This week the Supreme Court heard oral argument for a case very similar to the issue Appellate Writing & Advocacy students from last semester argued in briefs and before coaches, roommates, professors – anyone that would care to listen. Though the audio has yet to be released, I was eager to review the transcript released on Wednesday. Navarette v. California asks whether police can (and if so, under what circumstances) initiate an investigatory stop of a vehicle pursuant to a sparse anonymous tip. The case is different than most situations regarding anonymous tips for a variety of reasons, but most relevant is the nature and seriousness of the danger of drunk driving. It’s hard to separate the arguments I advanced as a student in Professor Greipp’s AWA course, but luckily, many of my and my fellow classmates’ arguments were voiced on Tuesday in the great hall.
Enough recitation of my argument summary; let’s talk about what happened. The petitioner’s primary argument rested on the important idea that what can create reasonable suspicion cannot fluctuate with the level of public interest implicated. The Chief Justice came out swinging with a somewhat comical hypothetical about a driver throwing bombs out his window while driving, while others speculated about the ability of police to pull over a car accused of containing a kidnapped woman in the trunk. The petitioners were unwilling to bend, and soon the Court asked what power the police had when a tip alleged a nuclear bomb was headed toward LA in the trunk of a car. After telling the Court the police should not be able to pull over a car accused of having a woman in the trunk, Justice Kennedy gave the attorney an “A for consistency…I’m not sure about common sense.”
There seemed to be support for the government among the Court’s most vocal Justices; Kennedy, Roberts, Alito, Kagen, and Scalia all grilled the petitioner. Justices Alito and Scalia eventually demanded the attorney for the petitioner state whether police could stop a car accused of having an atomic bomb inside (and even got an answer after several attempts). The central question for many of the Justices was where the line was; on one side was (presumably) an atomic bomb in downtown LA, and on the other was J.L. standing at the bus stop in his plaid shirt. That police don’t always need reasonable suspicion seemed a foregone conclusion, the debate was about when is a situation dangerous enough to warrant (ahem) a departure from the traditional standard.
Both the Justices and the attorneys spent the majority of their time determining whether holding for the government would mean the required level of suspicion varies with the danger involved, a premise I find to be fatal and one the government should have more clearly fought against. The slippery slope is too easy here. Rather, a distinct exception for suspicion of DUI is more feasible, like the Court did for roadblocks in Michigan Dep’t of State Police v. Sitz. That argument made a scant appearance, with Sitz only being mentioned once.
One legitimate concern in this case and in many AWA arguments is whether the description being provided by the tipster indicates drunk driving. This was an issue I tended to pivot from in argument, but it’s a question that needs an answer for the Court to deliver functional guidance. Unfortunately for this case, I believe more research is necessary to determine how good the average citizen is at detecting drunken driving or at least distinguishing drunk driving from reckless driving. Mr. Lawrence notes in his argument that statistics are sparse, though some 25 to 50 percent of tips made by citizens result in arrests. If citizens cannot accurately detect drunk driving, the crime of drunk driving essentially becomes concealed, and if the crime is concealed, it should fall under the traditional Florida v. J.L. framework.
I am not persuaded that the Court will find one way or another. To find an exception to J.L. would be the first such exception since that case was decided fourteen years ago – no small undertaking for any court. Furthermore, the eccentricities of this case are abound; no allegation of drunk driving was ever made, for instance. The cars were on a mountainous road where death or severe injury was more likely in case of an accident. These are frustrating factors that may leave the Court with some amount of buyer’s remorse, or perhaps make them wish they had taken the same legal question with similar facts two years ago in Virginia v. Harris, a petition they denied. Personally, I am hoping logic prevails and an exception is created for publicly-observable crimes like drunk driving. In any event, I look forward to the audio recordings, and eventually, the decision. I hope my fellow AWA students aren’t too jaded to read it while pretending they had argued the winning side in the great hall.