PRADO NAVARETTE ET AL. v. CALIFORNIA SUPREME
COURT OF THE UNITED STATES
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Syllabus
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CERTIORARI
TO THE COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT
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No. 12–9490. Argued January 21,
2014—Decided April 22, 2014
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A California Highway Patrol officer stopped
the pickup truck occupiedby petitioners because it matched the description of
a vehicle that a 911 caller had recently reported as having run her off the
road. As he and a second officer
approached the truck, they smelled marijuana.They searched the truck’s bed,
found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence,
arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded
guilty to transporting marijuana. The California Court of Appeal affirmed,
concluding that the officerhad reasonable suspicion to conduct an
investigative stop.
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Held:
The traffic stop complied with the Fourth Amendment because,under the
totality of the circumstances, the officer had reasonablesuspicion that the
truck’s driver was intoxicated. Pp.
3–11.
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(a) The Fourth Amendment permits brief investigative
stops whenan officer has “a particularized and objective basis for suspecting
the particular person stopped of . . . criminal activity.” United States
v. Cortez, 449 U. S. 411, 417–418.
Reasonable suspicion takes into account “the totality of the
circumstances,” id., at 417, and depends“upon both the content of
information possessed by police and its degree of reliability,” Alabama
v. White, 496 U. S. 325, 330.
An anonymous tip alone seldom demonstrates sufficient reliability, White,
496
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U. S., at 329, but may do so under appropriate
circumstances, id., at
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327.
Pp. 3–5.
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(b)
The 911 call in this case bore adequate indicia of reliability forthe officer
to credit the caller’s account. By reporting that she had been run off the
road by a specific vehicle, the caller necessarilyclaimed an eyewitness basis
of knowledge. The apparently short
time between the reported incident and the 911 call suggests that the
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caller
had little time to fabricate the report.
And a reasonable officer could conclude that a false tipster would
think twice before using the911 system, which has several technological and
regulatory features that safeguard against making false reports with
immunity. Pp. 5–8.
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(c) Not only was the tip here reliable, but it also
created reasonablesuspicion of drunk driving.
Running another car off the road suggests the sort of impairment that
characterizes drunk driving. While
that conduct might be explained by another cause such as driver distraction,
reasonable suspicion “need not rule out the possibility of innocent
conduct.” United States v. Arvizu,
534 U. S. 266, 277. Finally,the
officer’s failure to observe additional suspicious conduct during the short
period that he followed the truck did not dispel the reasonable suspicion of
drunk driving, and the officer was not required tosurveil the truck for a
longer period. Pp. 8–10.
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Affirmed.
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THOMAS,
J., delivered the opinion of the Court, in which ROBERTS,
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C.
J., and KENNEDY, BREYER,
and ALITO, JJ., joined. SCALIA,
J., filed a dissenting opinion, in which GINSBURG,
SOTOMAYOR, and KAGAN,
JJ., joined.
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Opinion
of the Court
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NOTICE: This opinion is subject to formal
revision before publication in thepreliminary print of the United States
Reports. Readers are requested tonotify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543, of any typographical or
other formal errors, in orderthat corrections may be made before the
preliminary print goes to press.
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SUPREME COURT OF THE
UNITED STATES
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No. 12–9490
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LORENZO
PRADO NAVARETTE AND JOSE PRADO NAVARETTE, PETITIONERS v. CALIFORNIA
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ON WRIT OF
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT
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[April 22, 2014]
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JUSTICE THOMAS delivered
the opinion of the Court.
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After a 911 caller reported that a vehicle had run her
off the road, a police officer located the vehicle she identified during the
call and executed a traffic stop. We
hold that the stop complied with the Fourth Amendment because, under the
totality of the circumstances, the officer hadreasonable suspicion that the
driver was intoxicated.
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I On
August 23, 2008, a Mendocino County 911 dispatchteam for the California
Highway Patrol (CHP) received acall from another CHP dispatcher in
neighboring Humboldt County. The Humboldt County dispatcher relayed atip
from a 911 caller, which the Mendocino County teamrecorded as follows:
“‘Showing southbound Highway 1 at mile marker 88, Silver Ford 150
pickup. Plate of 8-David94925. Ran
the reporting party off the roadway and was last seen approximately five
[minutes] ago.’ ” App. 36a.The Mendocino County team then broadcast that
information to CHP officers at 3:47 p.m.A CHP officer heading northbound
toward the reportedvehicle responded to the broadcast. At 4:00 p.m., the
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Opinion of
the Court
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officer
passed the truck near mile marker 69.
At about
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4:05 p.m.,
after making a U-turn, he pulled the truck over.A second officer, who had
separately responded to the broadcast, also arrived on the scene. As the two
officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30
pounds of marijuana. The officers
arrested the driver, petitioner Lorenzo PradoNavarette, and the passenger,
petitioner José PradoNavarette.
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Petitioners
moved to suppress the evidence, arguingthat the traffic stop violated the
Fourth Amendment because the officer lacked reasonable suspicion of
criminalactivity. Both the magistrate who presided over the suppression hearing
and the Superior Court disagreed.1 Petitioners pleaded guilty to
transporting marijuana and were sentenced to 90 days in jail plus three years
of probation.
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The California Court of Appeal affirmed, concludingthat
the officer had reasonable suspicion to conduct aninvestigative stop. 2012 WL
4842651 (Oct. 12, 2012). The court
reasoned that the content of the tip indicated that itcame from an eyewitness
victim of reckless driving, and that the officer’s corroboration of the
truck’s description, location, and direction established that the tip was
reliable enough to justify a traffic stop.
Id., at *7. Finally, thecourt concluded that the caller
reported driving that wassufficiently dangerous to merit an investigative
stop without waiting for the officer to observe additional reckless driving
himself. Id., at *9. The California Supreme Court
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—————— 1At
the suppression hearing, counsel for petitioners did not disputethat the
reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt
County dispatcher who received the call was present at the hearing, however,
the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip
as anonymous, and the lower courtsfollowed suit. See 2012 WL 4842651, *6 (Cal. Ct. App.,
Oct. 12, 2012).
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Opinion of
the Court
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denied review. We granted certiorari, 570 U. S. ___
(2013), and now affirm.
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II The
Fourth Amendment permits brief investigativestops—such as the traffic stop in
this case—when a law enforcement officer has “a particularized and
objectivebasis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U. S. 411, 417– 418
(1981); see also Terry v. Ohio, 392 U. S. 1, 21–22 (1968). The
“reasonable suspicion” necessary to justify such a stop “is dependent upon
both the content of information possessed by police and its degree of
reliability.” Alabama v. White, 496 U. S. 325, 330 (1990). The standard takes into account “the
totality of the circumstances—the whole picture.” Cortez, supra,
at 417. Although a mere “‘hunch’” does
not create reasonable suspicion, Terry, supra, at 27, the level
of suspicion the standard requires is “considerably less than proof of
wrongdoing by a preponderance of the evidence,” and “obviously less” than is
necessary for probable cause, United States v. Sokolow, 490 U.
S. 1, 7 (1989).
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A These
principles apply with full force to investigativestops based on information
from anonymous tips. We have firmly rejected the argument “that reasonable
cause for a[n investigative stop] can only be based on the officer’s personal
observation, rather than on information supplied by another person.” Adams
v. Williams, 407 U. S. 143, 147 (1972). Of course, “an anonymous tip alone
seldom demonstrates the informant’s basis of knowledge or veracity.” White,
496 U. S., at 329 (emphasis added).
That is because “ordinary citizens generally do not provide extensive
recitations of the basis of their everyday observations,” and an anonymous
tipster’s veracity is “‘by hypoth
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esis largely unknown, and unknowable.’” Ibid. But under appropriate circumstances, an
anonymous tip can demonstrate “sufficient indicia of reliability to provide
reasonable suspicion to make [an] investigatory stop.” Id., at 327.
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Our
decisions in Alabama v. White, 496 U. S. 325 (1990), and Florida
v. J. L., 529 U. S. 266 (2000), are useful guides. In White, an
anonymous tipster told the police that a woman would drive from a particular
apartment building to a particular motel in a brown Plymouth station wagon
with a broken right tail light. The
tipster furtherasserted that the woman would be transporting cocaine.496 U.
S., at 327. After confirming
the innocent details,officers stopped the station wagon as it neared the
moteland found cocaine in the vehicle.
Id., at 331. We held that the officers’ corroboration of
certain details made the anonymous tip sufficiently reliable to create
reasonable suspicion of criminal activity.
By accurately predictingfuture behavior, the tipster demonstrated “a
special familiarity with respondent’s affairs,” which in turn impliedthat
the tipster had “access to reliable information aboutthat individual’s
illegal activities.” Id., at
332. We also recognized that an
informant who is proved to tell the truth about some things is more likely to
tell the truthabout other things, “including the claim that the object ofthe
tip is engaged in criminal activity.” Id., at 331 (citing Illinois
v. Gates, 462 U. S. 213, 244 (1983)).
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In J.
L., by contrast, we determined that no reasonable suspicion arose from a
bare-bones tip that a young black male in a plaid shirt standing at a bus
stop was carrying a gun. 529 U. S., at 268. The tipster did not explain how
heknew about the gun, nor did he suggest that he had any special familiarity
with the young man’s affairs. Id., at
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271. As a
result, police had no basis for believing “that the tipster ha[d] knowledge
of concealed criminal activity.” Id., at 272. Furthermore, the tip included no
predictionsof future behavior that could be corroborated to assess the
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Opinion of
the Court
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tipster’s credibility. Id., at 271. We
accordingly concluded that the tip was insufficiently reliable to justify a
stop and frisk.
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B The
initial question in this case is whether the 911 callwas sufficiently
reliable to credit the allegation that petitioners’ truck “ran the [caller]
off the roadway.” Even assuming for present purposes that the 911 call was
anonymous, see n. 1, supra, we conclude that the call bore adequate
indicia of reliability for the officer to credit thecaller’s account. The officer was therefore justified in
proceeding from the premise that the truck had, in fact, caused the caller’s
car to be dangerously diverted from the highway.By reporting that she had
been run off the road by aspecific vehicle—a silver Ford F-150 pickup,
license plate 8D94925—the caller necessarily claimed eyewitness knowledge of
the alleged dangerous driving. That
basis of knowledge lends significant support to the tip’s reliability.See Gates,
supra, at 234 (“[An informant’s] explicit and detailed description of
alleged wrongdoing, along with astatement that the event was observed
firsthand, entitles his tip to greater weight than might otherwise be
thecase”); Spinelli v. United States, 393 U. S. 410, 416 (1969)
(a tip of illegal gambling is less reliable when “it is not alleged that the
informant personally observed [the defendant] at work or that he had ever
placed a bet with him”). This is in contrast to J. L., where the tip
providedno basis for concluding that the tipster had actually seenthe gun.
529 U. S., at 271. Even in White,
where we upheld the stop, there was scant evidence that the tipsterhad
actually observed cocaine in the station wagon. We called White a
“‘close case’” because “[k]nowledge about aperson’s future movements
indicates some familiarity with that person’s affairs, but having such
knowledge does not
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6 PRADO NAVARETTE v. CALIFORNIA
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Opinion of the Court
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necessarily
imply that the informant knows, in particular,whether that person is carrying
hidden contraband.” 529
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U. S., at
271. A driver’s claim that another
vehicle ran her off the road, however, necessarily implies that the informant
knows the other car was driven dangerously.
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There is
also reason to think that the 911 caller in this case was telling the
truth. Police confirmed the truck’s
location near mile marker 69 (roughly 19 highway miles south of the location
reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911
call). That timeline of events suggests that the caller reported the incident
soon after she was run off the road. That sort of contemporaneous report has
long been treated as especially reliable. Inevidence law, we generally credit
the proposition thatstatements about an event and made soon after
perceivingthat event are especially trustworthy because “substantial
contemporaneity of event and statement negate the likelihood of deliberate
or conscious misrepresentation.” Advisory
Committee’s Notes on Fed. Rule Evid. 803(1), 28
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U. S. C.
App., p. 371 (describing the rationale for thehearsay exception for “present
sense impression[s]”). A similar rationale applies to a “statement relating
to a startling event”—such as getting run off the road—“madewhile the
declarant was under the stress of excitement that it caused.” Fed. Rule Evid. 803(2) (hearsay exception
for “excited utterances”). Unsurprisingly, 911 calls thatwould otherwise be
inadmissible hearsay have often beenadmitted on those grounds. See D. Binder, Hearsay Handbook §8.1, pp.
257–259 (4th ed. 2013–2014) (citing cases admitting 911 calls as present
sense impressions); id., §9.1, at 274–275 (911 calls admitted as
excited utterances). There was no indication that the tip in J. L. (oreven
in White) was contemporaneous with the observation of criminal
activity or made under the stress of excitementcaused by a startling event,
but those considerationsweigh in favor of the caller’s veracity here.
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Opinion of
the Court
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Another
indicator of veracity is the caller’s use of the 911 emergency system. See
Brief for Respondent 40–41,44; Brief for United States as Amicus Curiae
16–18. A 911 call has some features that allow for identifying and tracing
callers, and thus provide some safeguards against making false reports with
immunity. See J. L., supra, at 276 (KENNEDY, J.,
concurring). As this case illustrates, see n. 1, supra, 911 calls can
be recorded, which provides victims with an opportunity to identify the false
tipster’s voice and subject him to prosecution, see, e.g., Cal. Penal
Code Ann. §653x (West 2010) (makes “telephon[ing] the 911 emergency line with
the intent to annoy or harass”punishable by imprisonment and fine); see also
§148.3(2014 West Cum. Supp.) (prohibits falsely reporting “that an
‘emergency’ exists”); §148.5 (prohibits falsely reporting “that a felony or
misdemeanor has been committed”). The
911 system also permits law enforcement to verify important information
about the caller. In 1998, the Federal
Communications Commission (FCC) began to require cellular carriers to relay
the caller’s phone number to 911 dispatchers.
47 CFR §20.18(d)(1) (2013) (FCC’s “Phase Ienhanced 911 services”
requirements). Beginning in 2001, carriers have been required to identify the
caller’s geographic location with increasing specificity. §§20.18(e)–(h)
(“Phase II enhanced 911 service” requirements). And although callers may ordinarily block
call recipients fromobtaining their identifying information, FCC
regulationsexempt 911 calls from that privilege. §§64.1601(b),(d)(4)(ii)
(“911 emergency services” exemption from rulethat, when a caller so requests,
“a carrier may not revealthat caller’s number or name”). None of this is to suggest that tips in 911
calls are per se reliable. Given the foregoing technological and
regulatory developments, however, a reasonable officer could conclude that a
false tipster would think twice before using such a system. The caller’s use of the 911 system is
therefore one of the relevant circum
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Opinion of
the Court
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stances that, taken together, justified the officer’s
reliance on the information reported in the 911 call.
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C Even a
reliable tip will justify an investigative stop only if it creates reasonable
suspicion that “criminal activity may be afoot.” Terry, 392 U. S., at
30. We must therefore determine
whether the 911 caller’s report of being run offthe roadway created
reasonable suspicion of an ongoing crime such as drunk driving as opposed to
an isolated episode of past recklessness.
See Cortez, 449 U. S., at 417 (“An investigatory stop must be
justified by some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity”).
We conclude that the behavior alleged by the 911 caller, “viewed from
thestandpoint of an objectively reasonable police officer,amount[s] to
reasonable suspicion” of drunk driving. Ornelas v. United States,
517 U. S. 690, 696 (1996). The stop
was therefore proper.2 Reasonable
suspicion depends on “‘“the factual and practical considerations of everyday
life on which reason- able and prudent men, not legal technicians, act.”’” Id.,
at
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695. Under that commonsense approach, we can appropriately
recognize certain driving behaviors as sound indicia of drunk driving. See, e.g., People v. Wells,
38 Cal. 4th 1078, 1081, 136 P. 3d 810, 811 (2006) (“‘weaving all over the roadway’”);
State v. Prendergast, 103 Haw. 451, 452–453, 83 P. 3d 714, 715–716
(2004) (“cross[ing]over the center line” on a highway and “almost
caus[ing]several head-on collisions”); State v. Golotta, 178 N.
J. 205, 209, 837 A. 2d 359, 361 (2003) (driving “‘all over the road’” and
“‘weaving back and forth’”); State v.
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—————— 2Because
we conclude that the 911 call created reasonable suspicion of an ongoing
crime, we need not address under what circumstances a stop is justified by
the need to investigate completed criminal activity. Cf. United States
v. Hensley, 469 U. S. 221, 229 (1985).
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Opinion of
the Court
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Walshire, 634 N.
W. 2d 625, 626 (Iowa 2001) (“driving inthe median”). Indeed, the accumulated
experience of thousands of officers suggests that these sorts of
erraticbehaviors are strongly correlated with drunk driving.See Nat. Highway
Traffic Safety Admin., The Visual Detection of DWI Motorists 4–5 (Mar. 2010),
online athttp://nhtsa.gov/staticfiles/nti/pdf/808677.pdf
(as visited Apr. 18, 2014, and available in Clerk of Court’s case
file).Of course, not all traffic infractions imply intoxication.Unconfirmed
reports of driving without a seatbelt orslightly over the speed limit, for
example, are so tenuously connected to drunk driving that a stop on those
grounds alone would be constitutionally suspect. But a reliable tipalleging the dangerous
behaviors discussed above gener- ally would justify a traffic stop on
suspicion of drunk driving.
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The 911
caller in this case reported more than a minor traffic infraction and more
than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specificand
dangerous result of the driver’s conduct: runninganother car off the
highway. That conduct bears too greata
resemblance to paradigmatic manifestations of drunk driving to be dismissed
as an isolated example of recklessness. Running another vehicle off the road
suggests lanepositioning problems, decreased vigilance, impaired judgment,
or some combination of those recognized drunk driving cues. See Visual Detection of DWI Motorists 4–5.
And the experience of many officers suggests that a driverwho almost strikes
a vehicle or another object—the exact scenario that ordinarily causes
“running [another vehicle] off the roadway”—is likely intoxicated. See id., at 5,8. As a result, we
cannot say that the officer acted unreasonably under these circumstances in
stopping a driverwhose alleged conduct was a significant indicator of drunk
driving.
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Petitioners’
attempts to second-guess the officer’s rea
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Opinion of
the Court
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sonable
suspicion of drunk driving are unavailing.
It is true that the reported behavior might also be explained by, for
example, a driver responding to “an unruly child orother distraction.” Brief for Petitioners 21. But we have consistently recognized that
reasonable suspicion “need not rule out the possibility of innocent conduct.”
United States v. Arvizu, 534 U. S. 266, 277 (2002).
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Nor did the absence of additional suspicious
conduct,after the vehicle was first spotted by an officer, dispel the
reasonable suspicion of drunk driving.
Brief for Petitioners 23–24. It is hardly surprising that the
appearance of a marked police car would inspire more careful driving for
atime. Cf. Arvizu, supra, at 275 (“‘[s]lowing down afterspotting a law
enforcement vehicle’” does not dispel reasonable suspicion of criminal
activity). Extended observation of an
allegedly drunk driver might eventually dispel a reasonable suspicion of
intoxication, but the 5-minuteperiod in this case hardly sufficed in that
regard. Of course, an officer who
already has such a reasonable suspicion need not surveil a vehicle at length
in order topersonally observe suspicious driving. See Adams v. Williams, 407 U.
S., at 147 (repudiating the argument that “reasonable cause for a[n
investigative stop] can only be based on the officer’s personal
observation”). Once reasonable suspicion of drunk driving arises, “[t]he reasonableness
of the officer’s decision to stop a suspect does not turn on the availability
of less intrusive investigatory techniques.”
Sokolow, 490 U. S., at 11.
This would be a particularly inappropriate context to depart from
thatsettled rule, because allowing a drunk driver a second chance for
dangerous conduct could have disastrous consequences.
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III Like White, this is a
“close case.” 496 U. S., at 332. As in that case, the indicia of the 911 caller’s
reliability here
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are stronger than those in J. L., where we held
that a bare-bones tip was unreliable.
529 U. S., at 271. Although
the indicia present here are different from those wefound sufficient in White,
there is more than one way todemonstrate “a particularized and objective
basis for suspecting the particular person stopped of criminal activity.” Cortez,
449 U. S., at 417–418. 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 anothervehicle off the road. That made it reasonable under the
circumstances for the officer to execute a traffic stop. We accordingly affirm.
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It is so ordered.
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SCALIA, J.,
dissenting
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SUPREME COURT OF THE
UNITED STATES
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No. 12–9490
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LORENZO
PRADO NAVARETTE AND JOSE PRADO NAVARETTE, PETITIONERS v. CALIFORNIA
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ON WRIT OF
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT
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[April 22, 2014]
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JUSTICE SCALIA, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join,
dissenting.
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The
California Court of Appeal in this case relied onjurisprudence from the
California Supreme Court (adoptedas well by other courts) to the effect that
“an anonymousand uncorroborated tip regarding a possibly intoxicatedhighway
driver” provides without more the reasonable suspicion necessary to justify a
stop. People v. Wells,
38 Cal. 4th l078, 1082, 136 P. 3d 810, 812, (2006). See also, e.g., United States
v. Wheat, 278 F. 3d 722, 729–730 (CA8 2001); State v. Walshire,
634 N. W. 2d 625, 626–627, 630 (Iowa 2001).
Today’s opinion does not explicitly adopt such a departure from our
normal Fourth Amendmentrequirement that anonymous tips must be corroborated;
it purports to adhere to our prior cases, such as Florida v.
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J. L., 529 U.
S. 266 (2000), and Alabama v. White, 496
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U. S. 325
(1990). Be not deceived.
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Law
enforcement agencies follow closely our judgments on matters such as this,
and they will identify at once our new rule: So long as the caller identifies
where the car is, anonymous claims of a single instance of possibly
carelessor reckless driving, called in to 911, will support a traffic stop.
This is not my concept, and I am sure would not bethe Framers’, of a people
secure from unreasonablesearches and seizures. I would reverse the judgment
of
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SCALIA, J.,
dissenting
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the Court
of Appeal of California.
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I The
California Highway Patrol in this case knew nothing about the tipster on
whose word—and that alone—they seized Lorenzo and José Prado Navarette. They did not know her name.1 They did not know her phone number or
address. They did not even know where she calledfrom (she may have dialed in
from a neighboring county,App. 33a–34a). The tipster said the truck had “[run
her] off the roadway,” id., at 36a, but the police had no reason to
credit that charge and many reasons to doubt it, beginning withthe peculiar
fact that the accusation was anonymous. “[E]liminating accountability . . .
is ordinarily the very purpose of anonymity.”
McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 385
(1995) (SCALIA, J.,
dissenting).The unnamed tipster “can lie with impunity,” J. L., supra,
at 275 (KENNEDY, J.,
concurring). Anonymity is
especiallysuspicious with respect to the call that is the subject of the
present case. When does a victim complain to the policeabout an arguably
criminal act (running the victim off the road) without giving his identity,
so that he can accuse and testify when the culprit is caught?The question
before us, the Court agrees, ante, at 8, is whether the “content of
information possessed by police and its degree of reliability,” White,
496 U. S., at 330, gave the officers reasonable suspicion that the driver of
thetruck (Lorenzo) was committing an ongoing crime. When the only source of the government’s
information is an informant’s tip, we ask whether the tip bears sufficient
“‘indicia of reliability,’” id., at 328, to establish “a particularized
and objective basis for suspecting the particular —————— 1There was
some indication below that the tipster was a woman. See App. 18a. Beyond that detail, we must,
as the Court notes, ante, at 2,
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n. 1, assume that the identity of
the tipster was unknown.
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SCALIA, J.,
dissenting
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person
stopped of criminal activity,” United States v. Cortez, 449 U.
S. 411, 417–418 (1981).
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The most
extreme case, before this one, in which an anonymous tip was found to meet
this standard was White, supra.
There the reliability of the tip was established by the fact that
it predicted the target’s behavior inthe finest detail—a detail that could be
known only bysomeone familiar with the target’s business: She would, the
tipster said, leave a particular apartment building, getinto a brown Plymouth
station wagon with a broken right tail light, and drive immediately to a
particular motel. Id., at 327. Very few persons would have such
intimate knowledge, and hence knowledge of the unobservable fact that the
woman was carrying unlawful drugs was plausible. Id., at 332. Here the Court makes a big deal of thefact
that the tipster was dead right about the fact that a silver Ford F-150 truck
(license plate 8D94925) was traveling south on Highway 1 somewhere near mile
marker
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88. But
everyone in the world who saw the car would havethat knowledge, and anyone
who wanted the car stopped would have to provide that information. Unlike the situation in White, that
generally available knowledge in no way makes it plausible that the tipster
saw the car run someone off the road.
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The Court
says, ante, at 5, that “[b]y reporting that shehad been run off the
road by a specific vehicle . . . the caller necessarily claimed eyewitness
knowledge.” So what? The issue is not how she claimed to know, but whether
what she claimed to know was true. The
claim to “eyewitness knowledge” of being run off the road supports not at
all its veracity; nor does the amazing, mystifyingprediction (so far
short of what existed in White) that the petitioners’ truck would
be heading south on Highway 1.
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The Court finds “reason to think”
that the informant “was telling the truth” in the fact that police
observation confirmed that the truck had been driving near the spot at
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which,
and at the approximate time at which, the tipsteralleged she had been run off
the road. Ante, at 6. According
to the Court, the statement therefore qualifies as a “‘present sense
impression’” or “‘excited utterance,’” kindsof hearsay that the law deems
categorically admissiblegiven their low likelihood of reflecting “‘deliberate
orconscious misrepresentation.’” Ibid. (quoting Advisory Committee’s
Notes on Fed. Rule Evid. 803(1), 28 U. S. C.App., p. 371). So, the Court says,
we can fairly supposethat the accusation was true.
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No, we
cannot. To begin with, it is
questionable whethereither the “present sense impression” or the “excited utterance”
exception to the hearsay rule applies here. The classic “present sense impression”
is the recounting of anevent that is occurring before the declarant’s eyes,
as the declarant is speaking (“I am watching the Hindenburg explode!”). See 2 K. Broun, McCormick on Evidence 362
(7th ed. 2013) (hereinafter McCormick).
And the classic “excited utterance” is a statement elicited, almost
involuntarily, by the shock of what the declarant is immediatelywitnessing
(“My God, those people will be killed!”).
See id., at 368–369. It is the immediacy that gives the statement
some credibility; the declarant has not had time to dissemble or
embellish. There is no such immediacy
here. The declarant had time to observe the license number of the offending
vehicle, 8D94925 (a difficult task if she was forced off the road and the
vehicle was speeding away), tobring her car to a halt, to copy down the
observed license number (presumably), and (if she was using her own cell
phone) to dial a call to the police from the stopped car.Plenty of time to
dissemble or embellish.
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Moreover, even assuming that less
than true immediacy will suffice for these hearsay exceptions to apply, the
tipster’s statement would run into additional barriers to admissibility and
acceptance. According to the very Advisory
Committee’s Notes from which the Court quotes,
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cases
addressing an unidentified declarant’s present sense impression “indicate
hesitancy in upholding the statement alone as sufficient” proof of the
reported event. 28 U. S. C. App., at
371; see also 7 M. Graham, Handbook of Federal Evidence 19–20 (7th ed. 2012).
For excited utterances as well, the “knotty theoretical” question of
statement-alone admissibility persists—seemingly even when the declarant is
known. 2 McCormick 368. “Some courts . . . have taken the position that an
excited utterance is admissible only if other proof is presented which
supports a finding of fact that the exciting event did occur. The issue has not yetbeen resolved under
the Federal Rules.” Id., at
367–368 (footnote omitted). It is even unsettled whether excited utterances
of an unknown declarant are ever admissible. A leading treatise
reports that “the courts have been reluctant to admit such statements,
principally because ofuncertainty that foundational requirements, including
theimpact of the event on the declarant, have been satisfied.” Id., at
372. In sum, it is unlikely that the
law of evidencewould deem the mystery caller in this case “especially
trustworthy,” ante, at 6.
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Finally, and least tenably, the
Court says that another“indicator of veracity” is the anonymous tipster’s
mere“use of the 911 emergency system,” ante, at 7. Because, you see, recent “technological and
regulatory developments” suggest that the identities of unnamed 911 callers
are increasingly less likely to remain unknown. Ibid. Indeed, the systems are able
to identify “the caller’s geographic location with increasing specificity.” Ibid.
Amici disagree with this, see Brief for National Association of Criminal
Defense Lawyers et al. 8–12, and the present case surely suggests that amici
are right—since we know neither the identity of the tipster nor even the
county fromwhich the call was made. But assuming the Court is rightabout the
ease of identifying 911 callers, it proves absolutely nothing in the present
case unless the anonymous
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caller
was aware of that fact. “It is the tipster’s belief in
anonymity, not its reality, that will control his behavior.” Id.,
at 10 (emphasis added). There is no reason to believe that your average
anonymous 911 tipster is aware that 911 callers are readily identifiable.2
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II All
that has been said up to now assumes that the anonymous caller made, at
least in effect, an accusation of drunken driving. But in fact she did
not. She said that the petitioners’
truck “‘[r]an [me] off the roadway.’”
App. 36a. That neither asserts that the driver was drunk nor even
raises the likelihood that the driver was drunk. The most it conveys is that the truck did
some apparentlynontypical thing that forced the tipster off the
roadway,whether partly or fully, temporarily or permanently. Who really knows what (if anything)
happened? The truck might have swerved
to avoid an animal, a pothole, or a jaywalking pedestrian. But let us assume
the worst of the many possibilities: that it was a careless, reckless, or
even intentional maneuver that forced the tipster off the road. Lorenzo mighthave been distracted by his
use of a hands-free cell phone, see Strayer, Drews, & Crouch, A
Comparison of the Cell Phone Driver and the Drunk Driver, 48 Human Factors
381, 388 (2006), or distracted by an intense sports argument withJosé, see D.
Strayer et al., AAA Foundation for Traffic Safety, Measuring Cognitive
Distraction in the Automobile 28 (June 2013), online at https://www.aaafoundation.org/
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sites/default/files/MeasuringCognitiveDistractions.pdf
as visitedApr. 17, 2014, and available in Clerk of Court’s case file). ——————
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2The Court’s discussion of reliable
911 traceability has so little relevance to the present case that one must
surmise it has been includedmerely to assure officers in the future that
anonymous 911 accusations—even untraced ones—are not as suspect (and hence
as unreliable) as other anonymous accusations. That is unfortunate.
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SCALIA, J.,
dissenting
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Or,
indeed, he might have intentionally forced the tipsteroff the road because of
some personal animus, or hostilityto her “Make Love, Not War” bumper sticker.
I fail to see how reasonable suspicion of a discrete instance of
irregularor hazardous driving generates a reasonable suspicion of ongoing
intoxicated driving. What proportion of the hundreds of
thousands—perhaps millions—of careless, reckless, or intentional traffic
violations committed each day isattributable to drunken drivers? I say 0.1
percent. I have no basis for that
except my own guesswork. But unless
the Court has some basis in reality to believe that theproportion is many
orders of magnitude above that—say 1in 10 or at least 1 in 20—it has no
grounds for its unsupported assertion that the tipster’s report in this case
gave rise to a reasonable suspicion of drunken driving.
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Bear in
mind that that is the only basis for the stop thathas been asserted in this
litigation.3 The stop required suspicion of an ongoing
crime, not merely suspicion of having run someone off the road earlier. And
drivingwhile being a careless or reckless person, unlike drivingwhile being a
drunk person, is not an ongoing crime.
In other words, in order to stop the petitioners the officershere not
only had to assume without basis the accuracy ofthe anonymous accusation but
also had to posit an unlikely reason (drunkenness) for the accused behavior.
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In sum, at the moment the police spotted the truck,
itwas more than merely “possib[le]” that the petitionerswere not
committing an ongoing traffic crime. United
States v. Arvizu, 534 U. S. 266, 277 (2002) (emphasis
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—————— 3The
circumstances that may justify a stop under Terry v. Ohio, 392
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U. S. 1
(1968), to investigate past criminal activity are far from clear, see United
States v. Hensley, 469 U. S. 221, 229 (1985), and have notbeen
discussed in this litigation. Hence,
the Court says it “need notaddress” that question. Ante, at 8, n. 2. I need not either. This case has been
litigated on the assumption that only suspicion of ongoing intoxicated or
reckless driving could have supported this stop.
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SCALIA, J.,
dissenting
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added). It
was overwhelmingly likely that they were not.
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III It gets worse. Not only, it turns out, did the police have
no good reason at first to believe that Lorenzo was driving drunk,
they had very good reason at last to know that he was not. The Court
concludes that the tip, plus confirmation of the truck’s location, produced
reasonable suspicionthat the truck not only had been but still was
barrelingdangerously and drunkenly down Highway 1. Ante, at 8–
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10. In
fact, alas, it was not, and the officers knew it. Theyfollowed the truck for five minutes,
presumably to see if itwas being operated recklessly. And that was good police work. While the anonymous tip was not enough to
support a stop for drunken driving under Terry v. Ohio, 392
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U. S. 1 (1968), it was surely
enough to counsel observation of the truck to see if it was driven by a
drunken driver. But the pesky little detail left out of the Court’s reason-
able-suspicion equation is that, for the five minutes that the truck was
being followed (five minutes is a long time),Lorenzo’s driving was
irreproachable. Had the officers
witnessed the petitioners violate a single traffic law, they would have had
cause to stop the truck, Whren v. United States, 517 U. S. 806,
810 (1996), and this case would notbe before us. And not only was the driving irreproachable,
but the State offers no evidence to suggest that the petitioners even did
anything suspicious, such as suddenly slowing down, pulling off to the
side of the road, or turning somewhere to see whether they were being
followed. Cf. Arvizu, supra,
at 270–271, 277 (concluding that an officer’ssuspicion of criminality was
enhanced when the driver, upon seeing that he was being followed, “slowed
dramatically,” “appeared stiff,” and “seemed to be trying to pretend” that
the patrol car was not there).
Consequently,the tip’s suggestion of ongoing drunken driving (if it
could be deemed to suggest that) not only went uncorroborated;
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it
was affirmatively undermined.
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A
hypothetical variation on the facts of this case illustrates the point. Suppose an anonymous tipster reportsthat,
while following near mile marker 88 a silver Ford F-150, license plate
8D949925, traveling southbound on Highway 1, she saw in the truck’s open cab
several fivefoot-tall stacks of what was unmistakably baled cannabis. Two
minutes later, a highway patrolman spots the truckexactly where the tip
suggested it would be, begins following it, but sees nothing in the truck’s
cab. It is not enoughto say that the officer’s observation merely failed to
corroborate the tipster’s accusation.
It is more precise to saythat the officer’s observation discredited
the informant’s accusation: The crime was supposedly occurring (andwould
continue to occur) in plain view, but the police saw nothing. Similarly,
here, the crime supposedly suggestedby the tip was ongoing intoxicated
driving, the hallmarksof which are many, readily identifiable, and difficult
toconceal. That the officers witnessed nary a minor traffic violation nor any
other “sound indici[um] of drunk driving,” ante, at 8, strongly
suggests that the suspected crime was not occurring after all. The tip’s implication of continuing
criminality, already weak, grew even weaker.
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Resisting this line of reasoning,
the Court curiouslyasserts that, since drunk drivers who see marked squad
cars in their rearview mirrors may evade detection simply by driving “more
careful[ly],” the “absence of additional suspicious conduct” is “hardly
surprising” and thus largelyirrelevant. Ante, at 10. Whether a drunk
driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence
of alcohol. I subscribe to the more
traditional view that the dangers of intoxi- cated driving are the
intoxicant’s impairing effects on thebody—effects that no mere act of the
will can resist. See, e.g., A. Dasgupta, The Science of Drinking: How
Alcohol Affects Your Body and Mind 39 (explaining that the physi
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ological
effect of a blood alcohol content between 0.08 and 0.109, for example, is
“sever[e] impair[ment]” of “[b]alance,speech, hearing, and reaction time,” as
well as one’s general “ability to drive a motor vehicle”). Consistent with this view, I take it as a
fundamental premise of our intoxicated-driving laws that a driver soused
enough to swerveonce can be expected to swerve again—and soon. If he does not, and if the only evidence of
his first episode of irregular driving is a mere inference from an uncorroborated,
vague, and nameless tip, then the Fourth Amendment requires that he be left
alone.
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* * * The Court’s opinion serves up
a freedom-destroying cocktail consisting of two parts patent falsity: (1)
thatanonymous 911 reports of traffic violations are reliable so long as they
correctly identify a car and its location, and
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(2) that a
single instance of careless or reckless drivingnecessarily 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 hisword is as good as his victim’s.
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Drunken
driving is a serious matter, but so is the loss ofour freedom to come and go
as we please without police interference. To prevent and detect murder we do
notallow 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
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Cite as: 572 U. S. ____ (2014) SCALIA, J., dissenting single instance of careless driving. I respectfully dissent.
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