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Argument recap: Pushing the hypotheticals


A rule of thumb for a Fourth Amendment hearing at the Supreme Court:  if the hypotheticals get extreme enough, even a lawyer trying to make a simple, “bright line” argument is going to have to concede something.  That happened to all three lawyers who appeared on Tuesday afternoon as the Court heard the case of Navarette v. California.

This is a case about anonymous tips to police and whether the officers can act on them if they don’t independently see a crime being committed.  From all indications, a tip by itself may not be enough — except in extreme situations where the potential threat really gets dire.

The Fourth Amendment, because it outlaws privacy intrusions by the government only if they are “unreasonable,” always sets the Court off into a process of line-drawing:  what’s on the permissible side, what’s on the forbidden side.

On Tuesday, the Court was offered two basic options on where to draw that line: the police should not be free to act on the basis of an anonymous tip that contains some reliable but innocent facts just because the crime that might have occurred is a serious one; and the police should be free to act in that circumstance, especially when the tipster claims to have been an eyewitness.

The Justices did not seem happy with either formulation, because the suggested lines of demarcation would become a bit fuzzy when hypotheticals tested them.

Paul R. Kleven, a Berkeley, California, lawyer representing two brothers who were stopped by police on a California highway based on a tip that their pickup had run another motorist off the road, went to the lectern to make the rather simple plea that a claim by a 911 caller of reckless driving should not justify a police stop of the vehicle based on a “sliding scale” of how serious the alleged crime had been.

But he was led into a concession that maybe the Court would want to find a way to create an exception if the tipster had said that someone was driving into Los Angeles with an atomic bomb with the intent to explode it, or had said that he had seen a kidnapping in which a child was put into the trunk of a car that then drove off.

But even that concession was not acceptable to some; Justice Antonin Scalia said that, if Kleven were willing to make those exceptions, then the constitutional question was nothing but an argument about details, so where was the dividing line under the Fourth Amendment?

Two other lawyers — for California, a deputy assistant attorney general, Jeffrey M.K. Laurence, and for the federal government, Assistant to the Solicitor General Rachel P. Kovner — went to the lectern to argue that highway safety is such a serious threat that police should be able to act upon an anonymous tip if it had some reliable but innocent detail, and the claim was about reckless or drunk driving.

But both were soon confronted with suggestions from the bench that the innocent details may not tell much about whether the safety risk was real, and that making the options for the police depend upon the nature of the crime was not much of a guide, unless the line between serious and non-serious could be drawn with some specificity.

With some exasperation, Justice Elena Kagan said: “All crime is a threat to public safety, and yet we have these standards.”

The problem was, though, that the standards which the three lawyers offered wound up being riddled by hypotheticals.  Everyone understood, of course, that the hypotheticals were designed to help define limits on police reliance on anonymous callers.  But they did tend to suggest that the limits are, alas, in the eye of the beholder.

Recommended Citation: Lyle Denniston, Argument recap: Pushing the hypotheticals, SCOTUSblog (Jan. 21, 2014, 4:47 PM),