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.
