Generally the Forth Amendment allows brief investigative stops,Terry stops, only when there exists a particular and objective basis for suspecting criminal activity.
In 1990, in Alabama v. White, the U.S. Supreme Court discussed the weight an “anonymous tip” should be given in justifying a investigative stop. In that case the court held an anonymous tip, standing alone, did not provide the “reasonable suspicion” necessary to conduct a Terry stop. The Supreme Court expanded this narrow holding a decade later in Florida v. J.L. in which the court held an anonymous tip is an insufficient reason to conduct a Terry “investigative stop.” The tip received in J.L. case was that a “young black male” in a plaid shirt was carrying a gun at a bus stop. A subsequent Terry frisk revealed the individual indeed had a gun. Not enough, the court said. Even if an anonymous tip proves accurate, it does not satisfy the “reasonable suspicion” standard necessary to justify a Terry stop.
The problem with legal precedents is that they are often accompanied by a caveat. For example, the Supreme Court in White said under appropriate circumstances an anonymous tip could establish a “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigative stop.”
On April 22, 2014, the high court issued a significant ruling in Navarette v.
California in which it held that a California Highway Patrolman traffic stop of a truck driver he believed to be intoxicated did not violate the Fourth Amendment. This case began August 23, 2008 when a California Highway Patrol 911 operator in Mendocino County received a call from a CHP dispatcher in neighboring Humboldt County, who had just received an “anonymous tip” from a driver who said she had just been run off the roadway by another driver in a truck. The Mendocino County 911 dispatch team sent this information out to all CHP officers.
A CHP officer in the area responded by identifying a truck fitting the description and pulling the vehicle over. A second officer arrived at the scene almost simultaneously. Together, the two officers approached the truck and later testified in court that they detected the odor of marijuana emanating from the vehicle. An ensuing search of the truck revealed 30 pounds of marijuana. The officers arrested the driver and a passenger in the vehicle.
The defendant challenged the “investigative stop” on the basis that the officers lacked Terry’s requisite “reasonable suspicion” of criminal activity. The state trial court and the California appeals courts disagreed, finding the content of the anonymous 911 tip came from an eyewitness who was a victim of the reckless driving of the truck. The original officer’s description of the truck and the direction it was heading provided enough corroboration to make the anonymous 911 tip sufficiently reliable to justify the investigative stop.
The court distinguished this particular anonymous 911 tip from the average anonymous tip because the tipster reported she had been run off the highway by another vehicle. In other words, the tip came from an eyewitness who described a specific vehicle as the lawbreaker. The Supreme Court also observed that the “short time between the reported incident and the 911 call suggests that the caller had little time to fabricate the story. And a reasonable officer could conclude that a false tipster would think twice before using the 911 system, which has several technological and regulatory features that safeguard against making false reports with immunity.” In effect, an officer could reasonably suspect that the driver of the truck was driving while impaired on alcohol or drugs solely on the basis of the anonymous tip.
And here’s where we part company with the high court. The officer did not witness the reckless driving conduct of the truck. In fact, the officer did not see the truck engage in any suspicious behavior, much less unlawful conduct. The court, however, said this alone “did not dispel the reasonable suspicion of drunk driving, and the officer was not required to surveil the truck for a longer period.”
What this decision now permits is that any driver, “ticked off” because another vehicle tailgated him, passed him too fast or too close, or drove too slow to prevent proper passing, can now anonymously give 911 a tip about an alleged law violation which can be used to provide a “sufficient indicia of reliability” to justify a traffic stop. In effect, every driver on the highway today is potentially at the mercy of some road rage lunatic wanting to “get even” over some imagined slight by another driver.
It is not often that Justice Antonin Scalia will join the three liberal female justices—Sotomayor, Ginsburg and Kagan—in a dissent but he did in this case. And we endorse the following reasoning he expressed in the dissenting opinion:
“The California Highway Patrol in this case knew nothing about the tipster on whose word—and that alone—they seized Lorenzo and Jose Prado Navarette. They did not know her name. They did not know her phone number or address. They did not even know where she called from (she may have dialed from a neighboring county).
“The tipster said the truck had ‘[run her] off the roadway,’ but the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous … Anonymity is especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about an arguably criminal act (running the victim off the road) without giving his identity, so that he can accuse and testify when the culprit is caught?”
Anonymous crime reporting is inherently suspicious and should be considered such. All motorists now have the power to anonymously inconvenience fellow motorist they do not know for no other reason than they do not like the way the motorist is driving. The Navarette decision is horrible law. It simply gives too much power to anonymity. At a very minimum, the police officers who responded should have been compelled to follow the vehicle and corroborate the “tip.”
To be clear, the Court would still require that an anonymous tip be suitably corroborated before it has a “sufficient indicia of reliability” to meet the Terry “reasonable suspicion” standard. The problem in Navarette case is that they were forced to go to great pains to find these “indicators of veracity.” Justice Scalia sums it up nicely:
“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.”