Navarette v. California

Introduction

Standards of proof are quintessential to the American legal system. Perhaps in no area of law is this more apparent than the Fourth Amendment. With the “inestimable” right of personal autonomy at its core,[1] “search and seizure” doctrine is inextricably tied to the standards it invokes.[2] But in Navarette v. California, the U.S. Supreme Courtrevealed how probable cause – once a doctrinal beacon – has become a relic of a bygone era. As the perpetual “tension between liberty and order”[3] crested once again, the Court confirmed that it sees little use for probable cause in contemporary law enforcement. By blessing investigative stops based on the uncorroborated reports of anonymous tipsters, the Court sent the following message to the nation’s law enforcement agencies: probable cause is optional.

Part I of this Casenote provides an overview of Navarette, underscoring the key analysis that elucidates this Casenote’s thesis. Part II briefly reviews the trajectory of Fourth Amendment jurisprudence. Part III scrutinizes Navarette’s logic, namely its preoccupation with forcing what should have been a probable cause case into the far less rigorous reasonable suspicion framework then ignoring the search that followed. Finally, Part IV concludes by asking what, if anything, remains of probable cause post-Navarette.

I. Navarette v. California

Late one August afternoon, California Highway Patrol dispatch received an anonymous call[4] about a truck driving recklessly down Highway 1.[5] Northbound patrol responded quickly – spotting the truck, turning around, and pulling it over within five minutes.[6] As officers approached, the smell of marijuana drew them to the bed of the truck.[7] Sure enough, a search of the bed revealed thirty pounds of marijuana, and the officers arrested Lorenzo and Jose Navarette for transporting marijuana.[8] And after losing a motion to suppress the evidence of the drugs, both men pleaded guilty to the charges.[9]

On appeal, the California Court of Appeal affirmed, finding that the officer had reasonable suspicion, thereby justifying the investigative stop.[10] But when the California Supreme Court denied certiorari, the U.S. Supreme Court chose to weigh in.[11]

Although the Court ultimately affirmed the state appellate court’s ruling, it did so only after declaring that reliable tips about dangerous driving “generally would satisfy a traffic stop on suspicion of drunk driving.”[12] This is true, the Court continued, even if the responding officer cannot confirm the reported behavior.[13]

Writing for an “interesting”[14] 5-4 majority, Justice Thomas first explained that the Court has long rejected the idea that “personal observation” of suspicious activity is a necessary predicate to an investigative stop.[15] To be sure, he did acknowledge that anonymous tips alone are “seldom” sufficient to meet that standard.[16] “But under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”[17] In other words, if an officer can confirm “certain details” that make a tipster reliable, lack of officer corroboration is immaterial.[18] A “bare-bones tip” is not enough.[19] But if the tip manifests a “special familiarity” with the suspect’s activities – providing verifiable, concrete details from which the officer may reasonably suspect ongoing criminal activity – an investigative stop is permitted.[20]

From there, Justice Thomas proceeded to his second point: information verified by the responding officer need not imply illegal activity. Here, the informant’s claim about a specific vehicle running her off the road “necessarily claimed eyewitness knowledge” of criminal activity.[21] To the Court, this fact was crucial. Unlike the “close case” of Alabama v. White, wherein the Court upheld a stop based on an anonymous caller’s accurate description of a cocaine dealer’s vehicle and future delivery route,[22] this tipster’s claim necessarily implied that the informant knew that Navarette was driving recklessly.[23]

To bolster this point, the Court raised the hearsay exception for “excited utterances.”[24] Because the report came so soon after the alleged incident, the Court deemed its contents “especially reliable.”[25] Invoking the logic of this exception, the Court found that the “substantial contemporaneity” of the tip, which was likely reported “under the stress of excitement caused by a startling event,” bolstered the call’s credibility.[26] In fact, simply dialing 9-1-1 enhanced the tip’s veracity.[27] Thanks to regulations banning false reports and preventing callers from concealing their phone numbers, the Court concluded that reasonable police officers are free to assume that a “false tipster” will not dial 9-1-1.[28]

Thirdly, because the stop was only justified if the officer had “reasonable suspicion that ‘criminal activity may be afoot,’”[29] the majority found that a reliable report of prior reckless driving raises sufficient suspicion of drunk driving.[30] Notably, the Court never mentions whether the responding officer actually suspected drunk driving. And yet, Justice Thomas explained that the specific conduct reported bore “too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.”[31]

The Court was equally unmoved by alternative explanations.[32] Reasonable suspicion does not require such theories to be ruled out prior to a stop.[33] Besides, the fact that the officer could not confirm any dangerous behavior was “hardly surprising” to the Court.[34] Maybe Navarette saw the officer and slowed down. Thus, the officer’s failure to verify did not trouble the Court. The reliable report of common drunk driving behavior had already established reasonable suspicion, and a lack of confirmation did nothing to displace it.[35] To the Court, requiring an officer to wait for more dangerous behavior would undermine the public safety interest in stopping suspected drunk drivers.[36]

But the other four justices were less convinced. Authored by Justice Scalia, the dissent warned that police would see one takeaway from the majority opinion: anonymous tips about reckless driving are enough for an investigative stop, so long as the tipster correctly identifies the driver’s location.[37] This, the dissent argued, goes too far.

Noting first the inherently suspect nature of anonymous tips, the dissent questioned the Court’s use of “generally available knowledge” to prove veracity.[38] Because “everyone in the world” who saw the truck knew its make, model, color, and license number, such “eyewitness knowledge” did little to make the tip reliable.[39] Nor did the majority’s excited utterance rationale. Given her ability to stop, take down Navarette’s license number, and dial 9-1-1, the caller had “[p]lenty of time to dissemble or embellish.”[40] Without more evidence to support the tip’s claim, the dissent questioned the call’s probative value, even if it was deemed an excited utterance.[41] The presence of scarcely known 9-1-1 regulations made no difference either.[42]

The call’s dubious nature aside, the dissent found the tenuous link between a “discrete instance” of recklessness and ongoing drunk driving most disconcerting.[43] Justice Scalia rejected the “unsupported assertion” that one act of careless driving warrants suspicion of continued criminal activity.[44]

Finally, argued Justice Scalia, when the responding officer detected no recklessness, the officer’s observations discredited any reasonable suspicion the tip had purportedly raised.[45] “[T]he tip’s suggestion of ongoing drunken driving…not only went uncorroborated; it was affirmatively undermined.”[46] And given the involuntary nature of intoxication’s side effects, the officer’s presence hardly explained Navarette’s suddenly safe driving.[47]

The result of the majority opinion, lamented Justice Scalia, was a “freedom-destroying cocktail consisting of two parts patent falsity.”[48] By ruling (1) that a tip is valid for correctly identifying obvious information and (2) that one unverified act of carelessness is enough to reasonably suspect drunk driving, the Court allowed any malicious 9-1-1 caller to jeopardize our freedom of movement.[49]

II. The Slow Erosion of Probable Cause

Grasping the scope of Navarette requires a sense of the trajectory of Fourth Amendment doctrine. As Justice Thomas noted early on, proving reasonable suspicion requires “considerably less” than proving an offense by a preponderance of the evidence, and “obviously less” than showing probable cause.[50] Requiring only reasonable suspicion for an investigative stop is notable, then, given the Fourth Amendment’s express probable cause requirement.[51] But time has witnessed the slow erosion of this standard for legitimizing searches, and more importantly, the evidentiary fruits they so often bear.[52]

It all began with Terry v. Ohio. There, the Court formally held that a “stop and frisk”[53] requires less than probable cause for its evidentiary proceeds to be admissible.[54] Noting officers’ interest in protection from armed and dangerous suspects, the Court carved out a narrow exception to the Fourth Amendment’s otherwise high standard.[55] To justify these investigative stops, or “Terry stops,”[56] it need only be reasonable under the circumstances.[57] If an officer reasonably suspects that criminal activity is occurring and, upon stopping a suspect, reasonably believes that person poses a threat to his or others’ safety, a pat down is justified.[58] This is true, the Court confirmed, even though such stops involve the seizure of one’s freedom and the search of their person.[59]

What followed was a cadre of cases that chipped away at the initially narrow confines of Terry. In Adams v. Williams, the Court formally sanctified the role of informants.[60] Drawing on Terry’s careful attention to the immediacy required of good police work, the Adams Court determined that a tip with “enough indicia of reliability” – though insufficient for an arrest or search warrant – still justifies an investigative stop.[61] In Adams, such indicium was a known informant’s tip to an officer that the occupant of a nearby car was carrying narcotics and had a gun.[62] After a “protective search” produced a concealed weapon,[63] officers had probable cause to arrest the occupant and conduct the subsequent search that produced the drugs.[64]

Then came United States v. Cortez, whereby officers’ expert analysis was granted increased judicial deference.[65] The Court found that reasonable suspicion weighs “the totality of the circumstances – the whole picture,” which includes the relevant experience and expertise of officers.[66] So when border patrol agents determined that a known immigrant smuggler would probably travel on a certain night, at a certain time, and in a certain type of car, the Court deemed such indicia sufficient to stop any vehicle that fit the bill.[67]

The authority invoked in Navarette merely adopted the logic of Terry and its ilk. In Alabama v. White, an anonymous caller’s report that a woman carrying cocaine was driving a car with a broken tail light between an apartment and a specific motel was enough for an investigative stop.[68] Despite the benignity of the observable details reported, the Court found that the tip showed a “special familiarity” with the woman’s business.[69] Such familiarity, reasoned the Court, allowed officers to reasonably infer that the caller had “access to reliable information about the individual’s illegal activities.”[70]

To be sure, Terry’s scope has its limitations – or at least it did. In Florida v. J.L., the Court rejected investigative stops premised on “bare-boned anonymous tips.”[71] When police stopped an African American teen at a bus stop following a tip that he was illegally carrying a firearm, the Court held that reasonable suspicion had not been met.[72] By failing to give officers a way to test the informant’s credibility or knowledge, the tip lacked the indicia of even a “close case” like White.[73] Permitting a stop without something more, the Court declared, “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.”[74]

III. Making Navarette a Reasonable Suspicion Case

So how is it that a tip about a prior unverified traffic violation entitled police to make an investigative stop for an ongoing offense? Worse yet, what justified the separate and unrelated search of Navarette’s truck bed? The lack of three characteristics in Navarette – at least one of which was present in each Terry-inspired case discussed above – makes these questions difficult to answer. That is, unless one is willing to concede the practical obsolescence of probable cause.

A. Neither the Officer nor Public Safety Were at Risk

In Terry, the Court was chiefly concerned with helping police protect themselves and the public from concealed weapons.[75] The “crux” of Terry was officers’ “immediate interest” in preventing such “unnecessary risks.”[76] Accordingly, the Court recognized a “narrowly drawn authority to permit a reasonable search for weapons” when an officer reasonably suspects that the individual may be “armed and dangerous.”[77]

The absence of suspected weapon possession in Navarette is notable then. Neither the tip nor the subsequent observations of the responding officer triggered Terry’s key concern. Yet the Court relied heavily on Terry jurisprudence to justify the investigative stop and search that followed.[78] To be sure, firearm possession need not be the basis for the stop. While Terry and Adams both involved suspected firearm possession, the stops were predicated on the suspicion that separate crimes were “afoot.”[79] Nor does suspected firearm possession automatically justify such a stop.[80] But the absence of such a threat in Navarette – considering, as we must, “the totality of the circumstances”[81] – makes the case a strange candidate for reasonable suspicion analysis.

Even assuming there were adequate indicia of drunk driving, the subsequent search of the truck bed remains at odds with Terry’s proffered public safety rationale.[82] The mere scent of marijuana as officers approached a truck parked beside an open road,[83] though notable, is hardly enough to trigger a concern about “unnecessary risks” to officer or public safety.[84] And yet, both the majority and the dissent completely ignore this detail, focusing exclusively on the merits of the stop. This seems to leave the scope of these searches relatively undefined.

B. The Tip Did Not Allege an Imminent or Ongoing Crime

The tipster’s failure to allege imminent or ongoing criminal activity makes the analysis in Navarette even more dubious.[85] While the Court has approved Terry stops not involving suspected weapons possession,[86] those instances involved either a tip alleging a crime in progress or an officer observing circumstances justifying that conclusion.[87] But the tipster in Navarette only reported “a single instance of possibly careless or reckless driving.”[88] There was no mention of continued recklessness that might endanger others; no suggestion that the driver might be intoxicated; no reported suspicion that the bed of the truck was loaded with marijuana. Thus, the Court was left with nothing more than a “reasonable suspicion of a discrete instance of irregular or hazardous driving” that had occurred many moments earlier.[89] With no argument alleging the sufficiency of Navarette’s prior conduct,[90] the analysis should have ended there.[91] Instead, the Court resolved itself to fit the square peg of the facts before it into the round hole of Terry logic.[92]

Yet again, the Court’s silence about the truck bed search is perplexing, even assuming the initial legitimacy of the stop. If the officers actually suspected drunk driving, a search of Navarette’s person or the cab of the truck for alcohol might have been reasonable. Such a “limited” search, though still not for weapons, might have satisfied Terry’s call for searches during investigative stops to be “strictly circumscribed by the exigencies which justify its initiation.”[93]

In reality, however, the search lacked even an attenuated relationship to the stop’s justification.[94] The tip did not allege drug possession; nor did the responding officer observe behavior prior to the stop that suggested the truck was transporting narcotics.[95] Even so, the officers apparently searched the truck bed before so much as attempting to corroborate their original suspicions of drunk driving.[96] Surely such a search, even if theoretically “reasonable at its inception,”[97] exceeded its justifiable scope when, without probable cause to make an arrest, the officers abandoned their investigation of drunk driving and began searching the truck bed for drugs.[98]

Of course, one might argue that the smell of marijuana was enough. But that logic is at odds with Terry. Discovering drugs in Navarette’s truck bed was not the product of a search for evidence of drunk driving.[99] It was a separate investigation that was triggered, not by the suspicion that purportedly warranted the stop, but by the subsequent smell of marijuana.[100] Had the drugs been found on Navarette’s person or in the cab in the course of an initially limited search for evidence of drinking, a more expansive search of the bed might have been warranted,[101] and its proceeds accordingly admissible.[102] But that did not happen. Even if the officer’s failure to corroborate the tip’s allegations was insufficient to make the stop unconstitutional,[103] their immediate departure from investigating Navarette’s alleged intoxication should have been enough to invalidate the wholly unrelated search of the truck bed.[104]

C. The Tip Failed to Predict Confirmable Future Behavior

The final factual shortfall was the tipster’s failure to predict Navarette’s future driving behavior. Even the tip in White accomplished that much,[105] and that was a “close case.”[106] Aside from saying where Navarette’s truck could be found, the tipster gave officers little more than an unverifiable complaint about a single instance of allegedly reckless driving.[107] The majority’s conclusory comparisons notwithstanding,[108]Navarette is anything but a close case akin to White.[109]

To the contrary, Navarette creates a standard that even the tip in J.L. would likely satisfy. But unlike the tip in J.L., which alleged a specific, ongoing crime and triggered the safety interest that drove Terry,[110] the tip in Navarette fell short by both measures. What the informant did provide was substantially the same as that provided by the J.L. informant: (1) a conclusory allegation of illegal activity, and (2) the suspect’s location and identifying characteristics.[111]

What remains is a narrow majority’s desperate attempt to legitimize that which the Court unanimously rejected in J.L.[112] “Eyewitness knowledge” cannot be rationally attributed to the conclusory allegations and accurate descriptions of one tipster without granting equal status to the other.[113] Likewise, to deem the Navarette tipster’s call “especially trustwrothy”[114] while ignoring the substantial similarity[115] of the call in J.L. is not only arbitrary, but also opens the door to precisely the same abusive behavior that the Court in J.L. hoped to prevent.[116]

IV. The Practical Nullification of Probable Cause

But the harm done by Navarette is hardly limited to an increased likelihood of abuse by vindictive tipsters. By failing to scrutinize the search that followed the stop, the Court did not simply flout Terry’s primary justification. It effectively abolished the need for probable cause on the ground. Given the relative ease with which Terry stops can now be justified, the Court’s silence on the searches that follow sends the resounding message that reasonable suspicion is all that matters now. No longer is the scope of the search limited by the circumstances that legitimized the stop – protractible only after its fruits give rise to probable cause. To the contrary, the suspicion that justifies one stop, even if unfounded or outright refuted, may be used to launch innumerable searches, no matter how tenuous their relationship.

[1] Terry v. Ohio, 392 U.S. 1, 9 (1968).

[2]See, e.g., Navarette v. California, No. 12-9490, slip op. at 3 (U.S. Apr. 22, 2014); Ornelas v. U.S., 517 U.S. 690, 696 (1996).

[3] Robert B. Harper, Has the Replacement of “Probable Cause” with “Reasonable Suspicion” Resulted in the Creation of the Best of All Possible Worlds?, 22 Akron L. Rev. 13, 14 (1988).

[4] Due to a decision made at the trial court level, the tip was treated as anonymous on appeal. Navarette, No. 12-9490, slip op. at ­­2 n.1.

[5]Navarette, No. 12-9490, slip op. at 1.

[6]Id. at 2.

[7]Id.

[8]Id.

[9]Id.

[10]Id.

[11]Id. at 2-3.

[12]Id. at 9.

[13]Id. at 10.

[14] Jonathan H. Adler, Thomas v. Scalia on Traffic Stops, Volokh Conspiracy (Apr. 22, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/22/thomas-v-scalia-on-traffic-stops/.

[15]Navarette, No. 12-9490, slip op. at 3.

[16]Id. at 4 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).

[17]Id.

[18]Id. at 4.

[19]Id.

[20]Id. at 4-5.

[21]Id. at 5.

[22] 496 U.S. at 332.

[23]Navarette, No. 12-9490, slip op. at 6.

[24]Id. (citing Fed. R. Evid. 803(2)).

[25]Id. at 6.

[26]Id.

[27]Id. at 7.

[28]Id. at 7-8.

[29]Id. at 8 (quoting Terry, 392 U.S. at 30).

[30]Id. at 8.

[31]Id. at 9.

[32]Id. at 10.

[33]Id.

[34]Id.

[35]Id.

[36]Id.

[37]Navarette,No. 12-9490, slip op. at 1 (Scalia, J., dissenting).

[38]Id. at 3.

[39]Id.

[40]Id. at 4.

[41]Id. at 5.

[42]Id. at 5-6.

[43]Id. at 7.

[44]Id.

[45]Id. at 8.

[46]Id. at 8-9.

[47]Id. at 9.

[48]Id. at 10.

[49]Id.

[50]Navarette, No. 12-9490, slip op. at 3 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

[51]U.S. Const., amend. IV.

[52]Terry, 392 U.S. at 12 (“[T]he issue is not the abstract propriety of the police conduct, but the admissibility…of the evidence uncovered by the search and seizure.”).

[53]This term is police vernacular for an “on-the-street” stop, interrogation, and weapons pat down. Id. at 12.

[54]Id. at 30.

[55]Id. at 27-28.

[56]See, e.g., Navarette, No. 12-9490, slip op. at 10 (Scalia, J., dissenting).

[57]Terry, 392 U.S. at 20-21.

[58]Id. at 27.

[59]Id.

[60]407 U.S. 143, 146-47 (1972).

[61]Id.

[62]Id. at 144-45.

[63]Id. at 146.

[64]Id. at 149.

[65]449 U.S. 411, 421-22 (1981).

[66]Id. at 417-19.

[67]Id. at 420-21.

[68] 496 U.S. at 327.

[69]Id. at 332.

[70]Id.

[71]529 U.S. 266, 269 (2000).

[72]Id. at 271.

[73]Id.

[74]Id. at 272.

[75]See 392 U.S. at 27-28.

[76]Terry, 392 U.S. at 23.

[77]Id. at 27.

[78]Navarette, No. 12-9490, slip op. at 3.

[79]Terry, 392 U.S. at 30; Adams, 407 U.S. at 146-47.

[80]See J.L., 529 U.S. at 271.

[81]Cortez, 449 U.S. at 417.

[82]See Terry, 392 U.S. at 23.

[83]The Court generally states that the officers “smelled marijuana” but does not mention justification for searching the truck bed. See Navarette, No. 12-9490, slip op. at 2.

[84]See id.; Terry, 392 U.S. at 23.

[85]See Navarette, No. 12-9490, slip op. at 1.

[86]See, e.g., Cortez, 449 U.S. at 420-21; White, 496 U.S. at 327.

[87]Id.

[88]Navarette, No. 12-9490, slip op. at 1 (Scalia, J., dissenting).

[89]Id. at 7.

[90]Id. at 7 n.3.

[91]See id. at 7.

[92]See id. at 7.

[93]See Terry, 392 U.S. at 25-26.

[94]See Navarette, No. 12-9490, slip op. at 9-10.

[95]See id. at 1-2.

[96]See id.

[97]See Terry, 392 U.S. at 17-18.

[98]See id. at 25-26.

[99]See Navarette, No. 12-9490, slip op. at 1-2.

[100]See id.

[101]See Adams, 407 U.S. at 148-149.

[102]See Terry, 392 U.S. at 13.

[103]Navarette, at 9-10.

[104]Cf.Navarette, No. 12-9490, slip op. at 8-10 (Scalia, J., dissenting).

[105]496 U.S. at 327.

[106]Id. at 332.

[107]See Navarette, No. 12-9490, slip op. at 1-2; Navarette, No. 12-9490, slip op. at 1 (Scalia, J., dissenting).

[108]Navarette, No. 12-9490, slip op. at 10-11 (“Like White, this is a ‘close case.’”).

[109]See Navarette, No. 12-9490, slip op. at 3 (Scalia, J., dissenting).

[110]See 529 U.S. at 271.

[111]Compare id. with Navarette, No. 12-9490, slip op. at 5-6.

[112]See J.L., 529 U.S. at 267.

[113]CompareNavarette, No. 12-9490, slip op. at 5, with J.L., 529 U.S. at 268; see also Navarette, No. 12-9490, slip op. at 3 (Scalia, J., dissenting).

[114]Navarette, No. 12-9490, slip op. at 6.

[115]Both calls were made to the police in close temporal proximity to the crimes allegedly witnessed. Compare Navarette, No. 12-9490, slip op. at 1-2, with J.L., 529 U.S. at 268.

[116]See 529 U.S. at 272.