Monday, September 1, 2014

Criminal Law: A Freedom-Destroying Cocktail - Uncorroborated Anonymous Tips

By Joseph A. Eustace

When man bites dog, it’s news. See Bartlett's Familiar Quotations 554 (Justin Kaplin ed., Boston, London, and Toronto: Little, Brown 16th ed.) When Justices Antonin Scalia and Clarence Thomas write opinions on opposite sides of an issue, that’s news, too.

In the recent case of Navarette v. California, 134 S. Ct. 1683 (2014), Justice Scalia dissented from Justice Thomas’ majority opinion upholding an anonymous tip as the basis for a traffic stop and search. Justice Scalia’s dissent — joined by Justices Ginsburg, Sotomayor, and Kagan — harshly criticized the majority’s decision, even referring to it, in classic Scalia-esque style, as a “freedom-destroying cocktail,” consisting of ... “patent falsity.” Id. at 1697.

Navarette arose from an anonymous tip—phoned in by a motorist via 911—claiming that another car had run her off the road. The tipster provided a description of the car but otherwise remained anonymous. The California Highway Patrol responded to the tip but did not corroborate it before stopping the car for suspicion of driving under the influence. While conceding an “anonymous tip alone seldom demonstrates sufficient reliability,” id. at 1688 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)), the court nevertheless upheld the anonymous tip by distinguishing its decision in Florida v. J.L., where the court held an anonymous bare-bones tip “that a young male in a plaid shirt standing at a bus stop was carrying a gun” was not sufficiently reliable to support a search. Id. (contrasting Florida v. J.L., 529 U.S. 266, 268 (2000)).

In his dissent, Justice Scalia principally focused on the fact that the anonymous tip was, in his view, completely uncorroborated by the arresting officer, rightly pointing out that if the officer had observed a single violation of the traffic laws, “this case would not be before us.” Id. at 1696 (citing Whren v. United States, 517 U.S. 806, 810 (1996)). But Justice Scalia saved perhaps his harshest criticism for the majority’s reasoning that the lack of additional suspicious conduct (i.e., corroboration) is “hardly surprising”—and thus “largely irrelevant”—because drunk drivers may drive “more carefully” to avoid detection: “That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist.” Id. at 1697. Scalia concluded: “To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops. We should not do so for drunken driving either.” Id.

This case marks a potentially significant change in Fourth Amendment precedent in Florida. According to Scalia, Navarette lowers the justification necessary for police intrusion. And Florida Fourth Amendment decisions must confirm to Supreme Court pronouncements. Art. I, § 12, Fla. Const. see also Baptiste v. State, 995 So. 2d 285, 296-97 (Fla. 2008) (relying on Florida v. J.L., 529 U. S. 266 (2000) in holding that anonymous tip did not provide reasonable suspicion justifying investigative stop). Thomas and Scalia, however, rarely disagree on such issues, which makes Navarette very unusual and leads one to wonder who was right: Justice Thomas or Justice Scalia.