Friday, January 31, 2014

Phantom Tipsters: Oral Arguments in Navarette v. California

In this day and age is it still possible to make anonymous phone calls?  With the advent of caller identification on most phones, at the very least, one’s phone number is typically known to the person he is calling.  However, through the use of blocking one’s number or using an anonymous flip phone, it is still possible to remain anonymous when calling another person.  Further, it could be argued that simply knowing someone’s phone number does not give you any identifying information about that person.  This particular issue of how to handle anonymous tips given to the police was debated on January 21, 2014 and will be decided by the United States Supreme Court through the case Navarette v. California.  

This case involves determining how the police should handle anonymous tips received by its department.  The merits of this case have been previously discussed in the Supreme Court Watch section of the Blog, and this post will focus on the oral arguments that took place on January 21, 2014.  There were three attorneys whom argued in court:  Mr. Paul Kleven (on behalf of the Petitioners, Mr. Lorenzo Navarette and Mr. Jose Navarette); Mr. Jeffery Laurence (on behalf the Respondent, California); and Ms. Rachel Kover (on behalf of the United States who submitted an amicus curiae brief in support of California). 
Mr. Kleven began his argument by reiterating his point that anonymous tips need corroboration before officers can make a stop, no matter the type of conduct involved.  The Justices seemed concern about the application of this rule, and posed a hypothetical to Mr. Kleven involving a tip concerning a person throwing bombs out of a car.  Chief Justice Roberts and Justice Scalia opined that Mr. Kleven’s rule would require the police to actually see the person throwing bombs out of a car or engaging in some other type of suspicious behavior before any stop of the car could be initiated.  Mr. Kleven was also given the hypothetical of a tipster saying he saw a girl being tossed in the trunk of a car, but he stood firm that before a stop could be initiated, officers needed to observe for themselves some suspicious type of behavior, when the tipster is anonymous. 
Mr. Laurence argued that officers may act on an anonymous report that a person is driving recklessly.  The Justices at first wanted Mr. Laurence to explain what exactly needed to be said by the tipster to justify the stop.  Justice Sotomayor asked Mr. Laurence if the tipster merely said reckless driving, would that qualify or if the tipster said someone was speeding would that qualify.  Mr. Laurence did not give the Justices the specific wording that would be required but stressed that because people have an intimate familiarity with driving they can judge behavior as unsafe driving.  Mr. Laurence also seemed to advocate weighting the seriousness of the offense and threat to public safety when determining the reliability of the tipster.  However, Justice Kagan commented that all crime presents some level of threat to public safety.   
Ms. Kover presented many of the same arguments as Mr. Laurence.  The Justices also tried to force Ms. Kover into a line drawing exercising by deciding what types of driving should warrant a stop by the police based on an anonymous tipster.  Justice Kagan and Justice Sotomayor gave Ms. Kover several hypotheticals, including a driver changing into a lane without a signal or a driver cutting someone off.  Ms. Kover responded that minor traffic infractions would probably not be sufficient but cutting someone off may be closer to the line.  Further, Ms. Kover discussed how cars are judged by different standards as the Court has previously allowed suspicionless stops, such as DUI checkpoints.  Moreover, Ms. Kover dismissed Chief Justice Roberts’ concerns that allowing this stop based solely on an anonymous tip could lead to police stopping cars without reasons and then later claiming to have received a tip. 
The questions posed by the Justices during oral arguments seem to fall into three categories.  One, should the weight given to the tipster and the subsequent stop be permitted depending on the seriousness of the crime or threat to public safety?  Two, what type of action does the anonymous tipster need to report to law enforcement to raise to then allow the stop?  Three, should this case be decided differently than Florida v. J.L. because this case involves automobiles on the road, which can present an inherent safety risk?  In the case Florida v. J.L. the Supreme Court held an anonymous tip identifying a man at a bus stop as having a gun was insufficient to allow officers to stop and frisk the man identified.  While the answers to these questions remain elusive until the opinion comes out, it is clear this case presents another issue of balancing individual’s right to privacy against the public’s safety rights.  Based on the hypotheticals presented by the Justices, practitioners should argue future motions concerning anonymous tips around two premises.  Prosecutors should show how relying on the tip is necessary to protect the public safety because cars present a unique hazard.  Conversely, defense attorneys should focus the attention on how relying on this uncorroborated tip leads to an invasion of one’s reasonable expectation of privacy when driving.      

Rochelle Brunot
Associate Publications Editor, Criminal Law Practitioner

Image by Saddboy (Own work), via Wikimedia Commons.

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