By Logan Dwyer, ACLR Featured Blogger
Can the police, on the basis of an anonymous tip containing a description of your car alleging that you were driving recklessly, pull you over to investigate? This question, posed to the Supreme Court in Navarette v. California[i] is an important one practically. Navarette, however, will also be a test of how strictly the Court will adhere to the decade-old Florida v. J.L.,[ii] in which it found a Terry[iii] stop based on an anonymous tip of illegal firearm possession unconstitutional without more corroborating evidence. The Court should recognize that interpretations of J.L. in the lower courts do not sufficiently protect against police searches instigated by malicious or sparse tips and find for the petitioners in Navarette.
In J.L., police received an anonymous tip about a young black male in plaid, standing at a bus stop, illegally in possession of a firearm.[iv] Police were dispatched to the bus stop mentioned in the tip and, upon finding J.L. wearing plaid, performed a Terry stop-and-frisk upon him.[v] In a unanimous decision, the Court found that the stop was unsupported by reasonable suspicion.[vi] Writing for the Court, Justice Ginsberg noted that anonymous tips often do not include the tipster’s basis of knowledge, making it hard to determine if the illegal conduct was observed personally, heard secondhand, or fabricated out of spite.[vii] To give rise to reasonable suspicion, anonymous tips must include information beyond “a subject’s readily observable location and appearance.”[viii] Ideally the tip would include predictions about a suspect’s behavior that can later be corroborated by police investigation.[ix] Justice Kennedy’s concurrence, joined by Chief Justice Rehnquist, agreed with the substance of the Court’s analysis while presenting a number of hypothetical situations that could also increase the reliability of an anonymous tip.[x]
Having failed to convince the Court that the anonymous tip in J.L. gave rise to reasonable suspicion, the State of Florida proposed an exception from the reliability analysis for tips about illegal firearms.[xi] Florida argued that the unauthorized possession of firearms posed such a severe danger that Terry stop-and-frisks for firearms should be permitted with a lower level of suspicion.[xii] While the Court acknowledged the danger posed by firearms, it found the threat of harassment by malicious tipsters too great to allow an exception.[xiii]The Court also implied that because illegal firearms are often found in the presence of drugs, an exception for tips about firearms could easily be extended to tips about drug possession and thus the exception could “swallow the rule.”[xiv] Still, the Court did not foreclose the possibility of a loosened reliability requirement for reports of more dangerous conduct, such as “carrying a bomb.”[xv]
Since J.L. was decided, some courts have read the opinion to authorize the creation of an exigency exception to the usual reliability analysis for tips under the Fourth Amendment, even where “exigency” is reckless driving. Fourteen state supreme courts and two federal Courts of Appeals have weighed in on whether the exception applies in the context of drunken or reckless driving. The Eighth and Seventh Circuits, along with nine state supreme courts, have found that the risk of harm posed by a reckless or drunken driver justifies the application of an exigency exception. The exception would use a more lenient reliability standard to govern anonymous tips reporting dangerous driving.
In Navarette, the Court will likely evaluate the Eighth Circuit’s test, set out in United States v. Wheat,[xvi]and adopted by California in People v. Wells.[xvii] Under this test, reasonable suspicion is established when an anonymous tipster (i) gives information sufficient to identify the car and (ii) indicates he or she witnessed a recent traffic violation, provided that (iii) the police corroborate the “innocent details” of the tip before stopping the car.[xviii] The argument will likely turn on the test’s second prong: whether a tip is sufficiently reliable because the tipster claims to have witnessed a traffic violation.
The Supreme Court should reject this attempt to create a formal reckless driving exception to the general criteria for anonymous tips for two reasons. First, rigid categorization of the type adopted by California in Wellshas been disfavored ever since the Court simplified the Fourth Amendment tip doctrine in Illinois v. Gates.[xix]After Gates, the correct analysis for determining when anonymous tips create reasonable suspicion or probable cause is a consideration of the totality of the circumstances.[xx] Not inviting the creation of a formalized exigency exception to its holding, the Court in J.L. was merely recognizing that under some circumstances it may be necessary, based on the danger of the alleged illegal conduct, to relax the reliability standards for anonymous tips.[xxi] a special category of tips that are treated differently ex ante undercuts the flexibility of a totality-of-the-circumstances approach. It would be more effective—and actually adhere to current Fourth Amendment jurisprudence—to evaluate reckless driving tips no differently than any others.
Second, even if there is going to be a formal exigency exception to J.L., the Wheat test misses the mark. As the facts of Navarette demonstrate, the Wheat test is effectively a per se exception for anonymous tips involving the mere assertion of reckless driving. Dispatchers received an anonymous tip with the color and make of petitioners’ car as well as their license plate.[xxii] The tipster also claimed he or she was run off the road by the car in question.[xxiii] The tip in Navarette therefore boils down to innocent identifying information available to any observer and an unsupported allegation of reckless driving. While Wheat’s checklist may seem reassuring, the simple allegation “I saw him driving recklessly” is enough to pass the second prong, demonstrating that the checklist does very little to allay the concerns about falsified tips expressed by the Court in J.L.
If a reckless driver was as dangerous as a bomber, the Court’s example in J.L., This exception might be justified. But a certain malicious or destructive intent can be fairly inferred from the act of possessing a bomb (since bombs are purely offensive weapons not used for self-defense), whereas a reckless driver may not intend to injure anyone. Assuming that intending to harm others increases the chances of actually doing so, this difference indicates that reckless drivers are less dangerous than bombers. Moreover, the destructive potential of a bomb strikes one as, on average, higher than that of a car crash.
Finally, because the second prong in Wheat requires only a report of an “actual . . . contemporaneous traffic violation” it is unclear if the test is properly targeted at the most dangerous drivers since, on its face, it appears a report of a broken headlight could pass.[xxiv]
In Navarette, the Court has an opportunity to reaffirm its commitment to a reasonable approach to tip analysis under the Fourth Amendment. Instead of creating a special exempted class of tips, which would invariably lead to the creation of other exemptions, the Court should stand by its totality of the circumstances test and the solid reasoning of J.L. It may very well be that the tip in Navarette, even though it was anonymous and consisted primarily of innocent and commonly observable information, did in fact give rise to reasonable suspicion. The Court’s Fourth Amendment anonymous tip jurisprudence requires an analysis that considers all the relevant surrounding factors, not one that pigeonholes the unique facts of each case into the checklist created in Wheat.