In anonymous tips case, Supreme Court doesn’t tip its hand

McClatchy Washington BureauJanuary 21, 2014 

— An Aug. 23, 2008, drug bust along the Northern California coast prompted Supreme Court scrutiny Tuesday into the proper use of anonymous tips.

Alerted by a call about a reckless driver, California Highway Patrol officers stopped a silver Ford F-150 pickup on Highway 1 in Mendocino County that August afternoon. They found a driver, a passenger and, eventually, four odoriferous bags stuffed with 30 pounds of marijuana.

The otherwise routine arrest has since triggered a national controversy over whether the anonymous tip was sufficient evidence to justify stopping and searching the truck. During an hour-long oral argument Tuesday afternoon, Supreme Court justices sounded ambivalent about the answer. On the one hand, conservatives and liberals alike suggested public safety stops make sense on roads where drivers have necessarily given up some privacy.

“In a context where we have approved sobriety checkpoints, why should we get bent out of shape over this?” asked Justice Elena Kagan, an Obama administration appointee.

Chief Justice John Roberts Jr. and Justice Antonin Scalia, both Republican administration appointees, added escalating examples that included tips about small explosives, kidnapped children and an atomic bomb aimed at the heart of Los Angeles, all in an effort to see where legal lines might be drawn.

“You get an ‘A’ for consistency,” Justice Anthony Kennedy told Berkeley-based defense attorney Paul R. Kleven, who was resisting admitting exceptions to a rule against relying on an anonymous and uncorroborated source, but “I’m not so sure about common sense.”

Kleven insisted that “officers acting on anonymous tips must corroborate the tips’ assertion of illegal conduct, as well as the identifying details, before making a stop, whether that tip involves erratic driving, illegal gun possession or any other allegation of misconduct.”

But in a sign of the case’s complexity, some of the same justices who sounded sympathetic to police searches in order to protect the public raised equally pointed questions about limiting such searches. Roberts repeatedly raised the possibility of malicious tipsters spreading false information, while several wondered how serious a tip needs to be before being acted upon.

“What if the call is . . . he didn’t have his seat belt on?” Roberts asked.

“What about cutting me off too quickly?” Scalia asked later. “Cuts right in front of me. Really ticks me off.”

Jeffrey M.K. Laurence, California’s supervising deputy attorney general, stressed that “the threat to public safety” justifies stopping and searching a car for which a tip has been received, adding that “the public knows what they see when they make these calls.” Laurence further declared that “we have to take the seriousness of the offense into account” in making any decision.

Underscoring the high level of interest, Florida led 31 other states in a legal brief supporting California law enforcement officials, while the Obama administration also joined in on California’s behalf.

“They serve a critical government interest in removing drunk drivers from the road,” said Rachel P. Kovner, assistant to the solicitor general.

Emergency dispatchers in the August 2008 incident did obtain specific information, including the license plate number, concerning the southbound truck that reportedly ran the anonymous tipster off the road. The responding California Highway Patrol officers, though, did not see any sign of erratic driving before they pulled over driver Lorenzo Prado Navarette and his brother, Jose Prado Navarette, several miles from the town of Fort Bragg.

Anonymous tips have caused problems in past Supreme Court cases.

In a 2000 case out of Florida, justices unanimously ruled Miami-Dade Police Department officers were wrong to search a teenager at a bus stop based solely on an anonymous tip that he was carrying a gun. Justices noted in the Florida case that police could not confirm the informant’s reliability.

Justice Clarence Thomas, as is his custom, was the only of the nine justices not to speak or ask questions during the oral argument. A decision is expected by the end of June.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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