Exigency Doesn’t Mean What You Think It Does

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.


11 comments on “Exigency Doesn’t Mean What You Think It Does

  1. ryan

    I took Mr. Kerr to be describing the “community caretaker” exception, which we have in Va, which I believed required something like reasonable suspicion for a stop; the officer must show why he/she had reasonable suspicion the person is in need of police assistance. And that the “community caretaker” exception doesn’t allow a search, and is just about the initial stop. I think in Va it also may only apply to cars. So the cases I’ve read in Va on it are like a car drives kinda funny on an access road or a car parked alongside road starts and drives off, officer testifies “I didn’t pull him over for DUI, but because I thought he was lost.” In both those cases the Va courts said community caretaker wasn’t met as no reason to think person was lost etc.

    I don’t know if the community caretaker is a sub category of Exigent Circumstances or a distinct doctrine though.

    1. SHG Post author

      I’ve never heard of it referred to as the “community caretaker” exception, but as the public safety exception.

      1. ryan

        I’d never heard “community caretaker” till a few months ago either.

        As I read what kerr wrote again, i don’t think he was referring to it as he talks about preventing future harm, but it is this confusing doctrine that I believe requires something more like reasonable suspicion then probable cause, at least down here.

        1. SHG Post author

          What makes this difficult to figure is that in the real world, cops do stuff and then lawyers rationalize it afterward. This is all a cool legal fiction where we pretend to know what runs through a cop’s head as he acts and then find a pigeonhole in the law in which to stick it.

      2. ExCop-LawStudent

        We used the term as long as I can remember. SCOTUS first used the term in 1973, “Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973).

        The term is used extensively in Texas, so that may be part of it. See Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999) (covering vehicle stop); Laney v. State, 76 S.W.3d 524 (Tex. App.—Houston [14th Dist.] 2002) aff’d, 117 S.W.3d 854 (Tex. Crim. App. 2003) (covering warrantless entry into home).

  2. John Burgess

    I don’t think it takes a big brain to realize that anyone — were he so minded — could get all the information that anonymous call provided by just looking at the vehicle owned by the PITA neighbor who parks his car in the communal parking lot. Solve the PITA problem by making an anonymous call about what he ‘did’ on his way to work! Invent other details as required once you’ve got the car, color, make, and tag information in hand.

      1. jakee308

        But OHHHH so satisfying. (if you’re of that mind)

        With a soupcon of a thrill of whether you’re going to get caught or not.

  3. Thomas R. Griffith

    Sir, as I read the SJ posting, I immediately thought about the folks from coast to coast that have had SWAT Teams bust into their homes based on nothing more than an anonymous call that always turns out to be Fake. Media reporting on the famous victims as they ignore the rest unless someone is shot, or harmed by the police. *You published one fine example regarding a female judge drug out of a house in the cold on a fake call a while back.

    If & When a citizen assumes that he / she witnessed a crime in progress (home, auto, train or plan) and calls 911 without giving call back information or hangs up abruptly, any legitimate Law Enforcement agency should consider it as a hoax and refrain from swarming or pulling until a re-connection is made. How easy would it be to simply have a patrol car sit out of view of the alleged crime scene or just follow in order verify. Or just ignore Anonymous calls all together. If we allow the hoaxes to rule the cops by default, this will get very messy once they raid the wrong house that turns out to be a rigged house. Something about Due Diligence goes here along with common sense and other popular phrases used to justify the first rule. Thanks.

    1. SHG Post author

      It’s a fine line between a hoax and other potential problems. Not always easy to distinguish, and sometimes an anon tip is a real tip. But then, that’s why the Supremes created suppression.

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