Justices won't review case involving anonymous tip about suspected drunken driving

By Robert Barnes
Wednesday, October 21, 2009

A Virginia Supreme Court decision that overturned a conviction for drunken driving could result in the commonwealth's intoxicated drivers being given "one free swerve" before being pulled over, with potentially disastrous consequences, U.S. Chief Justice John G. Roberts Jr. wrote Tuesday.

The full Supreme Court said it will not review the 4 to 3 decision by Virginia's high court that an anonymous tip about an allegedly drunken driver is not a sufficient reason for law enforcement officers to stop the person. As is customary, the justices did not give a reason for denying the commonwealth's request to review the decision.

But Roberts, joined by Justice Antonin Scalia, said his colleagues were making a mistake.

"It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check," Roberts wrote in his dissent. He needed the support of three colleagues for the court to review the Virginia decision.

In the case, a Richmond police officer pulled over Joseph A. Moses Harris Jr. after receiving a tip that Harris was driving while intoxicated. The tip described Harris, his car and the direction in which he was driving, and police soon found him.

The officer did not observe Harris driving erratically but stopped him based on the tip. The officer reported that Harris reeked of alcohol, stumbled getting out of the car and failed a sobriety test. Harris was convicted of driving while intoxicated.

But the Virginia Supreme Court overturned the conviction. Because the officer had not independently verified that Harris was driving dangerously, the court said, he had violated the constitutional protection against unreasonable search and seizure.

Roberts demurred. "I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving," he wrote.

The chief justice acknowledged that the court's precedents treat anonymous tips with suspicion, because of the potential for mischief in people making complaints against those they dislike or want to trouble.

The Virginia court relied on a Supreme Court precedent that suppressed evidence in the case of a man who was arrested on charges of carrying a gun based solely on an anonymous tip.

But Roberts, who began his dissent by saying that "close to 13,000 people die in alcohol-related car crashes -- roughly one every 40 minutes," said drunken driving is different.

"The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases," he said. He added that the court has upheld drunken-driving policies "that might be constitutionally problematic in other, less exigent circumstances."

Most federal and state courts that have considered the issue have held that police do not have to witness any traffic violations before following up on an anonymous tip, according to court documents. A few others have taken the same position as Virginia's high court.

"Maybe the decision of the Virginia Supreme Court below was correct," wrote Roberts, although he seemed not to believe it. But he said that "police should have every legitimate tool at their disposal for getting drunk drivers off the road" and that he would have granted the case "to determine if this is one of them."

The case is Virginia v. Harris.

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