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.