Patterico's Pontifications

4/22/2014

A Question From Today’s Fourth Amendment Supreme Court Opinion

Filed under: General — Patterico @ 6:52 pm

Here is an odd passage in Justice Scalia’s dissent today from the opinion (.pdf) allowing a stop based on a (functionally) anonymous call saying a specific vehicle had run the caller off the road. The issue was whether this (functionally) anonymous call provided reasonable cause for the stop. Here is what Justice Scalia says:

The tipster said the truck had “[run her] off the road­ way,” id., at 36a, but the police had no reason to credit that charge and many reasons to doubt it, beginning with the 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 especially suspicious with respect to the call that is the subject of the present case. When does a victim complain to the police about 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?

Hmmmmmm. Verrrry suspicious. Verrry verrrry suspicious.

Oh: and also, untrue. From Justice Thomas’s opinion:

At the suppression hearing, counsel for petitioners did not dispute that 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 courts followed suit. See 2012 WL 4842651, *6 (Cal. Ct. App., Oct. 12, 2012).

You can “treat” it as anonymous, I suppose, but it wasn’t. Therefore, to argue that the tip is suspicious because the caller oddly refused to give her name seems like a bad argument when . . . the caller did give her name.

How did Scalia miss this? It fairly screams out at the reader.

I realize they are setting rules for other cases, and the holding applies to actually anonymous calls — but that does not justify treating this call as suspicious for the caller’s failure to do something that the caller actually did. Just explain it and explain the rule.

P.S. The rest of Scalia’s opinion is pretty well written.

78 Responses to “A Question From Today’s Fourth Amendment Supreme Court Opinion”

  1. Ding.

    Patterico (9c670f)

  2. i do not trust me no popo

    happyfeet (8ce051)

  3. plus I’m super far behind on tvd

    happyfeet (8ce051)

  4. OK, question: if I see a driver who is obviously intoxicated or who is so distracted by texting while driving, must I identify myself to report it?

    The Dana who isn't an attorney (af9ec3)

  5. No.

    nk (dbc370)

  6. For the time being, the police cannot just walk into your home and look around to see if you or your guests are committing a crime, but that’s about all the Fourth Amendment that’s left, and who knows how long it’ll be before that runs out. Just pretend you’re living in 1929 in all your affairs — taking care to keep your secrets really secret, don’t walk out on the street or get in your car with anyhting you can’t ditch real quick, use flashpaper to write things on, etc., and hope to stay out of the radar.

    nk (dbc370)

  7. the twilight of freedom is nigh

    and it’s no bueno

    happyfeet (8ce051)

  8. Perhaps not. But I imagine it would be very embarrassing to have to go through a field sobriety check in front of your own house based upon an anonymous, and false, report.

    http://capoliticalnews.com/2012/10/28/police-union-intimidates-california-city-council/

    Of course, that’s the whole point of intimidation when you work for a police union (not the people who pay your salaries) in Kali where the asylum is run for the benefit for the keepers. And some of the people on that durn city council just didn’t get the memo.

    Steve57 (013200)

  9. The exclusionary rule was thought up by judges who thought judges were better than cops in respecting constitutional rights but then judges came along to prove them wrong.

    nk (dbc370)

  10. It’s an insane system in general.

    http://grandstranddaily.com/bravo-sc-supreme-court-justice-donald-beatty/

    I have no idea if this guy’s from the UK or if they call their prosecutors “solicitors” in SC. But to be clear in case it’s not from the circumstances, the justice was talking about prosecutorial misconduct.

    S.C. Supreme Court Justice Donald Beatty told solicitors to obey the law and now those solicitors, with Attorney General Alan Wilson’s support, want him to recuse himself from criminal cases and cases involving lawyer misconduct.

    According to a September 2013 speech Beatty gave to a solicitors’ conference in Myrtle Beach, he said, “The court will no longer overlook unethical conduct, such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. You better follow the rules or we are coming after you and will make an example.”

    Reportedly, Wilson cited case law in a letter to 13 solicitors around the state that he said he would use to support an argument for recusal.

    Only in South Carolina could the AG cite case law that supports the recusal of a judge who calls for an end to unethical conduct of attorneys and warns them to obey the law.

    Unfortunately, no. Not only in SC. I know of instances whn prosecutors have called for judges to recuse themselves because they’ve thrown out too much evidence in past cases because it was collected in violation of the 4th Amendment.

    Not that the judge was wrong. He or she just had a little bit too much respect for the Constitution, too manay times. Which indicates “pro-defense bias.”

    You know, just like the Bill of Rights.

    Steve57 (013200)

  11. Scalia must have been thinking about the way that universities handle “sexual assault” claims these days. The accuser is very much shielded.

    Skeptical Voter (12e67d)

  12. Lawyers are scum. Sorry. Just a fact.

    They make it up as they go along to make themselves into gods.

    Then they use the crap they made up to stick it to you.

    This is how something like one sentence in a huge document citing “General Welfare” becomes a stepping stone to confiscate other people’s property to solve different people’s problems and enlarge Gov’t to levithian levels.

    If the Common Man can’t read it then I don’t trust the lawyers to interpret it.

    Rodney King's Spirit (ca9e04)

  13. I don’t think Scalia was wrong at all. If the prosecutor in the original trial treated the tip as anonymous and the taped call or witness never came into evidence, how can it be part of the record on appeal?

    Judges should rule on the evidence and law before them, not what they “know” from outside sources.

    And it is a slippery slope. There’s nothing wrong with anonymous tips, but they should never be sufficient for probable cause to stop or search on their own. Here the police witnessed no signs the tip was accurate, but pulled the driver over anyway. It should all be thrown out.

    ►◊◄

    On a lighter note, an attorney of my acquaintance had a witness for his client, accused of a drug crime. In Virginia at the time (40 years ago), it was common for prosecutors to ask defense witnesses this question, which was asked of the young man in this case: “Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?”

    The witness answered in a loud, clear, voice: “I have never been convicted of a felony, and my turpitude has never been doubted!” Even the judge needed a minute to compose himself.

    The same attorney got another drug client off on a probable cause issue. When the judge ruled, the client asked the lawyer, “When do I get my pot back?”

    Estragon (ada867)

  14. Estragon, that’s that’s how I read it. Also because of this.

    …without giving his identity, so that he can accuse and testify when the culprit is caught?

    The tipster may have given her name to the 911 operator. But not for the purpose of accusing and testifying against the suspect. So given how the prosecutors and lower courts treated the tip, and because of the above, I don’t think it’s too strange that Scalia treated it as if the tipster never gave her name at all.

    Steve57 (013200)

  15. No. The cop who conducted the search knew the tip was not anonymous. The tip in fact was not anonymously. On that part of the issue, anonymous tip, there was subjective good faith reasonabless and objective reasonabless. I don’t agree with the decision, but Thomas cut through the abstract BS hair-splitting that Scalia likes and got to what’s real.

    nk (dbc370)

  16. Anonymity is especially suspicious with respect to the call that is the subject of the present case.

    I guess to clarify, the way I read it Scalia never accused the tipster of never revealing her name to somebody at some point. But the tipster was able to maintain her anonymity with “respect to the call that is the subject of the present case.” If the prosecutor and the lower courts kept her name out of it.

    Steve57 (013200)

  17. Just so you know, the above link goes to the affirmative action case.

    SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN) ET AL.

    Steve57 (013200)

  18. I don’t think that is what Scalia is saying. He is not saying that there was no actual identification in this particular case; he is making the point that treating anonymous evidence in general – but especially in cases like this – as self-corroborating is an error because anonymity in such a case that doesn’t involve obvious witness intimidation risks would be strange and thus inherently suspicious.

    Handle (11a8b8)

  19. nk, so? Why should it matter that the cop says he knew the tip was not anonymous?

    How could anyone know that is good faith objective reasonableness? There was no evidence introduced in trial that his assertion was in fact true.

    Steve57 (013200)

  20. My analysis, which is why the Supremes’ (both sides) sucks. The anonymity is a red herring, at best a minor point. Giving your name does necessarily mean that you’re not a nutcase, malicious girlfriend looking to make trouble, or just a dipstick. The tip has pretty much the same weight in my mind with or without a name attached to it. The meat is that the cops, “professional, trained, obervers”, followed the truck for five minutes and saw nothing wrong. That should have been the end of the matter if what they were looking for was an erratic, possibly drunk, driver. Instead they disregarded their much-vaunted trained senses and went on ahead with only the tip really to go on. Does anyone join my dissent?

    nk (dbc370)

  21. does *not” necessarily mean

    nk (dbc370)

  22. See how a simple “not” turns a concurrence into a dissent.

    But, like I implied before, don’t expect to see any decent Fourth Amendment opinions from the Bush or Reagan appointees in cases involving street crimes. If you’ve got a case involving insider trading by Goldman Sachs or the Koch brothers, then maybe, but it would be resolved way before it got to the Supreme Court anyway.

    nk (dbc370)

  23. How (or why) does the fact that this event, precipitated by a report from a citizen who gave their name, but is prosecuted as an event involving an anonymous tip, not bring some grief to the prosecutor who based the prosecution on a lie?

    Not that I expected anything like that, I just wonder if there is a legal foundation for what looks to the uninitiated to be wrong.

    Gramps, the original (3bbad3)

  24. nk, I think I’ve been agreeing with your dissent all along.

    I asked how the fact that the officer knew the tip was not anonymous could establish good faith objective reasonableness without anyone else knowing whether or not it was even true.

    By the same token the ruling keeps saying things like:

    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 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.

    And:

    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.

    None of the above is even reasonable. Is there any proof that anyone was actually run off the road? She may not have been a vindictive girlfriend. Maybe he was tailgating her. Maybe she was tailgating him. But how does a call stating “this guy in this truck ran me off the road” establish anything. What technological or regulatory features of the 911 system would prevent anyone from using it to report a crime for which there is no physical evidence?

    It seems that if I wanted to get back at someone for ticking me off on the road, all I have to do is say they ran me off the road. “That guy didn’t even look” I tell the dispatcher. And when the other driver says he didn’t see me is that proof he didn’t look? Or that I wasn’t where I said I was at all?

    The court reasoned that the content of the tip indicated that itcame from an eyewitness victim of reckless driving,

    Yes, because if the two cars don’t make contact all you have is “eyewitness testimony.” Also called “my word against yours.”

    How does that make it reasonable to pull someone over for an unverifiable offense that the officer didn’t witness?

    I join you and Scalia in the dissent.

    Steve57 (013200)

  25. This just strikes me as an awful decision. Horrible.

    JD (5c1832)

  26. Every time I read “[t]he court reasoned that the content of the tip indicated that it came from an eyewitness victim of reckless driving” all I can think is, no, the content of the tip indicated it came from someone who knows what reckless driving looks like.

    And now we know what level of completely unverifiable reckless driving that can get you pulled over. Or do we?

    I may have missed it. Does this guy have priors? Because if he did and he’s used that truck before then the cops just used this BS tip to pull him over and search his truck.

    As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana.

    Riiight. Anyone believe this? Because unless these guys loaded the truck with loose bails of pot, pot that isn’t burning and is wrapped in several layers of plastic is pretty hard to smell. If it’s so easy to smell, then we don’t need drug sniffing dogs, do we? Apparently the CHP can train it’s officers to lock onto point as they approach the vehicle.

    This is right up there with the gun always being in plain sight on the floor of the car, the baggie of narcotics just fell out of the suspects pocket and landed on the cops shoe. the…

    Steve57 (013200)

  27. JD, you’re right. It is horrible.

    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.

    Have you ever been run off the road? Like when an 18 wheeler changes lanes and really doesn’t look? I’ve never had time to get the plate. Been a little busy. The details make this report more suspicious, not less. I could be wrong, but that’s why it’s important to be able to confront your accusers.

    I honestly don’t see how a claim of being run off the road establishes that the tipster was run off the road, let alone how that claim establishes “indicia of reliability” that she witnessed reckless driving.

    We’ve all witnessed reckless driving. It’s no problem for me at all describe what I’ve witnessed. But it doesn’t mean it’s in any way connected to the vehicle the witness is describing to the 911 operator the day she/he decides to be vindictive about something.

    Steve57 (013200)

  28. Although nk, is right. In lots of ways the anonymity is a red herring. That’s not the real offense the court committed today.

    The court cites all sorts of precedents to illustrate when it’s reasonable to act on a tip, but each one of those precedents concerns a case where physical evidence of illegal activity will be found if the tipster is telling the truth; illegal gambling, drugs in the car, carrying a gun.

    They relied on those precedents to rule the cops can act on a tip and detain someone when, even if true, no physical evidence of the crime alleged can possibly be found. You can’t pull someone over and find “evidence” of running someone off the road or even reckless driving.

    Steve57 (013200)

  29. I hadn’t read Scalia’s entire dissent until just now. That guy’s good. He just rips apart this decision, which makes a hash of logic.

    Steve57 (013200)

  30. Appelate Courts base their opinons on he record, and not on the facts, on the grounds that tey are not empowered to take evidence, and tghey are deciding the law, and not the facts..

    Maybe Justice Thomas doesn’t want to tolerate thios kind of wrongmindedness.

    Sammy Finkelman (0e1021)

  31. How could anyone have faith in a group of educated know it alls?
    Roberts you still suck.

    mg (31009b)

  32. Roberts does suck, but I honestly thought Thomas was better than this.

    I do not see how how Scalia’s dissent was not the majority opinion.

    …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
    88. But everyone in the world who saw the car would have that 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.
    The Court says, ante, at 5, that “[b]y reporting that she had 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, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.

    …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 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…

    The whole thing is great, as per usual. But besides being great Scalia’s dissent is the only opinion written by the SCOTUS in this case that is even lucid.

    Steve57 (013200)

  33. It helps, in each and every one of our dealings with the Courts including reading their decisions, to keep this in mind: The Courts are the third branch of government. Their first and foremost concern is the collection of next year’s taxes. Their function is to keep gunfights off te streets and to have them fought out in the courtrooms. Protecting our constitutional rights is mostly a legal fiction that they peddle to us in order to keep us paying their salaries, benefits and pensions. They don’t work for us. They work for the government. They are not controlled by us. They are controlled by the same political and financial power centers which control the Congresscritters and the executive branch. If we remember that then, when we read a decision like this, we will not be uspset. We’ll just nod fatalistically.

    nk (dbc370)

  34. True, nk. I know it’s widely supposed that Marburry v. Madison established the principle of judicial supremacy. It did not. It established the principle of Constitutional supremacy.

    If we are supposed to have a system of checks and balances spread among three separate but co-equal branches, no single branch of government “gets to decide” (I always hated it when Bush said that) what the Constitution means. As I recall Chief Justice Marshall put great store in the fact that he had sworn an oath to the Constitution. Well, lots of us did.

    Just as the court can’t be bound by an unconstitutional statue, no other branch can be bound by an unconstitutional court decision. As Lincoln said during his inaugural address, that’s when we cease being a self-governing nation.

    Unfortunately. That’s where we are. The swing vote, Justice Kennedy usually, decides what the Constitution means. And we accept that?

    Steve57 (013200)

  35. statue = statute

    Steve57 (013200)

  36. Kudos to Justice Thomas for digging deeper and not jumping to conclusions without some confirmation that what was reported as anonymous, being a key point, really was anonymous.

    If Scalia was using this to set the rules for other cases, he could and would have stated as such. No, this is an error.

    Amphipolis (d3e04f)

  37. Speaking of statues, there is a statue of Anonymous in Budapest.

    Amphipolis (d3e04f)

  38. Estragon and Steve57, that’s also how I read it: since the Supreme Court is an Appellate Court, it’s supposed to operate off of the factual record established at the trial court, and since no evidence of identification was introduced at the trial level, the appeals courts are supposed to treat the situation as though it were identification-free.

    aphrael (db1491)

  39. Steve57 – this sort of criminal procedure case is one of the areas Justices Thomas and Scalia most frequently differ, with Thomas regularly being more sympathetic to the police position than Scalia is.

    aphrael (db1491)

  40. Earlier this morning, I was following behind a white Infiniti FX35, plate # WTF1234. I could have called 911, reported them driving erratically, running myself and others off the road, and even providing my name. That would in no way give any indicia of veracity towards the claims being made.

    This whole decision stinks.

    JD (44af78)

  41. I am starting to see the positive side of the “snitches get stitches” ethos.

    nk (dbc370)

  42. you can say there’s no such thing as santa but as for me and grandma we believe

    happyfeet (8ce051)

  43. Before he submitted his dissent for publication, did Scalia have access to Thomas’ opinion? If so, Scalia has some explaining to do.

    ropelight (e44ba0)

  44. The lower court decision was made based on the call being anonymous.Scalia based his comments on that fact. His decision had to comply with the facts as presented in the case. Even if he knew that the caller had been identified it would not have had any significance.

    lou (c9a355)

  45. So all the false 911 calls or anonymous hoax calls that initiate cops storming over to the home of an innocent owner, as what Patterico has been subject to in the past, now will occur with more nonchalance and ease? Such cases would seemingly make for a more compelling argument about why anonymous tips can open up a proverbial can of worms. But when Scalia (who I respect) and Thomas (who I also respect) both differ with each other on a particular judicial matter, I’m guessing that means there’s a great likelihood that a big gray area is creating a dilemma of “on one hand, but on the other hand.”

    Mark (59e5be)

  46. The link at the top of the post is to SCHUETTE v. BAMN, the Michigan referendum affirmative action case that’s making all the headlines, where plaintiffs attempted to extend a bad Supreme Court decision overturning referendums on grounds of motive, and not the cse this post is about.

    Sammy Finkelman (0e1021)

  47. The front page New York Post story is about what here at Patterico is called a SWATting. (A loser in a video game SWATting the boy who won)

    The word SWAT or SWATting does not appear in the printed paper, but it is in the online headline and an online caption:

    http://nypost.com/2014/04/22/call-of-duty-loser-calls-in-swat-team-hoax-on-kid-who-beat-him/

    Sammy Finkelman (0e1021)

  48. The printed fronmt page headline goes:

    White text overlays a picture of a car, predsumabably a polive car in front of a house, and some almost a dozen police.

    The biggest headline goes: VIDIOT!

    Below, two lines:

    Gamer kid’s prank
    spurs crisis response

    There an inset picture of a tattoed man wearing camouflage with a serious looking gun in the woods and a box in whte with black lettering that says:

    Cops on Long Island
    went into full battle mode
    on Tuesday, swarming a
    home with guns drawn as
    helicopters buzed over-
    head, after getting a call
    from a teen saying he had
    just killed his mom. But it
    was all a sick revenge
    hoax by an “evil little kid”
    who lost a game of “Call
    of Duty” (inset above) to
    the boy who lives there.

    Below is a amall red rectangle with the words: Page 5.

    On page 5:

    GALL OF DUTY

    (in white lettering on a picture.

    Headline is:

    Cops swarm home
    after vid-game hoax

    A picture of 3 policemen maybe arrying things out:

    PRANKED: Cops on Tuesday remove gear from the Long Island home of Rafael Catillo (right) 17, whose sore-loser gaming foe, posing as the tten, called police claiming, “I just killed my mother.”

    Sammy Finkelman (0e1021)

  49. #44, lou, if your comment is in response to my #43, then thanks, but my concern is that if Scalia knew the caller was actually identified, although considered anonymous in trial court, he should have noted that salient fact and explained why it was omitted from his dissent.

    ropelight (e44ba0)

  50. 49. Somebody probably learns all about that in law school.

    Sammy Finkelman (0e1021)

  51. If a case goes up on a bad record, the right thing is to send it back to correct the record. And there are other reasons why this sounds like “certiorari improvidently granted”.

    nk (dbc370)

  52. Here’s the link to the correct case.

    PRADO NAVARETTE ET AL. v. CALIFORNIA

    Steve57 (013200)

  53. ropelight, it isn’t a salient fact. The issue isn’t the identity of the caller or even if the caller gave somebody at some point their identity. The issue is whether or not the police had reasonable suspicion to stop the vehicle based upon the content and reliability of the information the tipster provided the police. Even if the police dispatcher or the cop who pulled the vehicle over knew the name of this complete stranger, it would have no bearing upon the elements of the case that are at issue.

    The identity of the caller never entered into evidence at the trial level. It doesn’t become a salient point at the appellate level.

    it’s clear to me, having read Scalia’s dissent that he had read majority opinion. Which is why he so thoroughly eviscerates it as the big nothingburger as it is. For instance, he mocks where they set the bar for “indicia of reliability,” in which the court basically dug a ditch to lower the bar into to claim it had been met.

    Here the Court makes a big deal of the fact 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 88. But everyone in the world who saw the car would have that 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.

    The Court says, ante, at 5, that “[b]y reporting that she had 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, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.

    So he clearly he was perfectly aware of Scalia’s footnote. And clearly he considered it, like so much else in this case, completely irrelevant. Why don’t you tell us why you think it’s relevant? After all, if it’s a salient fact yet so far the courts have let it proceed through the trial and appellate levels as if it weren’t, it seems to me that’s significant error that would demand a retrial. And everyone seems to have missed that.

    Steve57 (013200)

  54. 10 minutes till UEFA Champions League Soccer, Real Madrid vs Bayern Munich on FOX SPORTS in HD.

    ropelight (e44ba0)

  55. Let’s change the facts somewhat: After following the car for 5 miles/minutes and seeing no moving violation, the officer gets off at the next exit and 5 miles/minutes later the driver causes an accident killing/injuring other people. The driver who complained sees it on the news and says ‘that’s the car I called the cops about and they could have prevented the accident had they stopped him!’ and calls the lawyer who represents the injured. The driver is barely insured and the deep pocket is the local/state police department. Want to bet there’s at least one court in this country that would find a duty for the police to stop and investigate the vehicle on the way tofinding civil liability on the officer/department?

    rfy (4cbefe)

  56. rfy, how does that differ from every other driver the cops follow which doesn’t give them any cause for a stop, who later causes an accident? Should the just start pulling everyone over “just in case?”

    Steve57 (013200)

  57. Ok, rfy, I’ll play though. They pull the guy over. He’s not intoxicated. As the driver in this case was not intoxicated. They witnessed the driver doing nothing wrong. So they let him go. And the cops pull off the highway.

    Five minutes later he causes an accident killing or injuring several people. Now we return to your scenario.

    The driver who complained sees it on the news and says ‘that’s the car I called the cops about and they could have prevented the accident had they stopped him!’ and calls the lawyer who represents the injured. The driver is barely insured and the deep pocket is the local/state police department.

    So, how does pulling a guy over who isn’t intoxicated and is insured, even though just barely, prevent an accident?

    Should we just start pulling people’s licenses based upon 911 tips?

    Steve57 (013200)

  58. 55. …Want to bet there’s at least one court in this country that would find a duty for the police to stop and investigate the vehicle on the way tofinding civil liability on the officer/department?

    Comment by rfy (4cbefe) — 4/23/2014 @ 2:25 pm

    I am curious, how do you stop and investigate a vehicle for evidence of reckless driving. Because that’s all the lady reported.

    What sort of physical evidence would one expect to find?

    “Excuse me, sir, we someone called 911 and said you ran through a stop sign. I need to search your vehicle to see if I can find any evidence that can verify that information.”

    Steve57 (013200)

  59. Justice Thomas’s opinion:

    Even assuming for present purposes that the 911 call was anonymous, see n. 1, supra.

    which says:

    1 At 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).

    Justice Thomas treats it as anonymous, because that makes his position harder, and because the case in point was treated that way earlier.

    You could argue in this kind of case, if you know who it is, you have a complaint – a certain truck tried to run a person off the road, but if not,
    it is something different. Now the policy in such a casse has to be either to ignore that report, or not (or possibly look for signs this might true.)

    You might think that if it truly was anonymous, there would be nothing a highway patrolman could or should do. Justice Thomas says that no, there would be a reason to investigate. The caller was reporting dangerous driving, which might be repeated, and might be an indication the driver was intoxicated. We can add tired or the having driving troouble (the last two might not be illegal, but it might be worth stopping the driver and cautioning him or offering help)

    They also might want to ask the driver’s version for his version of the incident, if it happened.

    About smelling marijuana: that wouldn’t be the packaged marijuana, but other marijuana the driver or companion had recently smoked.

    This rests on: stopping the driver because of a reported dangerous incident, possibly malicious, and then, once they got close, smelling marijuana.

    —————

    Justice Scalia’s opinion limits the importance of this case. Because Justice Thomas had said this stop would be valid even if the tip had been anonymous, he argues that this opinion does not depart from the general requirement that anonymous tips must be corroborated.

    There is a problem here in that the report was not in fact anonymous.

    What we don’t get here is if the report was true, or if there is some reason to believe it was made up by somebody who wanted to stop the car (say, someone had sold it to them and they didn’t pay for the marijuana.) Justice Scalis says:

    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.

    Justice Scalia suspects there was another motive here and the tip, in fact, was not true.

    It might not have been anonymous, but someone used a false name.

    Sammy Finkelman (0e1021)

  60. It is possible maybe even to suspect that the whole story is not true, but it would kind of risky, and not necessary for police to fabricate the whole thing.

    If this was designed to catch those people, without giving a clue as to how you knew, how would the marijuana be obvious? It might have been the bags.

    Sammy Finkelman (0e1021)

  61. Comment by Steve57 (013200) — 4/23/2014 @ 4:16 pm

    “Excuse me, sir, we someone called 911 and said you ran through a stop sign. I need to search your vehicle to see if I can find any evidence that can verify that information.”

    No, what they would want to do, is get close close enough to vehicle to see if the driver was intoxicated – maybe ask him to take a breathalyzer test, or see if there was something wrong with the vehicle.

    The claim here is that’s what they were trying to do, but they never even did that.

    Once they got close to the vehicle, they say they smelled marijuana – and that caused the rest of it.

    This claim could be true, if the driver or someone else, had smoked marijuana some time before.

    It could also be true there was something else that told them there was marijuana there (the sacks) but this is not accepted by courts as probable cause, even though it really is.

    Sammy Finkelman (0e1021)

  62. 57. Comment by Steve57 (013200) — 4/23/2014 @ 4:03 pm

    So, how does pulling a guy over who isn’t intoxicated and is insured, even though just barely, prevent an accident?

    Till they pull him over, they don’t know he’s not intoxicated, or tired, or driving a disabled vehicle.

    Sammy Finkelman (0e1021)

  63. Sammy, I suspect that you are right. That the tip was a phony. That the whole story of the stop is a phony. That the cops had information about the marijuana delivery the source of which they did not want to, or could not, reveal. It may have been illegal eavesdropping NSA style; it may have been an imbedded informant they don’t want to burn. I actually defended a gun case like this in Chicago with a totally made up affidavit for the warrant — the cops, it turned out, knew they were going after guns but on the affidavit they put down that the informant had told them about drugs, which were nonexistent, in order to protect their informant’s identity to the greatest possible extent.

    Union of Serious Commenters for the Discussion of Serious Matters in a Serious Matter Seriously (dbc370)

  64. nk the forgetful was the Union etc.

    nk (dbc370)

  65. Police must always ignore calls to 911 phone lines about reckless drivers because they might find evidence of other criminal activity during a stop based upon reasonable suspicion which might be challenged in court and allow the potentially reckless driver to proceed unimpeded to potentially endanger other motorists.

    daleyrocks (bf33e9)

  66. Calls to 911 phone lines about reckless drivers never have any credibility and are always made by malevolent tipsters.

    daleyrocks (bf33e9)

  67. In a word, yes. In more words, if their own observations do not agree with the anonymous tip, yes.

    nk (dbc370)

  68. But not after this decision.

    nk (dbc370)

  69. Natasha, Katya and Olga are standing in front of the GUM store in Moscow. Natasha says, “How I wish I had a pair of Levi’s jeans”. Katya says, “How I wish I had a DK blouse”. Olga says, “How I wish my parents were still alive”. Katya and Natasha hug her consolingly. “Yes”, Olga continues, “because then I could turn them in to KGB for the 50 ruble reward and buy both the jeans and the blouse”.

    nk (dbc370)

  70. “In a word, yes. In more words, if their own observations do not agree with the anonymous tip, yes.”

    nk – In a word, no.

    daleyrocks (bf33e9)

  71. Actually, nk, as Scalia points out it isn’t that what they observed didn’t agree with the tipsters information. The tipster merely said she had been “run off the road.” It was the cops who heard that and jumped to a conclusion. What the majority (but a sane group of people) deemed a “reasonable suspicion” that the driver was intoxicated. Not only did their own observations over the course of five minutes not agree with that dubious reasonable suspicion. They contradicted it.

    But then after this ruling cops are relieved from the duty of having to make any observations. Uncorroborated, unverifiable tips from people whose trustworthiness is unknown to the officers can now be taken at face value and by definition sufficient to form reasonable suspicion entirely on their own. So they can just pull people over immediately.

    Steve57 (013200)

  72. Police must always ignore calls to 911 phone lines about reckless drivers because they might find evidence of other criminal activity during a stop based upon reasonable suspicion which might be challenged in court and allow the potentially reckless driver to proceed unimpeded to potentially endanger other motorists.

    Calls to 911 phone lines about reckless drivers never have any credibility and are always made by malevolent tipsters.

    daleyrocks, master of the straw man.

    Steve57 (013200)

  73. “daleyrocks, master of the straw man.”

    Steve57 – Not at all. Just drawing the only possible conclusion from the field of blazing straw men you and others have erected on this thread. Typical of you to point the finger the wrong direction, though.

    daleyrocks (bf33e9)

  74. Right. Saying that the police shouldn’t pull people over based solely on some tipster of unknown character or reliability when their own observations contradict the suspicion that there’s an ongoing crime (drunk driving) = Police must always ignore calls to 911 phone lines about reckless drivers.

    That’s the only possible conclusion, eh, daley?

    Let teh whining commence!

    Steve57 (013200)

  75. Dispatch: Calling Car 54, Calling Car 54.
    Toody: Car 54.
    Dispatch: Citizen claims that the Kaiser stole his string and is fleeing afoot on Addison Street West from Sheffield.
    Toody: Citizen, not anonymous?
    Dispatch: Citizen, one nk.
    Toody: That makes it reliable. Any description of the suspect?
    Dispatch: Citizen states that everyone knows what the Kaiser looks like.
    Toody: Ten-four, dispatch.
    Muldoon: There he is, Toody.
    Toody: There’s who, Muldoon?
    Muldoon: The string-thief.
    Toody: He’s not dressed like the Kaiser, he’s wearing jeans, a Cubs jacket and a Cubs cap.
    Muldoon: He’s just trying to blend in with the crowd.
    Toody: Where’s the string?
    Muldoon: Under the Cubs jacket I’d guess. We’ll have to frisk him.
    Toody: Keep your roscoe handy, Muldoon. We don’t want to take any chances.
    Muldoon: All right, you! Drop the peanuts and raise your hands … oh, good morning Mr. Mayor.

    nk (dbc370)

  76. 63. Comment by Union of Serious Commenters for the Discussion of Serious Matters in a Serious Matter Seriously (dbc370) — 4/23/2014 @ 7:25 pm

    Sammy, I suspect that you are right. That the tip was a phony. That the whole story of the stop is a phony.

    The tip could have been a phony, without the polie story being a phony. What looks clear is that later, the prosecuting attorney was not able to identify the caller, although, apparently, the caller gave a name. There was a tape, but he did not have access to it. The whole story could be a complete fabriication, but that’s going pretty far and it is likely if anything like that is true there’s a whole lot irregular and more, going on in that jurisdiction. What we do we know about the California Highway Patrol, or their source?

    That the cops had information about the marijuana delivery the source of which they did not want to, or could not, reveal. It may have been illegal eavesdropping NSA style;

    Very unlikely – if there was something somebody might not have wanted to reveal, it would be the name of a confidential informnant.

    it may have been an imbedded informant they don’t want to burn.

    Something like that.

    I actually defended a gun case like this in Chicago with a totally made up affidavit for the warrant — the cops, it turned out, knew they were going after guns but on the affidavit they put down that the informant had told them about drugs, which were nonexistent, in order to protect their informant’s identity to the greatest possible extent.

    The question is would the cops in California do that, and if so, which cops?

    Sammy Finkelman (6ee5be)

  77. I know I’ve linked to this before but it’s worth noting again for a variety of reasons.

    http://capoliticalnews.com/2012/10/28/police-union-intimidates-california-city-council/

    Many people were outraged this summer after a private investigator, with ties to a law firm that represents 120 police unions in California, made an apparently false report to the cops claiming that a councilman in the Orange County, California, city of Costa Mesa stumbled out of a bar drunk and was weaving all over the road as he drove home.

    The clear goal was to embarrass a councilman who had been leading the charge in his city for pension reform, outsourcing, and other reforms. Evidence showed that the councilman, Jim Righeimer, had nothing to drink and did not stumble. Subsequently, other officials revealed similarly disturbing tactics from police in their cities.

    Note that this P.I. provided the exact same “indicia of reliability” that the tipster in the Navarette case provided which the majority put such great faith in. Vehicle description, license plate no., the street the vehicle was on as well as direction of travel. The P.I. even correctly identified the bar the councilman came out of; he was there for the kind of neighborhood meet and greet that all politicians engage in, not to drink.

    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. In evidence law, we generally credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because “substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.”

    Uhh, the polite term for what these justices just spewed onto that page is bovine manure. Again, see the above report about the false report about the councilman. It contains all the same elements. If one already rehearsed what to say ahead of time, then there’s no need to make up the “conscious misrepresentation” on the fly. The P.I. knew where the councilman was going to be, and he was able to report his premeditated story in “substantial contemporaneity” of the event.

    Note that the technical and procedural safeguards that supposedly prevent false reporting also did did nothing to prevent this P.I. from making a false report to 911. Why? Because it was not entirely false. The councilman had been at that bar. The councilman had driven home in the car the P.I. correctly described, on the street the P.I. had named.

    After that, it’s just one person’s word against another’s. The P.I., who in all likelihood is an ex-cop, unlike most people knows the 911 system had identified his number. But so what? All he has to say is how things looked to him.

    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.

    Yes, but has anyone ever been charged with falsely reporting a traffic violation for which there is no and can never be any evidence to prove one person’s word over another’s? It didn’t happen in this case; has it ever happened in an unverifiable traffic case anywhere in the US?

    If anyone calls and reports a traffic violation, even a serious one such as reckless driving or someone weaving, either of which may be evidence of drunk driving, unless that traffic violation results in one car making contact with another car or other object there simply is no physical evidence. As well written as Scalia’s dissent was, I would have taken an extra step. Since this concerns the Californian Highway I would have surveyed the heads of every state police agencies. After giving them the bare bones scenarios of both the reports in the Navarette case (reckless driving) or the Costa Mesa incident (suspected drunk driving) have they ever invested the time and resources to track the identify and investigate whether the person reporting the violation to 911 deliberately made a false report.

    I strongly suspect I know the answer why?

    http://www.cnn.com/2013/12/09/justice/george-zimmerman-girlfriend/index.html

    http://frederickleatherman.com/2013/11/19/transcript-of-victims-911-call-in-george-zimmermans-dv-case/

    George Zimmerman’s girlfriend didn’t even get charged with filing a false report even though the affidavit she signed under penalty of perjury directly contradicted what she said on the taped 911 call.

    Affidavit:

    But in a signed affidavit filed by Zimmerman’s attorney, Jayne Weintraub, Scheibe says Zimmerman “never pointed a gun at or toward my face in a threatening manner” and claims police misinterpreted her.

    “I believe that the police misinterpreted me and that I may have misspoken about certain facts in my statement to the police,” she said. “I do not feel that the arrest report accurately recounts what happened.”

    Transcript:

    SAMANTHA: I’m doing this again?? You just broke my glass table, you just broke my sunglasses and you put your gun in my freaking face and told me to get the f*** out!! This is not your house. No, get out of here!

    If Samantha Scheibe couldn’t get prosecuted for making a false 911 report, and the P.I. in the Costa Mesa incident didn’t get prosecuted even though there’s every reason to believe that anyone reporting witnessing a traffic violation that may or may not have occurred could ever get charged with making a false 911 report?

    Such is the illogic behind this decision. Were the judges in the majority born yesterday? They simply weren’t dealing with reality. Every single factor they cite that they claimed enhanced the credibility of report in the 911 call in Navarette exists in documented cases when there is every reason to believe the report to 911 call was not only false but deliberately and maliciously so.

    Steve57 (013200)

  78. Optical mouse which selects and cuts faster than a speeding bullet strikes again. Deleted test in bold.

    …didn’t get prosecuted even though there’s every reason to believe he deliberately filed a false report, is there any reason to believe that anyone reporting witnessing a traffic violation…

    Steve57 (013200)


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