The SCOTUS recently rejected an appeal of a case decided by the Virginia Supreme Court that ruled an anonymous tip alone is not sufficient evidence to stop a suspected drunk driver for a field sobriety test. The responding officer must observe illegal activity themselves before the stop can be made.

Chief Justice Roberts, joined by Antonin Scalia strongly dissented the rejection of the case, with Roberts writing "The effect of the rule ... will be to grant drunk drivers 'one free swerve' before they can legally be pulled over by police."

This is interesting to us because it appears that the rejection was based at least partly on the unanimous decision by the SCOTUS in the 2000 case Florida v. J. L., in which an anonymous tip that a man was carrying a firearm resulted an the illegal search and firearm charge. It eventually reached the SCOTUS, which ruled in favor of the defendant, and in so doing, declined to create a "firearms exception" to the Terry Stop doctrine.

Very interesting case to be sure. I don't know what the moral of the story is here... maybe to stay on the phone with the 911 dispatcher and be a witness to allow the stop before the drunk driver actually kills someone?


ETA: Oh, I meant to post this blog entry along with this story... got carried away in my introduction!

See original post for embedded links, including the original CSM story.

Supreme Court upholds ban on traffic stops based on a caller's tip

According to a report in the Christian Science Monitor (the entirety of which you can read below), the United States Supreme Court “has let stand a ruling in Virginia that police officers must personally observe erratic driving before stopping a suspected drunken driver.” In point of fact, the Court turned down (without comment) the opportunity to hear an appeal.

Expectedly, the response from PoliceOne readers has been immediate and impassioned.

“So what the court in general is saying is that if a police officer does not witness the commission of a crime then it did not occur,” said one of our members.

“Drunks everywhere are cheering. But it’s the cops who'll still take the blame when Joe Drunk wipes out a family of four in a drunken T-bone collision,” said another.

“What’s next? Does the offender have to actually cause an accident or hit someone?” said a still another P1 member. “As long as there is evidence of erratic driving by anyone with two eyes and a brain, they should be able to report it.”

Even the Washington Post, which typically leans the other direction on such matters, expressed outrage over this news, saying atop today’s editorial page that the Supreme Court has let stand “a bad Virginia decision on drunken driving,” and gives drunks “one free swerve.”

“While it’s a travesty that the Virginia high court has made it harder for police officers to act on such tips, it is not impossible. Citizens should continue to blow the whistle on suspected drunk drivers,” the Post concluded.

While you were adding your comments below, we were in contact with Terry Dwyer, one of our legal experts who also serves as a regular columnist on matters related to police liability and litigation. An attorney since 1991, Dwyer represents police officers in disciplinary cases and critical incidents while serving as General Counsel to a New York State law enforcement union.

Dwyer told us that “the Court’s decision to reject cert on this case would seem to be dependent on its prior ruling in Florida v. J.L., which apparently was the reason for the Virginia court's suppression of the intox evidence. I can't say I agree with the Chief Judge's analysis in the dissent. To say the J.L. decision may be narrowly viewed as being applied to anonymous tips related to gun possession allegations is legal hair splitting at its best. The Court has, in other cases, rejected this application of a per se rule to offenses based on seriousness. For example, the government has in the past argued for narcotics exceptions, and robbery exceptions, due the concern as to where the law draws the line. The Fourth Amendment requirements are straightforward in the sense of probable cause or the lesser reasonable suspicion standard of Terry v. Ohio where a crime has been or is in the process of being committed.”

Dwyer, a 22-year veteran (ret.) of the New York State Police and now Assistant Professor in the Justice and Law Administration Department at Western Connecticut State University, said that while it is regretful that a criminal suspect gets off, the exclusionary rule is a judicially-crafted remedy for Fourth Amendment constitutional violations.

“The scenario here is unfortunate because what we have from the facts is a conscientious officer performing his duties in a professional manner with no malfeasance on his part in the performance of those duties. However, just as in the scenario of the J.L. case, had the officer taken a moment to make an independent determination for himself as to the erratic driving and to corroborate the anonymous tip then we would not be discussing this issue. The officer cannot be faulted and we know good intentions do not apply here because the "good faith exception" is limited to those made by the judiciary or the clerical type of errors discussed in Herring v. U.S. last term by the Supreme Court.”

Dwyer further tells PoliceOne that a bit of history may be instructive with regard to the dissent of Justice Roberts, who was a young lawyer in the Reagan White house and wrote an extensive briefing memo as to why (and how) the exclusionary rule should be done away with.

“We have already witnessed a very active Roberts-led Supreme Court in the area of Constitutional criminal procedure and the results have not always been what we would expect from this court.”

Dwyer says that for PoliceOne readers seeking additional information on that, you can look at our coverage of Arizona v. Gant, (in which the court overruled 28 years of history in Belton).

“Legally I don't have a problem with the denial of cert, nor the Virginia Court holding based on the precedent, especially Florida v. J.L.,” Dwyer concldued. “I see this case as an excellent instructional case for review to make our officers more aware of the subtleties of the Fourth Amendment.”

PoliceOne will continue to follow this story and provide additional updates as they become available. Meanwhile, add your voice to the conversation by adding your comments below.