street, which is what happened in J.L.  The Court might dice it up finely; several justices noted that the caller provided more information than just the description of the truck and its license number.  Or, the justices could fall back on the old standby, letting the reasonableness of the stop depend upon the "totality of the circumstances."  Of course, that puts the policeman in the situation of trying to figure out what a judge engaging in a post hoc weighing of amorphous factors is going to decide.  And that's why search and seizure law is something other than a seamless web.

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