Supreme Court Conjures Corrorboration of Anonymous Tip Out of Thin Air To Justify Traffic Stop

Today the United States Supreme Court decided Navarette v. California, upholding a California court's determination that a traffic stop of Navarette's truck — which, as it turned out, contained drugs — was supported by reasonable suspicion, and therefore constitutional. The opinion is here. It's a 5-4 decision, with Justice Thomas writing the majority opinion and Justice Scalia writing the dissent. It should have gone the other way.

The issue at hand is the power and reliability of anonymous tips. Here the California Highway Patrol received an anonymous tip through a 911 dispatcher that a silver Ford 150 pickup on a particular highway had run the tipster off the road. The CHP saw a truck matching the description on the highway and stopped it on suspicion of drunk driving — but did not first observe the truck doing anything illegal or reckless. In fact, the cops followed the truck for five miles without observing any traffic violations. The cops approached the truck and (allegedly) smelled marijuana, which led to a search and the discovery of a substantial amount of marijuana in the truck bed.

The Supreme Court has found that the Fourth Amendment permits brief, investigative stops of vehicles based on reasonable suspicion alone — that is, a "particularized and objective" basis to believe some crime is being committed. That's not new. Nor is it new that an anonymous tip can form part of the basis for reasonable suspicion or probable cause — if the tip is corroborated.

What's novel here is that the majority agrees that reasonable suspicion can be premised entirely on a functionally anonymous tip.1 Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative. Here, the police observed no erratic driving or other corroboration of meaningful facts. In fact, they observed five minutes of unremarkable driving. The only corroboration was the innocent fact of the truck being present on the highway.

The majority uses sophistry to turn innocent facts into facts that corroborate the anonymous typster:

By reporting that she had been run off the road by aspecific 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.

. . . .

A driver’s claim that another vehicle ran her off the road, however, necessarily implies that the informant knows the other car was driven dangerously.

. . .

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. See Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae 16–18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

The majority is turning three things into corroboration here: (1) the fact that the person claimed something happened immediately after it allegedly happened, (2) the fact that a person predicted that a particular car would be on a particular highway, and (3) the fact that the person called 911 and made the claim. But the 911 caller could have claimed anything — that someone was pointing a rocket launcher out the window of the truck, that someone was stabbing a nun in the back of the truck — and gotten the same result. (1) and (3) are just restating the premise "we got an anonymous tip about this," and (2) is a purely innocent fact that any public observer could know. This approach renders the concept of corroboration almost meaningless by making calls to 911 about highway behavior effectively self-corroborating. If I want to call 911 and report that you are weaving in and out of traffic and appear drunk, under this decision, I just created reasonable suspicion to stop you. The cops can pull you over without observing you driving oddly at all — in fact, they can stop you even if they follow you for five minutes and you are driving perfectly.

Justice Scalia's dissent is thorough and merciless, as it should be. Here's how he ends it:

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 hisword is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Justice Scalia is right. This decision waters down corroboration to the point that it is meaningless, effectively making any anonymous tip of a driver's behavior sufficient to justify a traffic stop. That's a bad result.

See also Jonathan Adler.

  1. The opinion reflects that the 911 tipster gave their name, but the name was not passed along to CHP, and the government never offered any evidence of the identity of the tipster.  

Last 5 posts by Ken White

Comments

  1. PLW says

    911 is a little different from other sorts of anonymous tips, as there is some tracking of your identity (although it could be circumvented by burner phones, for example).

  2. Jon says

    So if I happen to follow Thomas around and call in every traffic violation, and he is not stopped on suspicion of drunk driving, would that be selective enforcement? How about any off duty CHP traffic violations?

  3. John says

    PLW: Scalia addresses this is in his dissent. The short answer is: it is the tipster's belief about anonymity that affects their behavior, not the reality of anonymity.

  4. Steven H. says

    @Jon:

    Why waste time waiting for a traffic violation? If you say there was one, then there must have been one, right?

  5. Steve says

    Is/was there a different standard between things like traffic violations and bigger crimes? If I phone in an anonymous tip to 911 that a guy with license plate blah blah blah just stuffed a guy in his trunk and drove off, the police can find that guy and check the trunk, even if they didn't see any previous or ongoing infraction, right?

  6. Jessie says

    Sounds like a free ride for assault or murder for a cop. Cop carries around a pre paid burner phone. When there is someone he doesn't like, he locates them, calls in a fake anonymous tip, makes sure he's the first on scene for the traffic stop. Then the usual "why are you resisting, stop resisting" assault begins.

  7. Joe Blow says

    Anonymous tips are a good way to camouflage the proceeds of illegal or improper wiretaps, or perhaps stuff passed along from other agencies, who gathered it under dubious circumstances but who want to sterilize the information. It's also the stuff of vendetta.

    I'm very skeptical about giving credence to anonymous tips.

  8. QHS says

    So… was the driver actually drunk or maybe high on his own product? Just curious.

    I've had plenty of cars try to run me off the road. Because people are clueless idiots, even when they haven't been drinking.

  9. mcinsand says

    Is there any branch, agency, or even a small group of cubicles in our government that is not working to undermine our Constitution, particularly the fourth amendment???

  10. says

    I wonder how long it'll be before the "logic" behind this decision gets extended past traffic stops, and makes swatting that much more… interesting.

  11. L says

    So… was the driver actually drunk or maybe high on his own product? Just curious.

    I don't think the opinion says, but the police followed him for five minutes and he did nothing wrong and nothing suspicious, which tends to make me think the answer is no.

  12. ZarroTsu says

    I have reason to believe that a colored vehicle on planet earth may or may not contain narcotics. Additional details include a human driver who lives in a house with a black roof.

  13. Steven H. says

    @QSH:

    You seem to be assuming that the tipster was really run off the road. Is there any evidence that this actually happened?

    Or was the "tipster" someone trying to bust up a rival drug smuggling group?

    Or his ex?

  14. says

    @Steve, the level of seriousness of alleged offense would certainly play into the cops' response, although I don't know that an anonymous allegation would be enough to compel someone to open his trunk without a warrant. They would probably more readily obtain a warrant from a judge if there is the possibility of a kidnapping rather than careless driving.

  15. Tim McNeil says

    And here I was so certain that Scalia would never render an opinion I could agree with. What is this world coming to? The man made perfect sense this time.

  16. jb says

    As others have mentioned, my first thought is "The underlying traffic violation need not have happened, and for that matter the 911 caller could just as well be the officer on scene, and no one would ever be the wiser."

    So this effectively eviscerates the reasonable suspicion requirement.

  17. Bill Kilgore says

    With due respect Warren, under that set of facts there is close to zero chance that the cops don't pop the trunk. And a similar chance- should they find a victim- that the exclusionary rule, should it be technically applicable, doesn't get waived when applying it might make it look bad.

    I'd be open to disagreement on the second point, but not so much on the first point. Having nearly married a Deputy DA- and therefore having "enjoyed" the privilege of meeting dozens of beat cops- IME, there is a better chance they would be worried about bubonic plague popping out of the trunk and wiping out civilization than that they would be worried about the Fourth Amendment.

  18. Bill Kilgore says

    — And here I was so certain that Scalia would never render an opinion I could agree with.–

    What do you find most objectionable about his jurisprudence with respect to the Confrontation Clause?

  19. Nicholas Weaver says

    How else are the DEA and the NSA supposed to launder their illegally gathered information? Hu? Hu?

  20. QHS says

    @Steve, the level of seriousness of alleged offense would certainly play into the cops' response, although I don't know that an anonymous allegation would be enough to compel someone to open his trunk without a warrant. They would probably more readily obtain a warrant from a judge if there is the possibility of a kidnapping rather than careless driving.

    Why get a warrant when you can just claim that you "smelled marijuana" and thus had probable cause?

  21. AlphaCentauri says

    For the sake of argument, what if the caller had been willing to identify him/herself? (And who calls on a cell phone and expects to be anonymous, anyway? There's no caller ID blocking with 911, and at least where I live, your phone does not sound the tone that the call has been disconnected for some time after hanging up with a 911 operator. Presumably you are being tracked on GPS during that time.)

  22. Not says

    I have personally reported a truck for running me off of the road in similar circumstances. I grant that my circumstances were probably not drug-related, but merely a careless driver. I also got their license plate, was able to give the time, location and direction of travel as well as a description of the vehicle.

    While my case was not so anonymous as the Utah police did, in fact, email me back saying they had talked to the careless driver, I have a hard time seeing any reason why this tip should not be considered credible or any reason why the officers personally should need to witness a second act of careless driving merely to stop them. While it might be true that the intoxication theory could seem to be busted, reckless driving itself is an offense and no evidence has been presented that the tip was fabricated. This seems to imply that no such evidence exists. The call records should show that it wasn't, e.g. made after the actual stop.

    The tip alone should have been suspicion enough to investigate them, and after that the smell of marijuana incriminated them. One might argue that it shouldn't be so criminal, but I cannot see from this fact pattern alone a good reason to assume the tip was itself unreasonable. The witnesses' statement of having seen a crime is itself evidence and I believe it to be reasonably counterbalanced by the illegality of making false police reports.

  23. Not says

    "the 911 caller could just as well be the officer on scene, and no one would ever be the wiser."

    They should be able to figure that out by timing when things happened. They also know who this person is, as 911 has recordings of every call and they could always have gone after that if they had wished to.

    The fact that they have not presented any evidence of parallel construction here leads me to believe that they cannot. I have not heard of large numbers of false traffic infractions being called in. I would think that we would hear loud complaints about that on social media.

  24. myperbole says

    @Not: "…reckless driving itself is an offense and no evidence has been presented that the tip was fabricated."

    Being required to prove that one's accuser's claim is false pretty much boils down to a system of "guilty until proven innocent." I can't be sure, but that might not be a good thing.

  25. Wesley says

    Not:

    There is a key difference between "talking to" and "stopping." The officers in your cases "talking to" someone does not mean they pulled the drivers over.

    A traffic stop is a seizure under the Fourth Amendment, though considered a minimal one, and thus requires reasonable suspicion of criminal activity. One prior incident of uncorroborated, purely alleged conduct that MAY amount to a traffic offense (swerving is not per se reckless driving) is not sufficient cause to seize someone, even momentarily. The majority in this case doesn't even bother to argue otherwise. See: Florida v. J.L, which held that an anonymous tip that someone had a gun was not sufficient reasonable suspicion for a "stop and frisk."

    Instead, stopping the car was only warranted where there was sufficient cause that the driver was doing something criminal. That clearly didn't exist in this case, despite the majority's painful rationalizations that Scalia ripped into.

    Also, for everyone else: those who claim surprise that Scalia wrote such a good, defendant-friendly opinion have clearly never read anything he's written on the 4th, 6th, or even 1st amendments. Last year's Maryland v. King dissent stands out among his best.

  26. Parallax says

    My question is, in terms of discovery, do police ever have to disclose the identity of an anonymous caller, even though they know the number dialed and could track the phone if desired?

    If they do not, given parallel construction, what prevents the police from phoning in their own reasonable suspicion?

    Edit to add: Read the article, and the opinion, not the comments, before posting. I have since read the comments. :)

  27. says

    I don't know how big of a problem police abuse of anonymous tip lines really is. I've heard everything from 'negligible' to 'significant'. But if it's significant, then the horrible thing about this decision is that it's the corrupt policeman who will learn the precise minimum number of magic words and fabricated 'observations on the scene' that will be necessary to authorize a long tail and then a stop and search.

    Your random anonymous tipster may get it wrong, but the corrupt cop never will. And now he needs even less.

  28. jb says

    Not:
    "I have not heard of large numbers of false traffic infractions being called in. I would think that we would hear loud complaints about that on social media."

    1) Of course you haven't, this loophole appears to be new, hence the post discussing the decision that opened it.
    2) And who would believe the perp over the fine upstanding cops he is accusing of making said fake infraction call? If you think the answer is many people outside of this here comment section, you deserve a pat on the head for your optimism and naivete. I guarantee, 99% of the public reaction to such a controversy would be outrage at the prospect of him getting off on a technicality.

  29. En Passant says

    AlphaCentauri wrote Apr 22, 2014 @1:44 pm:

    (And who calls on a cell phone and expects to be anonymous, anyway? There's no caller ID blocking with 911, …)
    You (at least phone 4aX0rs) don't need to block CID. You hack your own burner phone to deliver another CID of your choice.

    To digress on the point a bit — at least one well known phone robospammer is known to have bought many blocks of unused phone numbers which they use to deliver as CIDs. These are not active phone numbers used by someone else. So the robospammer avoids even possible prosecution for falsely using some random innocent telephone subscriber's number for his caller ID.

    Finding the robospammer's blocks of CID numbers is easy. The rest is mere hackery on your own burner phone.

  30. En Passant says

    @)#^!!!1! Messed up the blockquoting above. Haven't figured out how to edit, or if it's possible. Can it if it's easy to do. Here's what I meant to post:

    AlphaCentauri wrote Apr 22, 2014 @1:44 pm:

    (And who calls on a cell phone and expects to be anonymous, anyway? There's no caller ID blocking with 911, …)

    You (at least phone 4aX0rs) don't need to block CID. You hack your own burner phone to deliver another CID of your choice.

    To digress on the point a bit — at least one well known phone robospammer is known to have bought many blocks of unused phone numbers which they use to deliver as CIDs. These are not active phone numbers used by someone else. So the robospammer avoids even possible prosecution for falsely using some random innocent telephone subscriber's number for his caller ID.

    Finding the robospammer's blocks of CID numbers is easy. The rest is mere hackery on your own burner phone.

  31. Noscitur a sociis says

    "Sounds like a free ride for assault or murder for a cop. Cop carries around a pre paid burner phone. When there is someone he doesn't like, he locates them, calls in a fake anonymous tip, makes sure he's the first on scene for the traffic stop. Then the usual "why are you resisting, stop resisting" assault begins."

    Is this really what worries you about the opinion?

  32. Taliesyn says

    You know, while I generally disagree with Scalia in the strongest possible way, bugger me if the man isn't dead-on this time around.

    Edit:

    "Is this really what worries you about the opinion?"

    Some people – many here, including Clark – believe that every law enforcement officer in the US is part of some sort of vast conspiracy out to abuse everyone he or she can For the Evilz, and are all worse than any drug dealer, rapist, or other violent criminal in the US. And no, I'm not invoking Poe's law here. These are the same kind of people who see a video of someone ambushing a cop at a traffic stop and failing to kill the cop, and then comment 'too bad the cop lived', despite knowing nothing about the situation or people involved.

  33. David C says

    Is this really what worries you about the opinion?

    Yeah, that's almost a nothing, since the cop could just say he observed the guy swerving himself. Much easier, and no pesky phone evidence or worries that someone else will get there first.

    I think the fact that the tip was anonymous is significant because it means that a person calling in a tip can face no consequences for getting someone pulled over (while it's possible they could track someone down, that's far from certain) and also because it means the cops have zero evidence that they can use in court. An anonymous tip is the very definition of hearsay.

    The anonymous tip was certainly reason for the cops to investigate. But they followed him for miles and he didn't do anything wrong, so they shouldn't then be able to pull him over just because some guy says so.

  34. Not says

    If what worries us most is what the cops could have done, as has been pointed out, it would have been much simpler for the cops to simply lie and say "he swerved" than to invent a fake 911 call, etc. That involves no preparation. And yes, I recognize a pretext stop. I've been in one before because my car "matched the description of a stolen vehicle" (in a common car in a place where car theft is particularly common). They even had me get out of the car, ostensibly to show me that my license plate was dirty. I was polite, deferential, and driving home free a few minutes later as there was nothing to find.

    Also, I should mention that the truck that ran me off the road was a commercial vehicle, implying that the driver should have held a CDL. I'm not completely clear on what the Utah troopers did, but it may well have involved an inspection or similar. Given the timing, I would not expect any kind of traffic stop, however.

    Also, for all the complaints over anonymity, there appears to have been no serious effort to confront the witness. Like they didn't even try to get the 911 recording. I am assuming that it was better to complain about not being given this rather than to actually obtain it and have it proven immaterial.

  35. JimBob says

    I seem to recall, after Scalia's dissent in Maryland v King, somebody said that Scalia seldom writes as well as he does when he is acting as the liberal conscience of the court.

    It is interesting that Scalia, the who coined the phrase "new professionalism" as part of a criticism of the exclusionary rule, has been on the traditionally-progressive side of two major Fourth Amendment cases lately.

  36. David C says

    @Ryan: We're treating it as anonymous because the courts treated it as anonymous because the officers making the arrest had no reason to think it wasn't anonymous, and everything revolves around whether they had cause.

    And also, if the only thing required is that the person calling the police gives their name… well, I can tell the police my name is anything, and they'll have no way to verify whether that is my actual name. That doesn't do much to prevent abuse. Although on second thought it might at least expose the person to charges of obstruction if they were caught in that lie.

  37. RB says

    Between this decision, the Snowden revelations, and a few other recent and not so recent government actions, does anyone else think that
    the nut-jobs in Nevada now have the moral high ground? And in fact, they may not even be nut-jobs. Just patriotic Americans.

  38. ChicagoTom says

    So before reading the opinion, i guessed at which side of the decision the other 8 justices would fall on.

    Scalia, Ill admit surprised me considering his history of disdain for things like Miranda, and more generally his dislike for rights of the accused — but since he was called out in the post I knew where he fell.

    Alito, Roberts, Thomas, and Breyer (who is a raging authoritarian IMHO) were all easy to predict as they love taking a crap on 4th amendment rights.

    Kagan, Ginsberg and Sotomayer were also pretty predictable as they tend to be more sympathetic to the plight of the accused.

    Kennedy though…. what the hell??? I picked him to be with the majority, but only because of the breakdown of the rest and I knew the outcome. I would have guessed (hoped?) he would have actually lived up to his somewhat libertarian-ish reputation.

    His voting with the majority is really disappointing and disheartening.

  39. ChicagoTom says

    Between this decision, the Snowden revelations, and a few other recent and not so recent government actions, does anyone else think that
    the nut-jobs in Nevada now have the moral high ground? And in fact, they may not even be nut-jobs. Just patriotic Americans.

    There are lots of things the Nevada folks can be called (regardless of whether you support their cause or not), but patriotic definitely isn't one of them. I don't think you can be a 'patriot' when you espouse views talking about the illegitimacy of the Federal government and claim you don't recognize it's authority at all. That word doesn't mean what some people think it means.

  40. Bill Kilgore says

    — and more generally his dislike for rights of the accused —

    Your ignorance is showing.

  41. RB says

    Please forgive me, this is my first attempt with blockquote.

    I don't think you can be a 'patriot' when you espouse views talking about the illegitimacy of the Federal government

    Why not? To me, America is the constitution, including the Bill of Rights and the other amendments. So to be patriotic, you have to support the constitution. Since I believe that the Federal Government no longer protects and defends the Constitution of the United States, in my mind, the federal government is no longer legitimate.

    I want to thank you. Your response has finally let me understand what I've been trying to ask enough to ask the questions well.

    Since recent government actions have made a mockery of the constitution, in my eyes, the Federal Government has lost its legitimacy. So who are the patriots now? In particular, where do we draw the line between armed nut-jobs standing up to agents of the federal government and patriots? Furthermore, how has the federal governments ability to use force against armed nut-jobs been impacted by its lack of legitimacy? Does the government have to worry more about touching off a powder keg then it did in say 2012?

    I like the Nevada Nut-Jobs because they give a concrete example to test theories and potential answers to the above questions. You can examine how different ideas might apply to current events.

  42. glasnost says

    It's a shame that this post didn't see fit to educate readers on which justices supported this decision and which didn't. As a general rule, with many exceptions but no less relevant for those exceptions, Democratic-appointed judges believe that you have rights in the criminal justice system, and Republican-appointed justices don't. That's reflected well in the 9-justice breakdown in this and most other appeals and supreme court decisions.

  43. Wes says

    If there truly is a presumption of innocence, then why is it legal for sheriffs and cops to set up routine traffic stops that target everyone on a particular strip of road and stop everyone looking for drunks? By stopping everyone is there not the presumption of guilt? If a law enforcement officer can just randomly stop drivers without witnessing any illegal activity beforehand, is it not equivalent to an anonymous 911 caller accusing someone?

  44. MCB says

    Ken,

    Just out of curiosity how many federal judges do you think have spent any significant time defending criminal defendants, particularly indigent criminal defendants? I know nobody on the Supreme Court has. Is there a single federal circuit judge in the country with that experience? I know of only one or two district court judges. Any in CDCA where you practice? How may cases in your career do you reckon you have argued in front of a former public defender?

    By comparison, how many federal judges worked for at least a couple years as a prosecutor?

    Is it at all surprising that a federal judiciary made up of so many former prosecutors and virtually no former defense attorneys has the culture that it does? My sense is that the majority of federal judges work hard to be impartial and are very capable judges. I also think that's true of every SCOTUS justice including the ones I don't like. But I think you would have to be crazy to think that staffing our courts exclusively with former prosecutors would not have an impact.

    And I don't believe for a minute that there aren't plenty of federal defenders out there who are qualified for the bench.

  45. David Schwartz says

    "If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that's meaningfully corroborative."

    Only if that observation alone constitutes probable cause. Say I see my neighbor loading meth precursor chemicals into his house. I call the cops and say, "I suspect my neighbor's house has a meth lab." The cops watch the house and see my neighbor loading precursor chemicals. That corroborates my tip. But the cops have no more probable cause than they would without the tip.

    Only an observation that is unlikely to have formed the basis for the tip can generate probable cause with a tip that it couldn't without it. (If we're being rational, anyway.)

  46. Castaigne says

    @RB:

    does anyone else think that
    the nut-jobs in Nevada now have the moral high ground?

    No, because Welfare Ranchers who believe in psuedo-law don't have any ground to stand on from the get-go. Also, who is moral and who isn't is quite subjective – this is why we go by legal standards instead, which apply to everyone.

    Since I believe that the Federal Government no longer protects and defends the Constitution of the United States, in my mind, the federal government is no longer legitimate.

    It also requires that your belief actually be fact. Breatharians believe they can live off nothing but sunlight. That doesn't mean they actually do so. Your belief does not automatically make you a patriot.

    Since recent government actions have made a mockery of the constitution, in my eyes, the Federal Government has lost its legitimacy.

    Then begin executing all federal government employees as traitors to the Constitution. You have that right, per standard sovereign citizen positions.

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