Six thoughts on Navarette v. California

April 22

As Jonathan noted earlier, the Supreme Court has handed down Navarette v. California. Here are six thoughts about the new case:

1) I think the majority opinion by Justice Thomas is persuasive. Notably, the majority opinion avoids the bright-line rule that the state really wanted and instead resolves this case on appropriately narrow grounds. Although this is a “close case,” Justice Thomas writes, “under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspi­cion that the driver of the reported vehicle had run another vehicle off the road.” I think that conclusion is correct. Indeed, it matches what I wrote in my blog post on the case from January.

2) I have one disagreement with the reasoning in the majority opinion. On page 7 of the slip opinion, the majority says that the fact that the call came in via 911 is a relevant factor in favor of reliability because 911 calls can be recorded and FCC regulations require the number of the 911 caller to be passed on to the dispatcher. On this point, I agree with the dissent: I don’t see how FCC regulations are relevant. Very few people have any idea what the FCC regulations say about 911 caller ID. As a result, such facts seem very unlikely to impact the reliability of 911 calls as compared to other anonymous tips.

3) In my earlier posts, I had overlooked a really interesting Fourth Amendment issue lurking in the background that the majority and dissent note but don’t resolve: Do the principles of Terry v. Ohio allow a stop based on evidence of a prior non-felony completed offense? The Court left this issue open in United States v. Hensley. The question reappears in Navarette because the report of being run off the road could be construed as either a tip about an ongoing crime (drunk driving) or a past crime (reckless driving, attempted assault, etc., when the driver ran the caller off the road). The majority assumes that Terry is limited to evidence of an ongoing non-felony crime so as to not reach the issue. See footnote 2. Justice Scalia’s dissent make the same assumption. At the same time, I’m not sure the assumption is correct or that it applies here. The logic of Terry and Hensley extends to this case, as this case involves a public safety threat as specifically mentioned in Hensley. If I’m right about that, then stopping to investigate a past offense becomes permissible in these circumstances and the case should become significantly stronger for the government.

4) Jonathan suggests that the line-up in the case is interesting. Notably, though, it’s the same line-up we saw recently in another Fourth Amendment case, Maryland v. King. As I noted last year, no one should be surprised when Justice Breyer votes for the government and Justice Scalia votes for the defense in Fourth Amendment cases. If anything, the modest surprise is that Justice Thomas was assigned the opinion. It’s somewhat uncommon for Thomas to get 5-4 opinion assignments, in part because Justice Thomas is less likely to compromise his views to keep a bare majority on board.

5) The dissent is classic Scalia. First, it has the usual over-the-top rhetoric. Sticking with the drunk driving theme, Scalia describes the majority opinion as a “freedom-destroying cocktail consisting of two parts patent falsity.” And Justice Scalia also interprets the majority opinion as being far broader than its language suggests, another common Scalia move in dissent (see Maryland v. King, Lawrence v. Texas, etc.).

6) The tone of Justice Scalia’s dissent is interesting in light of his opinion in Whren v. United States. In Whren, Justice Scalia wrote the majority opinion allowing a traffic stop based on probable cause to believe that any civil traffic violation was committed. The defense had argued that this gave officers vast powers to stop pretty much everyone, as it was nearly impossible to drive without violating at least some kind of traffic regulation. Justice Scalia found this irrelevant:

[W]e are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.

Justice Scalia sounds rather different when he discusses traffic stops in Navarette. He writes that a traffic stop means “the loss of our freedom to come and go as we please without police interference.” He invokes the Framers, and he laments lost freedom: “After today’s opinion all of us on the road, and not just drug dealers, are at risk of hav­ing our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.” To be clear, this conclusion isn’t directly in conflict with Whren. But the change in tone about traffic stops is interesting. And that same single episode of careless driving would already allow a traffic stop by an officer under Justice Scalia’s opinion in Whren, whether evidence of a crime or not, at least when an officer had probable cause to believe it occurred.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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