Download Could high court let non-felony behavior prompt Ter ry s tops?

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.