Thomas v. Scalia on traffic stops

Today the U.S. Supreme Court decided Navarette v. California, a case concerning when the police have the authority to stop a vehicle due to a reasonable suspicion that the driver may be intoxicated.  Justice Thomas wrote for the majority, concluding that under the totality of the circumstances presented in this case, which included a 911 call from another driver who claimed to have been run off the road, it was reasonable to stop Prado Naverette’s truck.  After stopping the vehicle, the officers smelled marijuana, looked in the truck’s bed, and discovered 30 pounds of marijuana.

One of the things that is interesting about the Court’s decision in Naverette is the line-up.  Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Breyer.  Justice Scalia dissented, joined by Justices Ginsburg, Sotomayor and Kagan.  According to Justice Scalia, an anonymous 911 call reporting one incident of erratic driving is not sufficiently reliable to provide for reasonable suspicion that a driver is impaired and is thus insufficient to justify a traffic stop. His opinion concludes:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the
caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. 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.

The opinions are available here.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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Jonathan H. Adler · April 22, 2014