On January 21st, the Supreme Court will hear argument in Navarette v. California, a Fourth Amendment case on whether an officer who receives an anonymous tip regarding drunk driving must corroborate the dangerous driving before stopping the car. Reading through the briefing in the case, I was struck by the surprising argument advanced by the state of California and (to some extent) by the United States. In this post I’ll explain the argument, and why it makes Navarette a much more interesting case than it first seemed.
When the Court granted cert, I thought that the issue in Navarette was just about the standard of “reasonable suspicion,” the standard required to make a Terry stop. But the California brief takes a different approach. Instead of just asking when “reasonable suspicion” exists, California asks the Court engage in interest balancing on a case-by-case basis. In California’s view, the reasonableness of a stop isn’t based on whether Terry‘s reasonable suspicion standard has been satisfied in the abstract. Instead, California sees Terry as merely one application of reasonableness balancing, and it asks the Court to engage in interest balancing afresh by considering the nature of the crime to be investigated when assessing whether the stop was reasonable. The basic idea is that drunk driving is so serious a problem that stopping a car for suspected drunk driving requires less cause than would a stop for a less serious offense. The more serious the crime, the less suspicion is needed.
California’s approach to the Fourth Amendment is revolutionary. I have always understood the Terry standard to be transsubstantive, in the words of Bill Stuntz. The same standard or reasonable suspicion applies across all crimes, just as it does with probable cause. Switching to a case-by-case approach which factors in the seriousness of the crime would be a dramatic change. It would replace the one-size-fits-all rules of Terry v. Ohio with a totality-of-the-circumstances standard. I tend to think that would be a bad idea for a bunch of reasons. For one thing, a case-by-case approach is hard to apply in the context of a motion to suppress. A vague standard lets courts manipulate the outcomes more than a clear rule. Also, the perceived seriousness of crimes can fluctuate considerably. The drunk driving offense that California considers so dangerous today was thought to be a very minor violation not long ago. Given that, I don’t think a case-by-case approach is likely to be workable. But whether I’m right or wrong on the normative question, California’s brief makes Navarette much more interesting and significant than it first seemed.