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CHICAGOLAWBULLETIN.COM WEDNESDAY, JULY 16, 2014 ® Volume 160, No. 139 Could high court let non-felony behavior prompt Terry stops? L reasonable suspicion. It noted et’s be clear: Drunken that reasonable suspicion “is dedrivers are a deadly CRIMINAL pendent upon both the content of menace on the nation’s PROCEDURE information possessed by police highways. But how far may law enforcement go and its degree of reliability.” Also, the information need not come in getting them off the road? from the officer’s personal obThat is the issue the U.S. servations but can be provided Supreme Court recently faced in TIMOTHY P. by another person. Prado Navarette v. California, No. O’NEILL But this case deals with an 12-9490 (April 22). anonymous tip. And the problem In 2008, the California Highis that it falls between the court’s Timothy P. O’Neill is a professor at The way Patrol received a 911 call in prior two decisions on when an which an anonymous caller reJohn Marshall Law School. In 2012 he anonymous tip is sufficient to ported that a Ford pickup had was awarded the Chicago Bar Association’s Herman Kogan Meritorious support a Terry stop. just run her car off the road on In Alabama v. White, an anony- Achievement Award for legal journalism. southbound Highway 1. The Readers are invited to visit his Web log mous tipster told the police that caller gave the truck’s license and archives at jmls.edu/oneill. Vanessa White would leave a plate number, and the dispatcher particular address and would broadcast this information over drive to a specific motel to dethe police radio. White, this tip did not provide liver drugs. 496 U.S. 325 (1990). A CHP officer spotted the any predictions of future behavThe tip provided a precise detruck within minutes. He proior. Nor did the tipster explain scription of her car. After the ceeded to follow it for several how he knew about the gun. more minutes before pulling over police confirmed that her beThus, the court held the tip did the driver on suspicion of driving havior matched several of the not establish reasonable suspitip’s details — her address, her while intoxicated. As they apcion. car and her driving route — they proached the truck, the two ofThus, Prado Navarette is difstopped the car and found drugs. ferent from White because the ficers smelled marijuana. A subThe Supreme Court conceded sequent search uncovered 30 tip did not include any distinctive that the police had only conpounds of the drug. The driver predictive behavior. But, unlike firmed innocent details from the and passenger were both arrestJ.L., the tip did in fact provide a ed and charged with transporting anonymous tip. Nonetheless, it basis of knowledge (i.e., being held that the tipster’s prediction marijuana. run off the road) that could arof her future behavior demonThe defendants filed a motion guably support a suspicion of strated a “special familiarity” to suppress. They conceded that intoxication. with White’s affairs. It thus Terry v. Ohio gives officers the The court found that the tip found that the anonymous tip right to conduct an investigative was sufficient to establish reastop if there is reasonable sonable suspicion suspicion of criminal acof drunken drivtivity. But here, the ofing. First, the ficers only possessed tip actually deThe most disturbing aspect is where an anonymous tip of scribed an act the court is clearly heading. … Here, reckless driving. Moreof reckless drivover, the officers obing. Also, the lothe court used completed subfelony served nothing that cation of the activity to support reasonable would confirm that the car was consisdriver was recklessly tent with where suspicion of an ongoing crime. operating the car. the behavior alThe defendants conlegedly occurred. tended that this informaAnd despite the provided the police with “reation does not rise to the level of anonymity, the court found it sonable suspicion” to make the “reasonable suspicion” of drunkreasonable to assume that the Terry stop. en driving. California courts recaller was aware that the 911 But the court limited anonyjected this claim, and the U.S. system included ways to identify mous tips in Florida v J.L., 529 Supreme Court granted review. the caller. U.S. 266 (2000). There, the In a 5-4 decision, the court Finally, the court found that anonymous tip simply said that a the act of running a car off the also rejected the defendants’ young black male in a plaid shirt claim and affirmed the convicroad could support a conclusion at a bus stop was carrying a tions. that the driver was legally imgun. The court held this tip was The majority agreed that a paired. Conceding it was a close insufficient. Unlike the tip in Terry stop could be based on case, the majority nonetheless found there was reasonable suspicion to support a stop for drunken driving. Justice Antonin G. Scalia, writing for three other dissenters, vehemently disagreed. He referred to the court’s opinion as “a freedom-destroying cocktail consisting of two parts patent falsity.” First, the court suggests that an anonymous report of a traffic violation is reliable as long as it can correctly identify a car and its location. But Scalia argues that “everyone in the world who saw the car would have that knowledge.” And in no way would this general knowledge make it plausible that this car ran another off the road. The second false premise, according to Scalia, is that a single instance of careless driving would necessarily suggest that a driver was intoxicated. Scalia emphasized that the police followed the car for five minutes before pulling it over. And during that time they admitted that they failed to see dangerous driving. Not only was the tip uncorroborated; as Scalia notes, “it was affirmatively undermined.” Scalia then identifies what he calls the court’s “new rule”: “So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop.” And he denies this “rule” is constitutional. The most disturbing aspect is where the court is clearly heading. As of today, the court has allowed Terry stops for only one kind of completed criminal activity: felonies. See U.S. v Hensley, 469 U.S. 221 (1985). Here, the court used completed subfelony activity to support reasonable suspicion of an ongoing crime. In a footnote, the court said it was leaving to another day whether reasonable suspicion of a completed non-felony could per se support a stop. But based on Prado Navarette, it certainly looks like the same 5-4 lineup is ready to further extend Terry. Copyright © 2014 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company.