The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Wednesday, October 21, 2009

Supreme Stool Pigeon

Chief Justice Roberts Makes a Case for “Guilty as Tattled”

U.S. Supreme Court Chief Justice John Roberts is tattling on his fellow Justices for refusing to hear a case. But that’s okay – in the view of Roberts, tattling is elevated from its old classification as playground peccadillo to a civic and moral duty.

The case in question is Virginia v. Harris.

In December 2005, Officer Claude Picard Jr. of the Richmond Virginia Police Department received notification via dispatch about an anonymous tip that Joseph A. Moses Harris Jr. was driving drunk. Officer Picard quickly located Harris because the anonymous tipster correctly identified the color and model of his car, the street and direction on which it was heading, and the color of Harris’s shirt, as well as partially identifying the car’s license plate.

Officer Picard followed Harris for some distance. During that time, he saw no instances of swerving or other recklessness indicating that Harris was intoxicated. Picard did note that Harris drove more slowly and applied his brakes sooner/more often than required. Finally, Harris pulled over of his own accord and Picard approached his car. The officer immediately noted the smell of alcohol on Harris’s breath and Harris failed a field sobriety test.

Picard charged Harris with feloniously operating a motor vehicle while intoxicated and Harris was subsequently convicted by the Circuit Court of the City of Richmond. Harris filed a motion to suppress his drunk test results during trial, arguing the investigative stop of his car was in violation of his Fourth Amendment rights against unreasonable search and seizure. The court denied the motion to suppress. The Virginia Court of Appeals agreed to reconsider the motion but ultimately sided with the lower court.

Harris then appealed to the Virginia State Supreme Court, which overturned his conviction. Writing for the majority, Justice S. Bernard Goodwyn explained that anonymous testimony always has a relatively low degree of reliability because, unlike testimony from a known source in court, the tipster’s reputation cannot be assessed nor can they be held accountable should their allegations turn out to be false.

While the information that Harris was driving drunk might have come from a concerned citizen, it could just as easily have come from a prankster, someone with a grudge against Harris, or someone with a political axe to grind about drinking and driving.

The court went on to note that anonymous testimony is more reliable when the tipster provides predictive information directly related to the alleged criminal activity. In this case, however, the tipster provided only descriptive information. Therefore, some additional, sufficiently corroborative information was required to justify reasonable cause for search.

Officer Picard’s original testimony in court did not describe Harris’s driving as “erratic.” (Picard used that characterization in subsequent testimony after it became clear it was a relevant differentiation to the court.) Instead, Picard described Harris as merely driving in an “unusual” fashion. The court maintained that lawful but unusual conduct is insufficient to generate a reasonable suspicion that the individual is involved in criminal activity.

Three Virginia Supreme Court Justices dissented from the majority. Their opinion, authored by Justice Kinser, quotes Alabama v. White that “There are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.”

The dissenters take pains to insist that the tipster’s report about the location and direction of Harris’s car represented predictive versus descriptive information. However dubious this may be pales in comparison to their assertion that its accuracy is “sufficient to support the conclusion that the informant had personally observed a vehicle being operated by an intoxicated driver,” failing entirely to relate to alleged criminal activity.

Instead, they again call upon White, as well as Illinois v. Gates, to avow, “Because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity.” In short, because the tipster accurately observed that Harris was wearing a green striped shirt, it is reasonable to assume their observation that Harris was intoxicated was equally accurate.

The dissenters then engage in a beautiful instance of circular logic, in which they argue that even if Officer Picard only observed unusual driving on Harris’s part, this was sufficient to justify investigation because it was already bolstered by the anonymous tip. The accusation makes Harris’s actions damning rather than neutral and the damning nature of Harris’s actions proves the validity of the accusation.

For his part, Chief Justice Roberts points out a majority of state courts have ruled that anonymous tips do not violate the Fourth Amendment and he pooh-poohs those that do – such as Wyoming, Massachusetts, and Connecticut, in addition to Virginia – not on the merits of the argument but the potential dangers from failing to investigate.

Noting that nearly thirteen thousand people die in alcohol-related car crashes each year, Roberts concludes, “The effect of the rule [in this case] will be to grant drunk drivers ‘one free swerve’ before they can be legally pulled over by police.” He goes on to fret, “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.”

There is no defending the fact that Harris was drunk when approached by Officer Picard. However, intoxication does not necessarily reflect or predict incapacity or dangerousness. Picard’s observations suggesting a hazardous swerve by Harris was unlikely to be forthcoming, rather than simply a matter of time.

More to the point, this seems yet another situation in which an understandable but zealous desire for safety is causing us to replace the old mandate of “innocent until proven guilty” with the assumption that any and all accusations, even anonymous ones, must be true because otherwise why would anybody bother to make them?

Protection of individual rights under the law is the cornerstone of our justice system and it is disturbing to see our nation’s top jurist ready to throw them out the window in the name of public safety/security, no matter how altruistic. Terrorism suspects at Gitmo have little reason indeed to hope for mercy or protections from Roberts if he is ready to take such a hard stand against potentially tipsy motorists.

So, remember kids, if you see something that looks suspicious to you, it is probably criminal. Report it to your local police as often as possible because they need every break on their side. Chief Justice Roberts says so. And if that isn’t good enough for you, so does Chief Justice Roberts.


Isonomist said...

While it's disturbing to think how easy it would be to "tip off" anyone you don't like, just to see if it sticks, I do think drunk driving is a special case. It's not an obvioua call for me, though I can think of a number of situations in which it would be. Cops have a very narrow range of choices in ambiguous situations like that-- a sympathetic cop might have chosen to simply follow the man home to make sure he got there in one piece. But what police force has time for that as a policy? Instinct has to play a part in police work, and compassion as well.

But I don't see how a ruling either way on this case could shed much light on future behavior for law enforcement. It's not just they're damned either way; how indeed do they know what their job is, once rulings get this granular?

TheBell said...

Hi, Isonomist. I agree that what I advocate is specific to this specific case but I hardly think it is entirely unique either. The question is not, upon confirming the driver was drunk by observing his driving, the police officer might have "cut him a break" as you suggest but whether he would have observed drunken driving without the accusation. In this case, I believe the police officer filtered what he saw as "druken behavior" because the anonymous tip had placed that idea in his mind. This is what I think the law needs to continue to guard against and what Roberts seems to want to tear down. Everyone wants to protect people, regardless of where they stand on this issue. The question is where the balance of protections should lie. Thanks for your reply.