As I pointed out not long ago, the “facts” in appellate opinions are not the same as the, well, facts that lowly people like you and me must deal with. You know, the things that the Oxford English Dictionary defines as “[s]omething that has really occurred or is actually the case; . . . a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or fiction.”
Judges get to live in the land of “conjecture or fiction.” Consider the Court’s recent 5-4 decision in Navarette v. California.
Navarette deals with two very important issues—the fight against drunk driving on the one hand and the limits on police on the other. The majority opinion, by Justice Clarence Thomas, held that police officers may stop a driver to check whether he is drunk based solely on an anonymous call to a 911 dispatcher. Justice Antonin Scalia wrote a spirited dissent, calling the majority opinion “a freedom-destroying cocktail.”
The issue was this: When can the police rely on an anonymous tip of dangerous driving as a reason to stop a car to see if the driver is drunk? One August afternoon in 2008, 911 dispatch in Humboldt County, California, got a call from a driver reporting that a specific silver Ford pickup truck, license number supplied, had driven her off the southbound Pacific Coast Highway five minutes earlier. Highway Patrol officers found and trailed the car. It seemed to be driving normally. Nonetheless, they pulled the car over, supposedly to see whether the driver, Lorenzo Navarette, was drunk. He was not; but he was transporting 30 pounds of weed, which, the officers later said, was right there in plain smell.
The Fourth Amendment protects people and property from “unreasonable searches and seizures.” That means cops can’t just stop any vehicle they want on the off chance that the driver is Jesse Pinkman with a load of meth. Courts require a “reasonable suspicion” that the specific person being stopped has done something criminal. The courts have also held that the mere fact that a police officer has gotten (or claims to have gotten) a tip does not create by itself “reasonable suspicion.” The tip must either be from a known and credible source, or, if anonymous, must itself contain “indicia of reliability,” such as detailed predictions of what the suspect will do or other information to suggest that the secret tipster has more than malice in mind. The call in Navarette described an incident of dangerous driving and gave the car’s license number and direction of travel. That by itself might not be enough.
As it reached the Supreme Court, thus, Navarette was a case about anonymous 911 callers. But the 911 call in Navarette was not, in what for lack of a better word I will call fact, anonymous at all.
According to the record in the case, the caller gave the 911 operator her name. But at the outset of the trial, the prosecutor summoned the wrong 911 operator and wasn’t able to get the actual recording of the call into evidence. The case had to progress as if the call had been anonymous.
Well, you might say, no harm, no foul. It’s an important issue and the Court needed to decide it. But consider that Thomas’s opinion turned almost entirely on factual speculations. (Thomas was aware of the record below, and references it obliquely in his opinion.) Reasonable suspicion depends on “the factual and practical considerations of everyday life on which reason-able and prudent men, not legal technicians, act,” Thomas wrote, quoting case law. In this case, the decision to stop seemed reasonable.
Why? Some 911 systems, Thomas wrote, have technological “features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.” So, since a 911 call may not be anonymous at all, “a reasonable officer could conclude that a false tipster would think twice before using such a system.”
Scalia (writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) noted an amicus brief from the National Association of Criminal Defense Lawyers suggesting that 911 systemsc can be used for false tips without fear of detection. He then wrote, “the present case surely suggests that amici are right—since we know neither the identity of the tipster nor even the county from which the call was made. But assuming the [majority] is right about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the anonymous caller was aware of that fact.” (This isn’t a second Scalia-mistake story; references in the opinion make clear that Scalia also knew the record below.)
The majority relies on the idea that anonymous tips won’t happen; in a case where one didn’t happen, is there really any basis to assess whether one will? The dissent says that we don’t know whether the caller in “the present case” knew that her call wasn’t anonymous. Except, well, we do, since she, well, gave her name. So “the present case surely” suggests none of the things Scalia claims it does.
Thus, the justices were quarreling over facts, but we don’t have any. None at all.
I spent a few days making calls, and as far as I can tell there are no studies—none I could find anyway—of how often anonymous tipsters falsely target drivers with allegations of drunk driving. The Center for Problem Oriented Policing notes on its website that “There is little evaluative research on 911 misuse and abuse.” The closest I’ve found is a section of the NACDL brief (Scalia was referring to this) reporting three instances in which cops abused 911. In one case, a Montana police officer played politics by phoning in a phony tip that the mayor was driving drunk; in a second, a North Carolina cop called a bar and told a drinker that that there were ambulances at his house. The victim rushed to his car, and the officer had him arrested for DUI. In a third case, Michigan police phoned in phony tips that a driver had drugs and a gun, because they knew the driver was on “supervised release” and hoped to find an excuse to jail him.
Those are examples of serious misconduct. But they are, to use correctly an overused term, purely anecdotal. We know that some 911 systems track identities. We also know that as recently as 2009 the California Office of Traffic Safety was issuing FAQs assuring the public that “You can remain anonymous” while reporting a suspected drunk driver. I don’t know whether that’s still true. I don’t know whether other states and cities make the same promise. Neither did the Court.
Why did the Court grant cert. in Navarette? In 2009, the Court denied cert. in a similar case. In a dissent from that denial, Chief Justice John Roberts wrote that “[t]his is an important question that is not answered by our past decisions, and that has deeply divided federal and state courts. The Court should grant the petition for certiorari to answer the question and resolve the conflict.” Justice Scalia joined that opinion. Evidently both Justices were eager to get a case and create a rule.
Now we have a rule: An anonymous tip constitutes "reasonable suspicion" of drunk driving." I think I agree with the majority. But the legal mummery involved—with one side solemnly pretending to know facts they don’t and the other pretending not to know facts they do—is unsettling.
“Lawyers know life practically,” Samuel Johnson once said. “A bookish man should always have them to converse with." I can only assume that he did not often converse with appellate judges.
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