The United States Supreme Court’s decision in Navarette v. California, decided today, diminishes Fourth Amendment protections of everyone on the road by allowing police to make stops based on uncorroborated 911 tips alleging erratic driving. While the goal of prosecuting drunk driving is worthy, it does not justify setting aside Constitution protections.

How do 911 Calls typically arise in an DUI case?

Anonymous 911 calls are extremely common in DUI cases and this decision provides for greater leeway among officer to make stops based on anonymous tips.

In many DUI arrests based on 911 calls, the tips are not anonymous:

• Sometimes the dispatcher gets the name

• Often the person is still near the alleged drunk driver with hazards flashing to alert the police officer.Many times the officer will witness a traffic violation when following the motorist, providing an independent basis for the stop.

  The Navarette case was unique in that the caller left no identifying information but simply stated that they were almost run off of the road. The lack of any detail was striking;

  Under prior case law of the United States Supreme Court, an anonymous tip must show a degree of reliability. The Court essentially found the call reliable based on circular reasoning, that the because the driver claimed to be run off the road the driver must know that the other car was driving dangerous. It seemed the Court relied most heavily in its reasoning on the fact that 911 call are recorded and that the fact of recording creates a safeguard against false reports. The Court’s reasoning in the case is particularly sparse. The Court could not articulate a reason why the Navarette case demanded a different result than Florida v. J.L., 529 U.S. 266 (2000) where the court found the tip insufficient.

  Dissent of Justice Scalia captured the flaw in the reasoning of the majority

  Justice Scalia dissented from the Court’s decision finding that Navarette was far different from the Court’s decision in Alabama v. White, 496 U.S. 325 (1990) finding an anonymous tip reliable because in White, the tipster predicted activity that only someone with first hand knowledge would know; in Navarette, the court found that because the tipster was in the area, that the call must be reliable.

  Further, Justice Scalia argued that recording 911 calls adds nothing to proving the reliability of the caller unless the tipster knows the calls are recorded. Justice Scalia also stressed that the officer needed suspicion of an ongoing crime, not merely of having run someone off of the road earlier. The only potential ongoing crime was drunk driving which Scalia stressed the tip did not provide any evidence of and the court was assuming that the operator was driving drunk.

  Scalia points out that the officers observed the motorist for five minutes and did not see any traffic infractions, resulting in the officers failing to corroborate any belief that the driver was drunk. To Read the full decision of the Navarette opinion you may click here on this link from the United States Supreme Court website.

  As an DUI Lawyer in Massachusetts, there are a few ways this case may be dealt with in future cases:

  1. The majority did acknowledge it being a close case, resulting in the ability of an attorney to distinguish a future cases from this case.
  2. Under the Massachusetts State Constitution, Article 14 has been interpreted to provide greater protections than the Fourth Amendment. A Massachusetts Court interpreting out State Constitution would not have to follow the Navarette decision.
  3. Further, under Article 14 officers are not permitted an automatic exit order; accordingly a stop based on a tip of questionable reliability, even if permitted would not given an officer much leeway to prolong the scope and duration of an investigatory stop.