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.