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U.S. Supreme Court

Roberts, Scalia Argue Undisturbed DWI Decision Grants ‘One Free Swerve’

Posted Oct 20, 2009 9:35 AM CST
By Debra Cassens Weiss

Two dissenting justices argue the U.S. Supreme Court should have heard a case on the power of police to pull over drunken-driving suspects based only on anonymous tips.

Chief Justice John G. Roberts Jr. issued “a strong dissent” to the cert denial, joined by Justice Antonin Scalia, SCOTUSblog reports.

At issue in Virginia v. Harris is whether police are required under the Fourth Amendment to corroborate a tip about drunken driving with their own observations before stopping a driver. The Virginia Supreme Court ruled in a 4-3 decision that officers may not act until they observe the driver doing something unsafe.

“The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police,” the dissent (PDF) says. “It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.”

Comments

1.

AndytheLawyer
Oct 20, 2009 10:11 AM CST

The problem is that an anonymous tip, by definition, doesn’t create sufficient “reasonable suspicion” to justify a stop.  The solution is societal, not constitutional.  If you’re going to phone in a tip about a drunk driver, have the guts to leave your name and number with the police.

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2.

JM
Oct 20, 2009 11:10 AM CST

Of course the ultra conservative wing of the Supreme Court takes the position that the police can act on an anonymous tip.  Just another way to let the jack booted thugs sneak past our constitutional rights.  The majority was correct.  Can the police use an anonymous tip in an affidavit supporting probable cause for a search warrant?  I think not.  It is simply not reliable.

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3.

jp1954
Oct 20, 2009 12:00 PM CST

Is this an example of Roberts & Scalia’s allegience to “strict constructionism” or “contextualism?”

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4.

DEd
Oct 20, 2009 1:18 PM CST

Using their logic an anonymous tip could justify the stop and search of any individual at any time for “public safety.” Their pathetic appeal to the heart strings….is not a rteaon to end around the constitution.

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5.

B. McLeod
Oct 20, 2009 2:02 PM CST

[Real world]:

Q:  Officer, where were you on the evening of date, year, about 11:25 p.m.?

A:  I was at the intersection of X and Y streets, observing traffic.

Q:  And why had you stationed your vehicle there?

A:  We had received an anaonymous tip that a heavily inebriated driver in a [color], [year] [make & model] vehicle had left a local establishment and was likely to be driving on a route that would entail passing thorugh this intersection.

Q:  While you were stationed at the intersection of X and Y, what did you see?

A:  I saw a [color], [year] {make & model] vehicle, such as we had been warned about, traveling in a [N. S. E or W.] direction down X Street. . . .

A:  . . .and then I saw it swerve [saw the driver discard a green, leafy substance][detected a strong odor of a burning, illicit substance][noticed the light over the rear plate was not functioning][etc.].

Q:  And Officer Barbrady, what did you do then?

    *  *  *
[We already know the answer].  Anybody see an important, Constitutional safeguard?

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6.

Freedom Now
Oct 20, 2009 2:59 PM CST

Good!  The power of the police state is at an all time high—-and must be reduced!!!

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7.

AndytheLawyer
Oct 20, 2009 3:48 PM CST

#5—Your hypo adds a fact not present in the case for which the Supremes denied cert—the cop actually seeing driving misconduct.  Harris involved something quite different—a stop based on an anonymous tip alone, WITHOUT the cops seeing any such misconduct themselves.  That’s where the 4th amendment gets triggered.

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8.

B. McLeod
Oct 20, 2009 9:04 PM CST

Maybe I was too subtle, Andy.  That’s great for the one defendant in this one case, but in every case hereafter, the officer will see the vehicle swerve as necessary.  If the driver blows a 3.0 when they’re pulled out of the car, nobody will ever credit their claim not to have swerved.  On the other hand, if they pass the test, they drive on, so there is never a case or motion challenging whether they swerved.  This case accomplishes nothing, except for one person who had the lucky facts.

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9.

That Lawyer Dude
Oct 21, 2009 12:33 AM CST

McLeod, you don’t mean to say the officer will make up the swerve to convey probable cause upon the situation do you??
How will we know whether he is telling a lie or not??
OH Right, when he is lying his lips will be moving…

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10.

Realist
Oct 21, 2009 3:36 AM CST

We all know that our men in blue are not above being creativity when it comes to these types of situations.

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11.

B. McLeod
Oct 21, 2009 7:23 AM CST

Or, for that matter, simply electing to follow the vehicle for some number of miles until it actually does swerve, fail to signal a turn/lane change properly, etc.

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12.

MIke
Oct 21, 2009 7:49 AM CST

Even the police (at least the NYPD) have a name for their creativity on the witness stand; they call it “test-i-lying.”  And they see no problem with it because, in their eyes, much like those of most prosecutors, all arrested are skells and perps who deserve to be locked up.  Its shameful, and that’s from a “law and order” conservative.

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13.

Fred
Oct 21, 2009 1:34 PM CST

To protect and serve, baby.  Protect your own ass (and those of your fellows) and serve your own needs.

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14.

Bakes, Esq.
Oct 21, 2009 1:51 PM CST

Good stuff B. McLeod… that’s precisely the danger we’re supposed to be guarding against, and why I say that many of these Supremes live in a world untouched by reality.

True story… three weeks ago I was pulled over in Northern Virginia while searching for a secluded conference center.  While getting my license from my wallet I asked the officer what my infraction was… his response what that my vehicle “fit the description” of another reported to have been driving on the wrong side of the highway.  My stifled chuckle and eyeroll gave away my contempt for his answer, from which he quickly back-pedaled “of course you don’t appear to be drunk so I’m sure it wasn’t you”.

I felt for a moment to remind him that w/o more that that was insufficient to give rise to PC, but decided to just cut my losses and move on.

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15.

WilliamBednarz
Oct 21, 2009 4:51 PM CST

based only on anonymous tips.
and I’m sure the police officers involved want to remain anonymous - so they can not be sued -
anonymous is just that - so how do you stop anonymous ....who’s anonymous and who’s real

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16.

Liz
Oct 21, 2009 9:52 PM CST

I kind of doubt there’s a huge number of anonymous tippers out there making bogus, “I think my ex is drunk!” calls every weekend? And even if that is, in fact, the case, would that matter if the narked-on ex didn’t actually drink before driving? Worst case scenario, some guy who only had two beers has some explaining to do, right? Yet the famously hardass court suddenly is all sympathy for individual rights? Of course.

I swear to god, I can predict every one of Scalia’s decisions by thinking, “What would Tucker Max do?”

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