Chief Justice Roberts published a dissent from denial of certiorari today in a Fourth Amendment case, Virginia v. Harris, that is interesting in part because it resembles his dissent from denial of certiorari last year in Pennsylvania v. Dunlap (a.k.a. the “tough as a three dollar steak” opinion).
In both Harris and Dunlap, a state Supreme Court imposed a Fourth Amendment rule that a single source of suspicion did not allow the police to take an important investigative step. In Dunlap, the Pennsylvania Supreme Court had ruled that the officer who saw a “single isolated transaction” that he strongly believed was a drug buy did not have probable cause to make an arrest based on it. In Harris, the Virginia Supreme Court ruled that an officer who received a report of a drunk driver did not have reasonable suspicion to stop the car based on it. In both cases, Chief Justice Roberts, joined by one other Justice, wrote an opinion saying that the Court should have taken the case.
It’s too early to say whether these dissents suggest that Chief Justice Roberts is particularly interested in Fourth Amendment cases, or whether they mean something else. But I found the similarity between Harris and Dunlap pretty interesting.
SuperSkeptic says:
I would just like to note, initially (before I read Dunlap), the absurdity that the Virginia Supreme Court held not that there was no probable cause for a search and seizure of a person driving in a car, but that there was no reasonable suspicion for a search and seizure of the driver of a car. It is absurd that people moving around the country in cars have reduced 4th amendment rights by virtue of that fact.
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October 20, 2009, 7:23 pmMark N. says:
Brief stops based on “reasonable suspicion” rather than “probable cause” derive from Terry v. Ohio, which involved detaining pedestrians, so cars aren’t actually to blame for that, though they seem to be a popular place to apply the doctrine.
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October 20, 2009, 7:30 pmOrin Kerr says:
SuperSkeptic,
As Mark N says, the claim was lack of reasonable suspicion to make a Terry stop; it’s not a question of reduced expectations of privacy in automobiles.
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October 20, 2009, 7:40 pmSuperSkeptic says:
Neither should it be applicable to pedestrians. But let’s not kid ourselves, we functionally have a reduced expectation of privacy in automobiles.
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October 20, 2009, 7:50 pmShelbyC says:
If you buy into the grave danger proposed exception to jl, I wonder how drunk the guy has to be to constitue grave danger. IIRC driving a .08 makes you about 4 times as likely to get into an accident, which means that a guy driving 1 mile at .08 is as dangerous as a guy driving 4 miles sober. Hardly a grave danger. Driving at, say, .2 is much more dangerous.
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October 20, 2009, 7:57 pmSuperSkeptic says:
From the Pennsylvania Supreme Court in Dunlap:
“To be clear, we hold that, in reviewing probable cause, a police officer’s training and experience is not a probable cause factor []. If that were the case, the concept of probable cause as a constitutional barrier between the privacy of the citizen and unwarranted governmental intrusions would be undermined by an officer’s ability to bootstrap a hunch based on constitutionally insufficient objective evidence simply by adverting to his experience as the foundation of his suspicion. ...” (The Court also noted that the facts of Dunlap also fail to meet Terry-stop criteria either)
It seems that this is the key to the PA supreme courts rationale for declining to find probable cause — and precisely what C.J. Roberts wants to reverse. He trusts officer Devlin alot more than than the Pennsylvania Supreme Court does — and I think they might know a little bit more than the C.J. about “North Philly” as well as the Philadelphia Police Department.
I wonder why they didn’t simply find an adequate and independent state grounds under the PA Constitution — they might as well have in order to keep Roberts off their backs.
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October 20, 2009, 8:02 pmSteve says:
IIRC driving a .08 makes you about 4 times as likely to get into an accident, which means that a guy driving 1 mile at .08 is as dangerous as a guy driving 4 miles sober.
Don’t you think this argument proves a little too much? I mean, even if his blood alcohol level makes him 100 times as likely to get into an accident, we still don’t arrest people for driving 100 miles sober, so where’s the problem?
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October 20, 2009, 8:42 pmMark N. says:
I think the argument’s aimed at the claim of the dissenters that stopping drunk drivers immediately, rather than tailing them a bit first until the police officer has first-hand evidence of erratic driving, causes imminent harm. If drunk drivers are only 4x more likely to get in accidents per mile than sober drivers, tailing them for a mile or two rather than stopping them immediately has relatively low costs.
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October 20, 2009, 8:52 pmJay says:
Is the reference to the VASC as the “court below” on page 2 normal SCOTUS style? I thought that phraseology was reserved for the lower federal courts. Our Federalism, and all.
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October 20, 2009, 9:38 pmShelbyC says:
Correct, although Steve makes a good point that even if the guy’s drunk enough to be 100 times likely to cause an accident, following him for a little while isn’t that dangerous.
I just read the Pennselvania case, and geez. It’s like the guy really has to pee and the only place he can go is on the fourth amendment. I wonder if little old ladies in a nice neighborhood can be searched for this conduct. And somebody should tell the guy about braising.
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October 20, 2009, 9:45 pmSuperSkeptic says:
Off topic, but you know, C.J. Roberts’ writing seems to have acquired an endearing populist following among us for these kinds of colloquialisms, but frankly, I find it rather cheap and derogatory.
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October 20, 2009, 9:58 pmCrazyTrain says:
Dunlap! — for that opinion, Roberts should be removed from the Court. Not because of his substantive view of the Fourth Amendment (which I really don’t have a strong opinion about), but because the first paragraph is, by leaps and bounds, the lamest prose I have ever read in the US Reports, or the Federal Reports for that matter. It makes Justice Blackmun’s pretentious “machinery of death” opinion look like sophisticated poetry. I mean, read this,
Makes me gag! Sounds like a freshman college student taking a stab at writing his first detective story.
Sorry, but had to get that out of my system again!
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October 20, 2009, 10:03 pmOrin Kerr says:
Glad to help, CrazyTrain.
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October 20, 2009, 10:50 pmAnon321 says:
Roberts likes to use short, punchy sentences that sound more conversational than traditional legal writing. This approach often works to his advantage, but I agree with CrazyTrain that he sometimes fails miserably. The first two sentences of Nken v. Holder are: “It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Blech. I’m all for simplifying complex legal issues into language that lay people can understand. But platitudes like this go too far.
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October 20, 2009, 11:05 pmOrin Kerr says:
Anon321,
I actually liked those two sentences, as the platitudes (at least as you call them) were at the heart of the case and only took a few words. I tend to agree that the Dunlap introduction was over the top, although I see it as a minor stylistic disagreement rather than the major affront that CrazyTRain suggests.
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October 21, 2009, 12:04 amDavid Schwartz says:
I’m torn by cases like this. On the one hand, I have a lot of experience processing complaints and have found that my hunches are usually right. You can usually tell when someone is complaining just to get the person complained about in trouble. You can usually tell when a person is complaining because they’ve observed a serious problem.
I wish we lived in a world where we could tell police officers that they could trust this intuition, because my bet is that it’s right far more often than it’s wrong. But unfortunately, police have lost a lot of trust, and I don’t think we can trust them to honestly report on their intuition.
I wish we could set up a system with appropriate safeguards. For example, allow police to pull over reported drunk drivers, but require them to videotape all such encounters and retain them for a certain amount of time. Require the police officer to give a card that explains why they were pulled over and that this is a brief stop just to determine if they’re drunk. The card should also explain where they can complain and that a video tape will be retained if the Terry stop turns into a fishing expedition.
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October 21, 2009, 1:52 amwhit says:
the scotus may believe that a citizen report of a DUI isn’t enough, in and of itself to justify a terry stop, but in my experience, a citizen report is far better than a reasonable suspicion.
i’ve had at least 2 dozen times when a citizen has flagged me down or otherwise notified me (run up to my car at a stoplight, etc.) that “that car over there the guy is all over the road, or he looks drunk or whatever.
the VAST majority of time a citizen has made the effort to report to me, or to dispatch that a given car appears to be operated by a DUI, the result is that the driver was DUI. i can only think of one case where the guy wasn’t. out of AT least two dozen of these calls. that’s a pretty high standard of reliability. c the average citizen is usually not that observant. for them to call 911 or flag down a cop, it;‘s almost always the case that the guy was just all over the road.
iow, empirical evidence supports that it is reasonable to suspect the driver is dui. but the scotus can be wrong. god knows.
i also wonder, under harris, does it make a difference if MULTIPLE reports are made. often, when we get a call about a guy driving erratically (and we get these more now because of cell phones), we get at least 2 or sometimes many more reports.
i would assume that even though the SCOTUS thinks one is not enough, would several be enough to justify RS? how about if there is a lot of specificity “he drove over the center line 5 times in the last mile, and went off the side of the roadway into the dirt twice!” .
how about if the witness was not anonymous, but provided his business card with his cell, so i could contact him later to get a written statement if i locate the car? (note: i always try to do this when people run up. at least get a phone #, so i can contact them later for a statement in the DUI report
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October 21, 2009, 3:17 amDavid Schwartz says:
I think the best solution is to let the cop use his judgment. It seems rather odd to try to come up with objective rules about how many reports, what type of reports, and so on.
We mostly just need to ensure that the Terry stops don’t become fishing expeditions. Recording the stops and instructing the police officers in how to handle them would do this quite handily, IMO.
That seems rather unlikely to be abused. That said, I don’t see much harm in the officer following the car for awhile. (But then this will repeat when we have two complaints, a complaint from a person known to the officer, a detailed complaint, and so on.)
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October 21, 2009, 3:29 amAlexia says:
http://www.timesfreepress.com/news/2009/oct/20/anonymous-tips-enough-stop-drivers-court-rules/?breakingnews
TN just ruled that one tip is indeed enough to pull somebody over....
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October 21, 2009, 8:14 amKen Arromdee says:
That has the same problems as allowing the officer to use his own judgment: if all parties are perfectly honest, it’s good and lets you catch drunk drivers. But it gives the officer an excuse to stop people at random based on “citizen suspicion”. It also allows citizens to harass people at random by falsely reporting suspicions.
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October 21, 2009, 8:58 amJeff J says:
I’m reminded that the touchstone of Fourth Amendment analysis is reasonableness. It’s reasonable for an officer to pull a driver over based on a report that the driver was drunk. True, the tipster could be wrong, or lying. But even if the report is wrong, the intrusion into the driver’s privacy and liberty interests is minimal. The cop is going to walk over to the guy’s car, talk to him and check out his demeanor, and maybe run his license and registration. At worst, the officer will conduct a field sobriety or breathalyzer test, and probably won’t go to that trouble unless the driver smells of alcohol or there is some other indication he might be drunk.
On the other hand, if the report is right, and the officer ignores it, the harm could be deadly.
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October 21, 2009, 10:20 amwhit says:
“That has the same problems as allowing the officer to use his own judgment: if all parties are perfectly honest, it’s good and lets you catch drunk drivers. But it gives the officer an excuse to stop people at random based on “citizen suspicion”. It also allows citizens to harass people at random by falsely reporting suspicions.”
every time we have one of these types of questions on miranda, seizure, whatever we get the “yea, but if the cop lies” argument.
it gets old.
for pete’s sake, if the cop wanted to lie, he could say the guy was swerving, why would he need the citizen? it’s a silly argument. yes, he could lie. so could the citizen. that’s the world we live in.
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October 21, 2009, 10:38 amtroll_dc2 says:
Automobiles can be dangerous to others when mis-operated. I think that any report that contains details of mis-operation ought to be enough to justify a stop, whether or not the report is anonymous. So I am with Jeff J, whit, and the Chief Justice on this one (even though I am not a fan of the Chief Justice in general).
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October 21, 2009, 10:57 amWednesday Round-up | SCOTUSblog says:
[...] on an anonymous tip that the driver was intoxicated violated the Fourth Amendment. Orin Kerr at The Volokh Conspiracy discusses the similarity between the Chief Justice’s dissent in this case and his dissent [...]
ShelbyC says:
Is empherical data that, for X circumstances, some threshhold percentage of folks are committing a crime enough to constitute resaonable suspicion? What if I could show, for example, that 90% of asians driving Hondas in LA were carrying drugs? What if I could show that 90% of people in general were carrying contraband?
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October 21, 2009, 11:46 amRealistLiberal says:
Whit~
At least in California there is a distinction between in person tips and phone call tips. If the person gives their name and phone number to the 911 operator they are considered “citizen informants” rather than anonymous callers. Or if a person makes a report to a police officer (as in your example of someone flagging you down) they are considered citizen informants. A citizen informant is presumed reliable and a single tip can justify reasonable suspicion. The belief is that people are going to be less likely to make a false report in such a way that they can be found again.
I am not sure if this is the case in other states. With that said, CA also has a case where a single anonymous caller regarding a DUI is sufficient. The case is very similar to the TN case linked to above.
Also, I’m with OK, I think Dunlap was a bit over the top but it got attention which is kind of the point of a dissent from denial of cert.
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October 21, 2009, 12:02 pmwhit says:
“At least in California there is a distinction between in person tips and phone call tips. If the person gives their name and phone number to the 911 operator they are considered “citizen informants” rather than anonymous callers. Or if a person makes a report to a police officer (as in your example of someone flagging you down) they are considered citizen informants. A citizen informant is presumed reliable and a single tip can justify reasonable suspicion. The belief is that people are going to be less likely to make a false report in such a way that they can be found again.”
that sounds entirely reasonable. i’m all about totality of the circumstances. i’m just sayin’ that based on a fair # of personal experiences, citizen reports of dui’s are darn accurate.
it seems to me to be similar to citizen reports of domestic violence. those reports, if they say they hear somebody yelling for help, or the sounds of a physical argument justify us entering a resident against an occupant’s consent to check the safety of the residents. that’s a much greater intrusion on privacy than stopping a car.
a car isn’t a house, and we aren’t saying the cops should search the car, just STOP it and contact the driver. if he’s sober,it’s a very minor convenience.
i do always try to get the RP’s name and phone #. that only takes a few seconds. if they refuse to give me that, THAT would certainly make me hesitant to make a stop based on their account.
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October 21, 2009, 12:28 pmBrian Garst says:
If a single anonymous tip is sufficient to justify reasonable suspicion, doesn’t that make reasonable suspicion meaningless? The cops could simply call in the tips themselves in order to ensure that they have reasonable suspicion where they may not have before.
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October 21, 2009, 12:34 pmwhit says:
“If a single anonymous tip is sufficient to justify reasonable suspicion, doesn’t that make reasonable suspicion meaningless? The cops could simply call in the tips themselves in order to ensure that they have reasonable suspicion where they may not have before”
wow. right after i called somebody out on the “but the cops could lie” argument that we see in nearly every search and seizure and miranda discussion, another one comes in.
yes, a cop COULD simply call in the tip himself. a cop could also simply pull a car over and CLAIM the car weaved and stuff. the latter is EASIER to fake (no phone call with voice analysis to worry about, traced calls, etc.)
the reality is that witnesses, and that includes cops, domestic violence complainants, storeowner, etc. all CAN lie to the police and many do.
but the issue is this. is a citizen complaint enough to MERELY stop a car. a brief investigative detention.
like i said, i prefer to always try ot get a name and phone #, but many of these calls come from dispatch and many people don’t give their name to dispatch.
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October 21, 2009, 12:43 pmBrian Garst says:
It seems to me that would involve determining whether the “citizen complaint” actually came from a citizen.
It’s rather silly to discount the idea that anyone ought to concern themselves with policing the police. Given the number of police abuses that occur every day, it’s ridiculous not to consider such precautions.
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October 21, 2009, 12:56 pmwhit says:
“It seems to me that would involve determining whether the “citizen complaint” actually came from a citizen.
It’s rather silly to discount the idea that anyone ought to concern themselves with policing the police. Given the number of police abuses that occur every day, it’s ridiculous not to consider such precautions.
”
how do you determine this in a matter of seconds?
again, it’s the “but the cops” argument again
“given the number of police abuses”...
what exactly is the huge motivation for a cop to risk his entire career by calling in a false complaint of a dui vehicle, that the patrol guys may never even FIND in the first place, just to get a guy pulled over?
for pete’s sake.
like i said, if a cop was that frigging dishonest, he could just pull any car over and make up the claim that they were weaving.
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October 21, 2009, 1:04 pmBob from Ohio says:
Drunk driving is a problem but not worth throwing the Constitution away. The Supreme court should never have
allowed road blocks either.
I am just driving, maybe at night, minding my own business. Suddenly, a police car puts on its lights, pulls me over, asks for my papers. If he doesn’t like my “demeanor” I have to get out of the car, goe through a series of tests that are highly subjective.
I say that is more than “minimal”. All stops create tension.
Lets go further. He gives me a breathalizer but then I can’t blow enough air so he arrests me. It turns out I haven’t had a drink at all. So, I get a “sorry” from the officer.
I think an officer should have at least observed some violation before he stops me. Might as well alllow totally random stops..
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October 21, 2009, 1:20 pmdisconnect says:
“IIRC driving a .08 makes you about 4 times as likely to get into an accident, which means that a guy driving 1 mile at .08 is as dangerous as a guy driving 4 miles sober.”
No, it means that if the sober guy has a .001%* chance of causing an accident within the next mile, the guy at .08% has a .004% chance of causing an accident within the next mile.
(*from the Department of Made-Up Statistics)
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October 21, 2009, 1:32 pmwhit says:
bob, fwiw dui roadblocks are unconstitutional in my state. otoh, our state constitution has a right to privacy.
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October 21, 2009, 1:38 pmCleanville Tziabatz says:
Or, better yet, mandate that the police pay (on the spot) $250.00 to any citizen suspected of drunk driving, but not drunk. Jack it up to $25,000.00 if the police force the citizen to go to court to get her $$$.
The possibility of such $250.00 payment would: (i) not stop the police from stopping anybody when they sincerely thought that there was a decent probability that the driver was truly dangerously drunk; (ii) would cut the fishing expeditions off right quick; and (iii) would compensate the citizen for the time and annoyance that the stop entails.
By providing just a moderate monetary incentive we would ensure that police really believed and really suspected what they say they believe and say they suspect. If they are wrong once in a while — $250 ain’t the end of the world. If poster whit is to be believed, then police would never pay a dime and would be expected to have no objection to my proposal.
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October 21, 2009, 1:54 pmwhit says:
“By providing just a moderate monetary incentive we would ensure that police really believed and really suspected what they say they believe and say they suspect. If they are wrong once in a while — $250 ain’t the end of the world. If poster whit is to be believed, then police would never pay a dime and would be expected to have no objection to my proposal.”
don’t put words into my mouth, and misstate my argument.
i said that in my experience, citizen complaints of dui’s are very reliable. i never said they were 100% reliable. for pete’s sake, reasonable suspicion means just that. if you want absolute certainty, you aren’;t going to get it
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October 21, 2009, 1:58 pmCleanville Tziabatz says:
http://www.news-leader.com/article/20091015/NEWS01/91015017
You mean like that one?
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October 21, 2009, 2:00 pmCleanville Tziabatz says:
At 90% reliability, you pay $250 per nine drunk drinking collars. Doesn’t seem like anything you would be complaining about . . . unless . . .
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October 21, 2009, 2:02 pmwhit says:
cleanville, this is a ridiculous argument
nobody should have to pay jack. it’s ridiculous.
yes, sometimes people get stopped for suspicion of drunk driving who are NOT drunk (actually, it’s impaired, not drunk that is the standard, but i digress).
literally thousands of people are alive who wouldn’t be if it weren’t for DUI enforcement getting more skilled and more emphasis placed on same, mostly due to MADD i might add, not cops. MADD forced cops to take DUI’s seriously.
reasonable suspicion means just that. if you want to change the constitution to require absolute certainty for subject stops, knock yerself out.
also note that MOST dui stops (but not one’s made solely on a citizen report without observation) involve at least one traffic infraction, which justifies a stop regardless of sobriety.
also, as i’ve said, DUI[‘s are unique in that the innocent have a foolproof out. the breathalyzer. any other kind of crime one can get arrested easily just because somebody lied (think Domestic violence). DUI gives the innocent a foolproof OUT if they aren’t impaired.
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October 21, 2009, 2:13 pmJohn M. Perkins says:
The 4th A isn’t the only issue going on here. It’s also docket management. The court decided that this isn’t one of the 80–100 cases worthy of close attention at this time. There could be a state’s rights bias. There could be a belief that the record doesn’t give enough details for a bright enough line. The dime novelist disagrees. So place Virginia v. Harris in the low 100s. Maybe the Tennessee case cited above might provide enough distinction for the court to bump this to bump this issue to the 80s or 90s.
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October 21, 2009, 2:32 pmCleanville Tziabatz says:
Whit, the reason that you have no idea what you are talking about is that you have never been in a vehicle that has been stopped for no good reason. Until you have that happen to you (without . . . whoops . . . showing your badge, I mean) then you have no idea what a pain and annoyance it is, or what kind of compensation is deserved. Until you have some experience on the other side of the bogus traffic stop you are simply unqualified to have an opinion on this — or at least one that matters.
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October 21, 2009, 2:45 pmwhit says:
cleanville, yet again with the false arguments
yes i HAVE been in a vehicle that has been stopped for no good reason ... more correctly, no good reason that I could tell
unlike you, i’m not omniscient
and until YOU can construct a reasonable and honest argument, i’m done.
how you could POSSIBLY know my life experiences and whether i have been in that situation or not... answer: you don’t. you’ve gone from silly arguments to making stuff up
incredible...
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October 21, 2009, 3:01 pmJeff J says:
Your hypothetical left out the reason why the officer stopped you in the first place. If he had no reason for the stop, it would be unconstitutional. If somebody reported a description of you or your car for drunk driving, he has reasonable suspicion to investigate long enough to confirm or dispel the concern. Again, the scope of the officer’s actions are tethered to the reasonableness standard. If, once he pulls you over, the officer observes that your eyes are bloodshot, your speech is slurred, and you reek of alcohol, it’s reasonable for him to administer sobriety tests. If, however, you exhibit none of these signs, it may very well be unreasonable for him to do so.
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October 21, 2009, 3:04 pmCleanville Tziabatz says:
I know that you haven’t been truly hassled by police at a bogus stop because then you would not be so dismissive of the time and annoyance occasioned thereby. Besides policemen are always in denial that any stops are bogus. When you have seen them happen firsthand then you know it isn’t true. I am not omniscient, but I did hook you up with a video of what a bogus stop looks like. Your denial is as clear as a bell.
Video? What video? We don’t know what that girl did before the camera came on! She made a wide turn, so she deserved whatever she got! She probably enjoyed the frisk part anyway. besides, I never get a reason when I have been stopped — the officer always just smiles and says “stay safe” as soon as I open my wallet. See, I have been there, too, but I just don’t whine about it./whit
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October 21, 2009, 3:24 pmwannabe plaintiff says:
So if the drunk does hit someone with the cop still trailing and waiting, and plaintiff sues for not stopping the drunk, is the tort/1983 defense that the state supreme court wouldn’t let me? So the defense would work in VA and other states not accepting the stops, but in states allowing such stops, the cops not using that power are on the hook?
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October 21, 2009, 3:33 pmwhit says:
cleanville, you don’t KNOW this.
you are not a mind reader, and you can’ admit you just made stuff up out of whole cloth, so i’m done wit ya!
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October 21, 2009, 4:01 pmCleanville Tziabatz says:
I speculated that you have never been the victim of a bogus traffic stop.
You replied that to the effect that you have been subjected to stop(s) that may or may not have been bogus, but none that you could be sure were bogus.
Two things:
(i) if you ever are subjected to a bogus stop, believe me you will know it. You will know by the lies the policeman tells your driver. If you don’t know whether any of your stops were bogus then they weren’t.
(ii) I may have speculated, but my speculation about no-bogus-stops-for-whit turns out to have been absolutely correct. Surprise, surprise, surprise! I must be the Great Karnac or something.
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October 21, 2009, 6:15 pmBob from Ohio says:
Sorry, the thread is about a “tip” so that is what triggered the stop.
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October 21, 2009, 8:43 pmwhit says:
fwiw, this is not a hypothetical (the thing about how long do you follow before you make a stop).
clearly, every additional second you follow w/o pulling the guy over, assuming he is impaired, the public is at additional risk. so, you are gathering MORE evidence, at the cost of more danger to the public. this has come up in DUI’s before, in court, in my experience. the threshold that justifies a stop is either reasonable suspicion of a crime (DUI) **or** a simple traffic infraction. one traffic infraction justifies a stop, but it doesn’t usually rise to the level of reasonable suspicion. a defense attorney has asked me on more than one occasion — how come you kept following the car once you saw it was weaving? if you thought you had reasonable suspicion, shouldn’t you have pulled it over immediately? unlike a crime like auto theft, where you can follow the suspect and watch him commit multiple crimes, there is a public safety issue here. the longer the cop follows, the BETTER the RS, but the greater the danger to the public.
clearly, like most issues in the law, there are tradeoffs. there always are.
the last time i had a citizen report of a dui, i was stopped at a red light and the guy ran up to me. yes, i got his name. he pointed ACROSS the intersection to a hummer that was receding in the distance and said it had been all over the road. every additional second i stood to talk with him, even to confirm his id, etc. was a greater chance the hummer would get away. so, i got a VERY brief synopsis, got the guy’s cell #, and blue lighted my way across the intersection. JUST as i got behind the hummer, it turned into a private lot and parked. so, i didn’t HAVE to make a stop. i could park such that he had the ability to leave, and just watch. i saw him literally FALL out of the car, at which point i walked up and could instantly detect indicia of impairment. he was LITERALLY falling down drunk. so, i was lucky. no “stop” issue, and by the time i approached him, i had excellent reasonable suspicion, plus no need to detain him, he was lying on the ground, and i needed to do community caretaking functions first anyway (is this a medical condition, etc.)
if i had followed the guy to get additional RS in addition to what the guy said (assuming he didn’t pull into the lot), the tradeoff between citizen safety and better evidence would have been in effect.
realistically speaking, the vast majority of stops cops WILL follow additionally after they find the vehicle, just to bolster the citizen report, but do i think it’s constitutionally NECESSARY? no. like i said, ime the VAST majority of citizen reports of DUI are in fact DUI. there is a high degree of reliability. citizens are not trained to look for subtle cues. and they are notoriously INattentive and clueless. iow, the ones they call in as DUI are usually off the richter scale falling down drunk ime.
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October 22, 2009, 12:47 ammarkm says:
No, it’s that the cops have no legal duty to protect citizens.
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October 22, 2009, 6:29 amCleanville Tziabatz says:
then there is no real problem in safeguarding the Fourth Amendment by making a moderate payment to those who are not dui. The payment only becomes a problem if this “vast majority” thing you say is untrue.
The exclusionary rule is a lousy remedy. It causes policemen to allege things like “vast majority” knowing that this is an unfalsifiable assertion. The only time they will get called to the carpet is when the driver really was drunk, however infrequently that may be. So they can say whatever they like and expect everyone will buy into it. When police lie about the reasonableness of their suspicions, we, as a society, have no way of knowing. In the competitive work of law enforcement there is a great motivation for policemen to lie about this (especially since 9/11 and its attendant salary bumps), and, based on that, I think they generally do.
Of course, when a regular citizen like me observes that the infractionless stops* I have seen personally** have never been impaired driving, I am supposed to believe that this experience is anomalous. But seriously, how many of these bogus stops do I have to observe before I know that “reasonable suspicion” is a sham in this context?
* I mean infractionless stops for minor driving irregularities that do not amount to infractions.
** FWIW, I have never been the driver on one of these. Always the passenger.
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October 22, 2009, 8:15 amPubliusFL says:
That’s the problem with making broad conclusions based on personal experience. Myself, I’ve never personally seen one of your “infractionless stops,” but I have personally seen a number of deserved stops for legitimate driving infractions. So am I supposed to believe that my experience is anomalous based on your experience? Or are you supposed to believe that your experience is anomalous based on my experience? I’m not sure how this is supposed to work.
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October 22, 2009, 9:22 amCleanville Tziabatz says:
I have seen several, maybe even many, stops for infractions that were actually committed. Not only that, I have never seen a police officer act like a jerk or tell a lie during one of these legit infraction-based stops. Unfortunately, that isn’t what we are talking about on this thread. Rather, we are discussing stops where the LEO(s) did not witness an infraction. They happen and they are a real problem, even if you have never personally suffered from it. If you don’t believe me, then you need to get out more, widen your social circle a bit, or, failing that, check out the video I linked upthd.
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October 22, 2009, 11:45 amwhit says:
“then there is no real problem in safeguarding the Fourth Amendment by making a moderate payment to those who are not dui. The payment only becomes a problem if this “vast majority” thing you say is untrue.”
the 4th amendment (and case law) doesn’t require that in all stops, a crime ACTUALLY had to occur.
the standard is this. and it’s the same for ALL crimes
1) for a stop, you need reasonable suspicion
2) for an arrest you need PC
in MANY cases we make stops based on reasonable suspicion, no crime has occurred and/or there is not sufficient PC to make an arrest. those stops weren’t bad or unjustified.
let me give you an example
if i see a guy in a parking lot at 2 am using a coat hanger to try to enter a car, is that reasonable suspicion ? yes.
i had one of those several months ago (i’ve been on disability since august). it turns out the guy was trying to enter his own car. no crime.
does that mean the police dept. should pay him for making a stop where no crime occurred? of course not
this is a PROCESS based analysis, not a results based analysis.
fwiw, i would bet most citizens want cops to stopping people for such behavior. heck, I have been the subject of suspicion stops before. they were justified, even though i had committed no crime. when i was working undercover, i often sayt in my car (a tricked out little mustang) surveilling. on one occasion, i had been surveilling by sitting in the car, occasionally using my bino’s etc. for 2 hours. a cop came up and made a stop, iow checked me out cause a citizen called in my susicious behavior. was it suspicious? of course. the cop did the right thing. the citizen did the right thing. but no crime had occurred (the cop was not ony m radio frequency, thus i did not hear the call).
we don’t ask or expect cops to have perfect knowledge. heck, we can’t even require that of a jury trial, just proof beyond a reasonable doubt.
it’s entirely likely that occasionally an innocent person will be convicted.
it is MORE likely that an innocent person will be arrested
and even MORE likely, that an innocent person will be stopped under terry v. ohio
dui’s are no different than any other crime. cops should be allowed to, and do, stop based on reasonable suspicion. unique to DUI;‘s is that in MOST cases, a stop where a cop has reasonable suspicion of a crime (DUI) he ALSO has probable cause of a traffic infraction. a citizen call-in with no witnessing of erratic heavior is an exception to the witnessing of an infraction part but is still imo reasonable.
and my extensive experience is that citizen reports of DUI are HIGHLY reliable. iow, a far greater %age of these stops result in actual criminal activity vs. other suspicion stops
however, the law does not require perfect knowledge. sorry, that’s not the world we live in. if it was, it would be near impossible to investigate crime.
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October 22, 2009, 11:07 pmpaul says:
ciizen reports of dui are highly reliable ....however the question is are anonymous reports reliable?...the answer has to be NO.Because if the answer is yes then people will handle there greviances with a call to police.....and while officers are dealing with those real crimes will go unatteded.....i know for me personnally if this is allowed i inntend to use this to resolve every problem i have.....so all you people out there who cut me off or piss me off in any way beware the cops will notified that you are dui and they will stop you and investigate,sobriety tests ‚breathalyzer,and lots of questions a the very least,and if you have had a beer or two its off to get a blood test,and a night in jail.Hope you all like the new america.
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November 2, 2009, 3:15 pm