The Supreme Court heard oral argument yesterday in Navarette v. California, a case that tests the limits of when a police officer can conduct an investigative stop based upon an anonymous tip. The facts of the case, via WaPo VC’s Orin Kerr, are straightforward.
A 911 caller reported that he had just been run off the road while going southbound on Highway 1 near a specific mile marker by a silver Ford F150 truck with California license plate number 8-David-94925. Officers spotted the truck and pulled it over. The question in the case is whether the officers had lawful authority to pull over the truck based on the tip.
Had the caller identified himself, there would be no issue. For whatever reason, he didn’t, yet the police responded to the call nonetheless. The rule is similarly straightforward, that the cops can make a stop based on specific and articulable facts giving rise to reasonable suspicion that a person is engaged in a crime. The problem is that the holding in Florida v. J.L. is that anonymous tips are insufficient to give rise to reasonable suspicion in the absence of sufficient detail to overcome the inability to assess the credibility of the tipster.
Orin’s view is that the level of detail, the plate number, location of the offending pickup truck, was sufficient to corroborate the anonymous tip to give rise to reasonable suspicion. This is mentioned solely to explain his perspective, as it strikes me as nothing more than the typical smurfing of detail to give the impression of sufficiency when it’s as devoid of hard corroboration as the usual anon tip that wouldn’t suffice.
During argument, according to SCUOTUSBlog’s Lyle Denniston, a hypothetical was raised:
[The lawyer for the defendant was] led into a concession that maybe the Court would want to find a way to create an exception if the tipster had said that someone was driving into Los Angeles with an atomic bomb with the intent to explode it, or had said that he had seen a kidnapping in which a child was put into the trunk of a car that then drove off.
But even that concession was not acceptable to some; Justice Antonin Scalia said that, if [counsel for the defendant] were willing to make those exceptions, then the constitutional question was nothing but an argument about details, so where was the dividing line under the Fourth Amendment?
Mind you, the problem arises solely because the tip is anonymous. If the caller was to give a name and take responsibility for his observations, as one might expect if he saw a kidnapped child put into the trunk of a car, there would be no issue. The question, notably, doesn’t focus too hard on the question of why, given such monumentally serious crime, the caller would refuse to identify himself. This is a critical distinction.
Orin endeavors to do what didn’t happen at argument, provide a satisfactory answer to Justice Scalia:
Let me offer an answer to Justice Scalia’s question: The dividing line is the line between the doctrine of Terry v. Ohio and the doctrine of exigent circumstances. In Terry and later cases interpreting it, the Supreme Court created specific rules for when the police can make stops to investigate reports of criminal activity. The reasonable suspicion standard is the line the Court drew; it requires a particular threshold of information about a crime to justify a stop.
Exigent circumstances is a different branch of Fourth Amendment doctrine that applies to a different set of problems. The exigent circumstances doctrine recognizes that the police sometimes need to act quickly to prevent a future harm.
This response reflects a shocking, yet all too common, conflation of entirely separate 4th Amendment concepts.
In my view, the hypotheticals that were tossed around at oral argument were about exigent circumstances, not Terry stops. The reason that the police should be able to pull over a car based on an uncorroborated tip about a nuclear bomb or rescuing a kidnapped kid is that the police need to act immediately to stop the harm. The point of such a stop is to save lives, not to try to gather evidence about a criminal case.
No. No, no, no. One of the worst understood and applied exceptions to the Fourth Amendment is exigency, which has given rise to the talismanic “automobile exception” that police and, sadly, many judges, believe they can stop and search cars at will upon the skimpiest of excuses.
But Orin’s analysis conflates two distinctly separate issues: While the question raised in Naverette as to the sufficiency of an anon tip relates to the authority to make an investigative stop, a Terry stop, the exigency circumstances doctrine applies to the authority to conduct a search without first obtaining a warrant because exigency makes it untenable to get one, as the evidence will disappear or the vehicle will be driven away.
What exigency does not do is change the foundation required for the police to act. Indeed, the exigent circumstances doctrine does not come into play until a cop has probable cause to search. Not reasonable suspicion, as is the issue in Naverette to justify an investigative stop, but full-blown, actual, real McCoy probable cause.
You see, the exigent circumstances exception to the 4th Amendment does not eliminate the constitutional requirement that there be probable cause for a search, but rather the requirement that when there is probable cause, a search still cannot be conducted except upon a warrant from a neutral magistrate. The whole point of the warrant requirement is that it’s left to the judge to decide if probable cause exists, not to the cop on the road.
As it’s hard to imagine that Orin isn’t well aware of this, particularly since he cites and quotes from Missouri v. McNeely, I’m constrained to assume that he’s arguing for a brand new, never-before-heard-of, exception to the reasonable suspicion requirement for a Terry stop:
The point of such a stop is to save lives, not to try to gather evidence about a criminal case.
Aha! If so, then stop the car, free the kidnapped child, seize the Atomic Bomb, and don’t sweat suppression if it turns out that the cop lacked reasonable suspicion for having done so. You don’t have to give the child or the Atomic Bomb back if he was wrong. Problem solved.