Argument preview: Acting on a caller’s tip
At 1 p.m. on Tuesday, the Supreme Court will hold one hour of oral argument on the authority of police to follow up on an anonymous tip about an unsafe driver. In the case of Naverette v. California, arguing for two brothers stopped by police on the basis of a telephone tip will be Paul R. Kleven, a practitioner in Berkeley, appointed by the Court. Dividing time on the other side will be Jeffrey M.K. Laurence of San Francisco, a supervising state deputy attorney general, for the state, and Rachel P. Kovner, an Assistant to the U.S. Solicitor General, arguing for the federal government as an amicus supporting the state.
Many Americans do not hesitate to call the police when they see what they believe to be a crime happening. But, as a constitutional matter, it is not clear that the police are free to act on such a tip, when they do not themselves see criminal conduct occurring. In 2000, the Court raised doubts about that authority, because of uncertainty about the reliability of anonymous tips. The lower courts have divided deeply trying to figure out the issue.
Now, the Court has stepped in to resolve the question in a routine case of police chasing down a driver in response to a 911 caller’s tip. Two years ago, two of the Justices protested vigorously when the Court chose to pass up that issue. Now, the question is front and center in the case of Navarette v. California.
The new case goes back to August 2008, when a state highway patrol dispatcher in Mendocino County got a telephone call from a dispatcher in Humboldt County, saying that a 911 caller had called to report that they had just been run off the road by a pickup truck. The tipster identified the truck, the license number, and where the incident had occurred.
A police “be on the lookout” radio message went out, recounting the incident and telling patrol units to respond. State Patrolman Thaddeus Williams. on duty in the town of Fort Bragg, heard the call and took up the pursuit. Soon, another officer joined in the pursuit, and relayed that he had just passed the pickup going in the opposite direction.
Williams, going in the opposite direction, saw both the pickup and the other officer’s car, and swiftly made a U-turn to take up the chase. One of the officers pulled the truck over. Lorenzo Prado Navarette had been driving, and his brother Jose Prado Navarette was with him.
The officers then searched the truck, smelling marijuana. They found four large, closed bags of marijuana in the truck bed. The brothers were charged with illegal transport and illegal possession of transport. Before trial, their lawyer sought to have the evidence barred, arguing that the officers had not corroborated the anonymous tip leading them to chase and stop the truck.
Ultimately, a plea deal was arranged, and the two pleaded guilty to a charge of possessing marijuana. They were sentenced to ninety days in jail and three years of probation. They then appealed in California state courts on the evidence issue, but their challenge was rejected by a state appeals court. That court said that the 911 caller’s tip was sufficient to permit the police to make the stop, especially since the caller had reported a dangerous situation that required a quick response. The officers, it added, did corroborate the details about the truck and its license number that the caller had given, even though the police themselves saw nothing illegal.
At one stage in the case, a prosecutor said that the 911 caller had given her name. However, the case has proceeded through lower courts and in the Supreme Court on the legal premise that the tip was anonymous.
The brothers’ lawyer took the case to the Supreme Court, relying heavily upon the Supreme Court’s 2000 decision in the case of Florida v. J.L., declaring that police may not stop a person on the street for questioning based only on an anonymous tip identifying a particular individual and relaying word that that person had a gun. Simple identification of an individual and an unexplained report of a gun do not make such a tip sufficiently reliable, the Court said. And it said it would not create a firearms exception to its requirement that police must corroborate a tip before acting on it.
The petition also cited the conflicting rulings among lower courts, and noted that Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia had argued that the question was an important one, when they dissented from the Court’s refusal to confront that issue in 2009 in Virginia v. Harris.
The state chose not to respond to the petition, but the Court asked for its views. It then urged the Court not to hear the case, saying that California’s approach followed the majority view.
The brothers’ petition had raised two questions — first, on the need for corroboration of an anonymous tip, and, second, on whether the officers in this case had reasonable suspicion based on the nature of the tip to justify stopping the truck.
The Court on June 11 granted review, but only on the first question.
The brothers’ brief on the merits argued that their case fell squarely within the Court’s precedent in Florida v. J.L. Just as the Court there had rejected a “firearms exception” to the need for police to have support for a tipster’s story, they argued that the Court should now decline to adopt a reckless driving exception to that requirement. There is no real distinction, the brief said, between a tip about a gun and a tip about reckless driving.
The state’s merits brief relied heavily upon a public safety argument, contending that when a 911 caller relays information about a dangerous situation on the roads — “an immediate threat to public safety” — officers have reasonable suspicion to justify a stop without themselves having observing a violation of the traffic laws. The J.L. precedent, the brief contended, did not establish an “inflexible reliability test” for anonymous tips.
The federal government has joined in the case as an amicus in support of the state, stressing that the most important issue in the Fourth Amendment contest is what is “reasonable” in police conduct, and arguing that this test is clearly satisfied when the anonymous tip is by an eyewitness who reports a “serious and immediate” threat of harm. That, together with drivers’ reduced expectation of privacy when in their vehicles on public roads, justifies police officers in making a prompt stop “rather than awaiting additional dangerous driving that would place lives at risk.”
The brothers have picked up the support of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. The state has amici support from thirty-two states and the District of Columbia.
Taking as a starting point the Chief Justice’s dissent (joined by Justice Scalia) four years ago, with a fervent argument about the threat of reckless or drunken drivers on the nation’s highway, there clearly is sentiment for giving the police some measure of discretion in that situation.
But that is only a beginning, and the key issue for other Justices will be whether highway patrolmen will be significantly hampered if they are not allowed to simply take the word of an anonymous caller. If word that a person on the street has a gun is not sufficient by itself to give police an occasion to take action, is word from a 911 call of a moving vehicle violation enough to create a new exception to the Fourth Amendment’s limits?
The Court, of course, has a good deal of flexibility — because of that word “unreasonable” in the Fourth Amendment — to give police added degrees of discretion, especially when they are confronting fast-moving events. That, of course, explains why the Justice Department and the state of California in this case put strong emphasis on the public safety rationale for allowing police to act without independent corroboration of a caller’s tip.
The Justice Department has sought to make it simpler for the Court to rely upon public safety considerations in deciding in favor of police action, by suggesting that the critical factor in this and similar cases could well be that the 911 caller was an eyewitness. And the Department has thrown in an added factor: the development of modern telephone-tracking technology, it suggested, would enable follow to check out the identity, and reliability, of 911 callers.
At the simplest level, the Court may well have taken this case with a strong inclination to uphold the California court’s ruling, and that may well be enough.