THE FOURTH AMENDMENT UP IN SMOKE — NAVARETTE V. CALIFORNIA

Legal research often takes me back to the 1960′s and 70′s. The Supreme Court, first under Chief Justice Earl Warren, defined many Constitutional rights. Many cases involved the rights of the accused, such as Mapp v. Ohio (exclusionary rule), Gideon v. Wainwright (indigent right to appointed counsel), Miranda v. Arizona (no description necessary). Warren Burger succeeded Warren as Chief Justice in 1969 and the Burger court, while not as progressive as the Warren court, continued or at the very least did not reverse the criminal jurisprudence of the preceding decade. The decline began with the Rehnquist court in the 1980′s and 90′s and continues in the present with the Roberts court.

Today, the Supreme Court issued the decision of Navarette v. California with a majority of Justices Thomas (the author), Roberts, Breyer, Alito and Kennedy. Justice Scalia (Warning: I agree with Justice Scalia) sharply dissented, joined by Justices Sotomayor, Kagan and Ginsburg. Navarette was a Fourth Amendment case and while today’s decision does not carve out a new exception to the warrant requirement, it does make it easier for the police to stop vehicles.

The defendant Navarette was stopped on the highway in California after a 911 caller said that his truck ran him or her off the road. The police, suspecting drunk driving, saw the truck on the highway, followed it and stopped it. After stopping the truck, the police smelled marijuana (police ALWAYS smell marijuana although in this case they probably really did), searched the truck and found bales of marijuana in its bed. It seems pretty open and shut, so what was the Fourth Amendment issue? It wasn’t in the search because the smell of the weed likely provided the requisite probable cause to search. It lies in the stop–did the police have reasonable suspicion to stop the truck? There must be reasonable suspicion that a crime is taking place, has taken place or is about to take place involving the vehicle. That could be a traffic violation. The caller said that the truck ran him or her off the road, which would suggest reckless driving or possibly drunk driving. The caller described the truck and its location and that was enough for the majority to find reasonable suspicion in the totality of the circumstances.

Justice Scalia argues in dissent that there was not enough for reasonable suspicion because the call was anonymous and uncorroborated. The Supreme Court previously held in Florida v. J.L. that an anonymous tip that a young man was carrying a gun without anything more than a description and his location was not enough to justify a stop and search of him. In Alabama v. White, the Court upheld a stop based on an anonymous tip because the police corroborated it through their own investigation. That didn’t happen in Navarette. Although the police followed the defendant, he did not commit any traffic violations during that time nor did he show any signs of drunk driving. There was no corroboration. There was no accident or even identification of the caller.

Why shouldn’t an anonymous tip be enough on its own? Reliability. Our law, especially Fourth Amendment law, requires that information that leads to criminal action against an individual be reliable. That is why judges must sign off on warrants. It is also why courts prefer in person testimony over hearsay. An anonymous call could come from anyone and be for any reason. It is easy to side against the defendants in these cases because appeals come from guilty defendants. We don’t find out about many people who were shaken down by the police on bogus tips.

Aside from confrontation clause issues, the Roberts court has not been friendly to criminal defendants. Last year the Court held that a defendant’s silence can be used against him. Two years ago the Court upheld the use of strip searches for taking arrested persons into jail.

The dissent closes by saying, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”