By Allen Thompson, Esq.
In a close case, Navarette v. California, 572 U.S. (2014), the Supreme Court of the United States ruled 5-4 today that an anonymous 911 call may serve as the sole basis for a lawful investigative stop, even where responding police officers cannot confirm the material facts of the call.
In the summer of 2008, an anonymous caller reported being run off the road by a Ford F-150 heading south on Highway 1 and gave the operator the license plate number. Responding to the call, Highway Patrol officers located the truck a few minutes later, followed it for about 5 minutes, and then pulled the driver over. Notably, the officers did not observe any erratic driving. Approaching the truck, the officers smelled marijuana and discovered 30 lbs. in the bed of the pickup. At trial, the defendants moved to suppress the evidence on the basis that the stop was unlawful, since the officers only had an anonymous, unconfirmed tip of erratic driving. The evidence was admitted and the driver and his passenger were convicted. The Supreme Court today affirmed the convictions.
Typically, the police must have some confirmation of a tipster’s information before making the investigative stop. Confirmation of the material facts of the tip is even more important when the tip is anonymous. For example, the Supreme Court has held that where an anonymous tipster informed police that a particular vehicle was carrying cocaine, the fact that the tip described the car down to the broken headlight and was able to describe the future route of the car from a particular apartment complex to a particular hotel, the tip was reliable enough to provide the reasonable suspicion necessary for an investigative stop. Alabama v. White, 496 U.S. 325 (1990). On the other hand, where the anonymous tip could only describe an individual, his location, and what he was wearing, the tip was not considered reliable enough to provide reasonable suspicion. Florida v. J.L., 529 U.S. 266 (2000).
What is troubling with the Court’s decision today is the minimal amount of articulable facts an officer may now rely on for reasonable suspicion. As Justice Scalia points out in his dissenting opinion (a relatively short, but biting, dissent), the only thing that the police could confirm prior to pulling over the vehicle was that there was, indeed, a silver F-150 with a particular license plate driving south on Highway 1.
Of primary concern is that nothing about the truck’s behavior indicated any criminal activity; the vehicle did not swerve, veer, slow down, speed up, etc. This led Scalia to note that, not only was the tip not corroborated, it was actually discredited, for the police could actually observe that no criminal activity was occurring. And yet, the Court found the tip convincing in that it identified a particular vehicle travelling in a particular direction on a busy highway. Scalia correctly notes that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information. . . . [T]hat generally available knowledge in no way makes it plausible that the tipster saw the car run someone off the road.”
That is precisely why this case is disconcerting. As of today, anyone with a grudge against a particular driver may anonymously call 911 and have that person stopped. Of course, it is a crime to falsely report criminal activity, but that only punishes the tipster; it does nothing to protect against the unreasonable search and seizure of the driver. And if the driver happens to have something illegal in the car, he still must answer to the criminal charges.
It is unfortunate that the Supreme Court has now essentially declared that we are all under reasonable suspicion the moment any person, under the full protection of the cloak of anonymity, reports that we are criminals. Justice Scalia is entirely correct when he laments that “[T]his is not . . . the Framers’ [concept] of a people secure from unreasonable searches and seizures.” Indeed, it is not.