The Supreme Court’s New “Freedom Destroying Cocktail”

The Supreme Court decided Prado Navarette v. California today with an opinion the dissent dubbed a “freedom-destroying cocktail.”  The 5 Justice majority, written by Justice Thomas, held: “the traffic stop complied with the Fourth Amendment because, under totality of the circumstances, the officer has reasonable suspicion that the truck’s driver was intoxicated.” 

The Majority

The majority believes a 911 call claiming petitioner’s truck ran her off the roadway contained “adequate indicia of reliability for the officer to credit the caller’s account,” even assuming the call had been anonymous (which it was, so I’m not sure why we’re “assuming”).  The court relied on several facts to support the caller’s veracity and reliability:

– the caller gave a specific description – color, make, model – of the vehicle

– caller provided a license plate number

– the timing of the call and location where the car was eventually located corroborated the location the caller gave 

– the fact that the caller called 911, which can identify and track calls (stopping just short of calling all 911 calls per se reliable…)

Then the majority concluded that the 911 caller’s report of being run off the road created a reasonable suspicion of an ongoing crime as opposed to an isolated incident, “we can appropriately recognize certain driving behaviors as sound indicia of drunk driving.”  Running another car off the highway is conduct that “bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.”  Thus, although the officer observed no additional suspicious conduct, even after 5 minutes of following the petitioner’s vehicle, he already had sufficient reasonable suspicion to stop the petitioner.  Thomas does throw a bone to the petitioners at the end, conceding it was a “close case.”

The Dissent


The dissent begins with every fact the majority ignored: “California Highway Patrol…knew nothing about the tipster…they did not know her name…her phone number or address.  They did not even know where she called from (she may have dialed in from a neighboring county.)”  And then Scalia gets feisty, debunking each basis on which the majority relies: “The [majority] says…’by reporting that she had been run off the road by a specific vehicle…the called necessarily claimed eyewitness knowledge.’ So what?…The claim to ‘eyewitness knowledge’…supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1.”  He continues, “there is not reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable.” 

And now for the majority’s assumption of drunk driving: “She…neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk.”  Further, the majority relies heavily on the tipster’s nondescript account of getting run off the road when “…who really knows what (if anything) happened?” 

“It gets worse.”  As pointed out (in passing) by the majority, the responding officers followed the petitioners for five minutes during which they did not witness a single traffic violation: “consequently, the tip’s suggestion of ongoing drunken driving (if it could be deemed to suggest that) not only went uncorroborated; it was affirmatively undermined.” 

As for the freedom destroying cocktail the majority is serving up, it consists of “two parts patent falsity”:

(1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location

(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness

After being served this cocktail, “all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness…”

Click here for the full opinion, or visit the Library > Supreme Court Cases — new

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming