A Simple Rule, Slip-Slided Away

Until yesterday, we had a relatively clear rule for police to follow: an anonymous tip must be corroborated before it rises to the level necessary to seize a person.  Then the Supreme Court decided Navarette v. California.  Interestingly, the 5-4 majority opinion was written by Clarence Thomas, with the dissent penned by Nino Scalia. Now I realize that people think I’m loopy for not hating Nino as much as I should, but it’s cases like this that should remind us of why he’s so much fun on the Court.

The majority held that an anon tip, of the sort that once needed corroboration, doesn’t really.

By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

Another indicator of veracity is the caller’s use of the 911 emergency system. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

As Ken White (who has limited opportunity to write these days since he’s returned to the nunnery for a refresher course) explains:

Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about an innocent subject.

In this case, the CHP followed the “offending” car for five miles and saw no reckless driving, which in itself is quite remarkable. That’s what is meant by corroboration, not that the license plate of the car matched the license plate called in by the anon tipster.

Nonetheless, other commentators have embraced the wiggle room afforded the police. Orin Kerr at WaPo Conspiracy:

Justice Thomas writes, “under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspi­cion that the driver of the reported vehicle had run another vehicle off the road.” I think that conclusion is correct.

And at Crime and Consequences, Kurt Scheidegger writes:

If a motorist calls 911 and reports having been run off the road, is that sufficient cause for police to stop a vehicle fitting the caller’s description?  I would think so.

That’s as deep as Kurt’s analysis gets, and I sincerely hope he didn’t sprain anything getting there. In contrast, Nino Scalia writes in dissent:

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.

While the majority skirts the freedom-destroying cocktail by crafting its opinion as if corroboration of immaterial, non-incriminatory details is just as good as corroboration of material, incriminatory details. Nino ain’t buying:

Today’s opinion does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J. L., 529 U. S. 266 (2000), and Alabama v. White, 496 U. S. 325 (1990). Be not deceived. (Emphasis added.)

Those who take comfort in the amorphous “totality of the circumstances” excuse that’s pulled out whenever rules get in the way of a desired outcome seem to ignore one monumentally huge detail of this case:  the caller was anonymous.

Nobody forced the caller to refuse to give her name.  She chose to call 911 and report something, which is fine, but then refused to give her identity.  She picked anonymity.

The court, and supporters of the vagaries of rules that entitle police to stop people more rather than less, argue that the 911 system has a built-in safeguard these days that makes anonymity less anonymous.  Justice Thomas found this worthy of particular note. He misses the point, which finally explains that whooshing sound heard during oral argument before the Supremes.

The question isn’t whether technology has the capacity to locate someone on a cellphone, but whether the person making the report to police of another person’s conduct is being sufficiently truthful and accurate that they are willing to put their credibility behind it.  Without a horse in the race, the 911 call is little more than noise, no matter how many immaterial details match up.

Had the caller given her name, there would be no case for the court to decide, and no argument about whether the police had reasonable suspicion to stop the driver, who they followed for five miles without observing any infraction of the 7,395 rules of the road.  Under the “totality of the circumstances,” there is no circumstance more significant than the caller’s choice not to reveal her identity and be responsible for the seizure of another human being.


33 thoughts on “A Simple Rule, Slip-Slided Away

  1. Gideon

    If I recall correctly, the 911 caller did identify herself using her name to the dispatcher. The dispatcher did not relay the identity to the police officer.

    1. SHG Post author

      According to footnote 1, that was the claim, but the case proceeded as an anon tip:

      1 At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit.

      Since the ruling assumes the tip was anon, it muddies the waters to point out that that it may not have been, but for a failure to call a witness to the contrary. Or, the claim could have been wrong and that’s why no witness was called. Who knows? While this may well be another example of appellate courts dealing with a fantasy set for facts, that won’t stand in the way of the ruling doing harm.

    1. SHG Post author

      Absolutely. This is a gimme to game a stop, as if Whren wasn’t bad enough on its own. It makes you realize how fragile all this bullshit talk of law really is, when it all comes down to cheap, anonymous “allegations.”

      1. bill

        I know you all hate stupid IANAL comments but honestly, I’ve read the whole ruling (parts of it twice) along with Ken’ White’s post and Orin Kerr’s pieces so I at least tried to do my homework. How does anyone possibly think this won’t be Dropsy? I know you’re a drug dealer, I either have my buddy call in claiming you drove them off the road, or just skip it and pretend it was anonymous. The potential for abuse isn’t likely, it’s an absolute certainty. And now I’ll almost certainly get my hand slapped, but after Scott’s responses when someone was trying to revisit the Exclusionary rule – but doesn’t this effectively invalidate it with respect to vehicle searches? (Sorry if this is too much IANAL stupidity – if so, just delete it)

        1. SHG Post author

          The potential for abuse isn’t likely, it’s an absolute certainty.

          Stop hyperventilating. The potential for abuse is, and always has been, there. This is just another mechanism by which it can happen. It’s no more an “absolute certainty” than a thousand others means by which abuse occurs.

          Consider this: Cop was filing defendant for 5 minutes. Nothing happened. Cops pulls deft over, finds pot. Cop claims he observed deft swerved across double yellow lines twice. Never happened. See how easy that is?

          Is the opinion dangerously wrong? I think so. Does this make abuse an “absolute certainty”? Neither more nor less than a thousand other ways abuse can occur. It’s just a new way to game the rules.

          1. bacchys

            This isn’t the toppling of the Republic, certainly, but it is another chip out of wall protecting us from abusive officials. I don’t think the “hyperventilating” is quite as radical as you do, either, Scott.

            We live in a time when more and more officers have dash cams in their cruisers and cameras on their persons during a stop. I’ve seen at least one case already where a dash cam undercut an officer’s claims about why he stopped a vehicle: the “he crossed the white line” excuse is becoming more tenuous, though far from ended.

            This anonymous tipster, OTOH, isn’t something that can be avoided. If a cop- and most, thankfully, won’t take advantage of this- desires to pull someone over, he now has a ready tool to create the necessary conditions to lawfully do so even if the subject has the audacity to abuse a loophole in the law by obeying the traffic code while on camera.

            I don’t expect an epidemic (or even a rash) of cases to grow out of this, but in a Republic with millions of citizens and hundreds of thousands of cops, even a relative handful is a pretty big number. After this ruling, moreover, it’s even more important to be nice to an ex…

          2. Jon

            Isn’t there danger of abuse from /anyone/ now? Couldn’t “I saw Motorist swerve, and may be a danger” become the password to detain, with impunity, the Motorist unfortunate enough to travel a predictable route?
            I am curious if there is potential to take this and apply it to other scenarios; Citizen says “I smell pot” and cue police raid on any house downwind.
            I would like to think that presumed innocence and an assumption that the average citizen is not trained to assess the legality of a given situation (Grandma might confuse incense for opium) means the cops should actually observe a crime. If the cop chooses to lie at least there is potential of evidence of the lie.

        2. Corollax

          (IANAL, please delete if you feel this doesn’t improve the discussion.)

          Bill, it’s important to remember that procedural abuse isn’t necessarily the result of malice. It’s a natural human tendency to sacrifice procedure to get results. The officer in this case could have been motivated to protect citizens from a hazardous driver or from the dangers of drug abuse. Once the arrest is made, our public servants are tempted to rationalize improper procedure by outcome. And as evidenced by the majority opinion in this case, even our highest courts are not immune.

          Such is the nature of power. It’s easy to trust in authority when you’re the one wielding it. The “inconveniences” experienced by innocent citizens seem inconsequential compared to immediate results. It’s harder for the guilty to escape prosecution when the books are filled with byzantine statutes sufficient to jail even the most innocent among us.

          It’s good to be skeptical of authority. We shouldn’t sacrifice our freedoms for a higher conviction rate. But our public servants are humans, usually acting with good intentions. Scott encourages an appreciation for nuance so that these intentions don’t blind us to the more negative long-term consequences. And if we’re to stop this negative trend, we must understand what motivates it.

            1. Corollax

              It’d better be, since I just forfeited any chance of making it through jury selection.

              Jokes aside, I’m glad you felt my comment had value. For brevity, I’ll omit the parenthetical introduction from any subsequent posts. I hope you continue to find them useful.

            2. SHG Post author

              If you don’t tell the judge, I won’t. Seriously, I don’t care if you’re a lawyer or not, but you offered nuance, illumination and insight, and that’s always appreciated. Next time, can you give me some alliteration as well? I always love alliteration.

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  3. Carl H

    I thought when reading the opinion (I am not a lawyer) — much was made of the fact that people wouldn’t abuse the 911 system as ““technological and regulatory develop­ments” suggest that the identities of unnamed 911 callers are increasingly less likely to remain unknown.”

    I see this is addressed by footnote #1 but if I recall correctly there wouldn’t have even been the ability to confirm the call was made from within Humboldt County.

    “(c) Not only was the tip here reliable, but it also created reasonable
    suspicion of drunk driving.” — then why follow the truck for five miles? Why not pull over immediately? I find this a far way too large degree of latitude to afford the police.

    Is this not a perfect example of evaluating issues after the fact — e.g. because we found the marijuana therefore the stop was legal.

    Something doesn’t smell right to me.

  4. Carl H

    Well the alternative would be to judge the issue “ante hoc”, something I’m sure even Colonel Kurtz would agree is impossible, quantum mechanics aside. Five miles… Kinda curious about the radio traffic and whether a warrant could have been obtained but, again, I’m not a layer and do not even pretend to knoe the mechanics of such.

    Isn’t there a rule of thumb amongst defence lawyers along the lines of — if your client has more than a kilo of contraband then counsel will not win a suppression hearing. Also, in a capital case with a large ick factor there’s no such thing as reversible error?

    Thank you for letting my comments be posted, Mr Greenfield.

    1. SHG Post author

      I assume you’re responding to my earlier comment, and would urge you to use the “reply” button so that it makes some tiny bit of sense to other readers.

      Now, I didn’t say “judge” ante hoc, but rationalize post hoc. Entirely different, and despite my enjoyment of quantum mechanics, ruins your joke. And no there is no such “rule of thumb” as far as I know, and my experience is that it’s not accurate. As for posting your comment, no need to thank me. I just call ’em as I see ’em.

      1. Carl H

        You’re absolutely right, I should have focused on the words, “rationalisation” not “judge”.

        Thanks for setting me straight re: rule of thumb.

          1. Carl H

            Respectfully, sir, I’d like to thing I am less dumb now than when I started reading your blog.

            As to other; you have me there — doubtless safety guards on razors were perhaps invented for the likes of me.

      1. Fubar

        I moved it over …

        Dang! And I thought it moved there by quantum tunnelling.

        Come to think of it, quantum tunnelling would also explain how Mssrs. Lorenzo and Jose Prado Navarette’s truck both did and did not run off the road a vehicle driven by a person, probably but not necessarily a woman, who both anonymously and non-anonymously called police.

        What else could explain how in the subsequent decision a general observation of the truck’s location, which could have been made whether the event in question occurred or not, became indicia of reliability for the assertion that the event actually occurred, despite the responding officers’ observation of no subsequent consistent events?

        But wait! There’s more! What else can explain how the decision in their case both is and is not “a departure from [SCOTUS] normal Fourth Amendment requirement that anonymous tips must be corroborated”?

        Quantum tunnelling. That’s what explains it all!

        But for your confession that you moved the comment in question, a novel and revolutionary theory of jurisprudence based on Prof. Schrödinger’s probability model might have been both asserted and proved. Right here. On this very ‘blog.

        Alas! Your forthright observation has precluded such a paradigm shift in law despite your enjoyment and interest in the underlying science. But we can hope that Prof. Barleycorn will explain to us how to conduct future critical experiments upon our thumbs to establish the new legal rule. I would suggest that keeping them off the scales of justice would be a good start. But I am not a judge.

        I’ll go to my room now.

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