The anonymous tipster revived
The anonymous tipster has always been the bastard child of law enforcement sources. The identified citizen informant is, of course, the gold standard; just about anything he says will be deemed reliable. The snitch -- somebody who operates in the criminal milieu and who trades information for money or leniency with his own case -- is a step down; there, the police have to make some showing that the informant is reliable, such as that he's proven reliable in the past.
The anonymous tip, however, is symbolized by the Supreme Court's 2002 decision in Florida v. J.L. There, the cops had received an anonymous tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun. The police went to the bus top, and lo and behold, there was a young black male in a plaid shirt; the cops frisked him, and found -- wait for it -- a gun.
The Court tossed the search, and the takeaway of many from that decision was that the police had to be able to corroborate some incriminating aspects of an anonymous tip. That takeaway pretty much goes away after the Supreme Court's 5-4 decision last week in Navarette v. California.
Back in August of 2008, the 911 operator for Humboldt County got an anonymous call that the caller had just been run off the road by a Silver Ford 150 pickup bearing a particular license plate. A California Highway Patrol officer picked up the truck and followed it for another five minutes. Although the cop didn't spot any traffic violations, he pulled the truck over nonetheless, and as he approached it, he smelled marijuana. That led to the discovery of 30 pounds of the demon weed, and the arrest of the driver and passenger.
In upholding the search, the majority first sets up a strawman and then knocks it down: the Court has refused to rule out the use of anonymous tips altogether -- I'm not aware that anyone has argued the contrary -- and so, as with most 4th Amendment questions, the issue is decided by the "totality of the circumstances." So what circumstances did the majority rely upon?
First, based on the caller's description of the vehicle, it decided that the caller was relaying her own observations, not repeating second-hand information. So far, so good. Second, by virtue of the fact that the police spotted the truck about 19 miles away from the location the caller reported, some 18 minutes after the call, "there is good reason to think that the 911 caller in this case was telling the truth." That's a good bit iffier. That would certainly be an indication that the caller had seen the vehicle, but at that point the police have no reason to believe that the underlying allegation -- that the other driver forced the caller off the road -- is true.
It gets worse. Even if the allegation were true, it would be difficult for this to form the basis for a stop. After all, an investigative stop requires reasonable suspicion that criminal activity is afoot, not that there was a past isolated incident of recklessness. Instead, the Court decides this is evidence that the driver of the truck was intoxicated. This, despite the fact that during the five minutes the cop followed the truck, he observed no indications of erratic driving.
Scalia's dissent, joined by Sotomayor, Kagan, and Ginsberg -- Breyer voted to uphold the search, and I'm going to strangle the next person who tells me that he's part of the Court's "liberal bloc" -- does a pretty good job of dismantling Thomas' opinion for the majority, but the bottom line is that the dissenters lost. What does Navarette portend for the future?
Nothing particularly good. The courts have generally been more willing to uphold stops based on anonymous tips in drunk driving cases, and while Navarette doesn't specifically carve out an exception for those kinds of cases, it certainly makes enough references to the dangers of drunk driving to reinforce that more lenient approach.
In fact, Navarette may lead to a narrowing of what constitutes an "anonymous" tip: the Court takes pains to note that improvements in the technology of the 911 system "has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity." Obviously, if you move a substantial number of calls from the "anonymous" category up to the "citizen informant" level, you've greatly expanded the ability of the police to make investigative stops on the basis of those calls.
After Navarette, I think you're going to have a hard time suppressing a search based on an anonymous tip in a drunk driving case. More worrisome, probably, is that the Court didn't limit its decision to those kinds of cases. It's pretty hard to come away from Navarette without thinking that the bastard child has gained a substantial measure of legitimacy.