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SCOTUS erodes Fourth Amendment by giving too much credence to 911 callers

Apr 25, 2014 SCOTUS erodes Fourth Amendment by giving too much credence to 911 callers

No matter how non-plussed, at best, that I am overall about President Obama, his two Republican opponents doubtlessly would have placed much bigger threats on the federal bench than Obama would ever nominate.

On April22, 2014, the dangers of Ronald Reagan’s, George Bush I’s and George Bush II’s Supreme Court nominations reared their Fourth Amendment-damaging heads in a decision allowing police to give exclusive reliance on 911 callers to justify traffic stops, this one leading to a marijuana felony bust. Prado Navarette v. California, ___ U.S. ___ (April22, 2014). Prado Navarette applies not only to traffic stops, but to all civilian reports to the police. I regret that I did not have Prado Navarette on my radar screen to see about working on an amicus brief in the case.

In Prado Navarette, a police officer stopped a vehicle for no other reason than a 911 call claiming that the vehicle had run the caller off the road and describing the vehicle. That was the sole basis of the stop, with no details on how the vehicle allegedly caused the caller to run off the road (was the vehicle’s driver swerving, speeding, or just looking menacing?), what the caller meant by having been run off the road (did the caller’ vehicle temporarily go into the shoulder, or go down an embankment?), the extent to which the caller was motivated by racism or racial profiling, the extent to which the caller was or was not credible (and did the caller have prior convictions related to veracity?), and the extent to which the caller was sober or not, experienced driving, distracted by texting, or a whole host of other circumstances potentially bringing the caller’s reliability into question.

When a police officer stops my client’s vehicle on the basis of the officer’s personal observations, I at least get a shot at suppressing the stop by cross examining the officer to obtain further details and possibly to bring into question the officer’s veracity, perception and recall. I cannot, however, cross-examine a 911 caller whose whereabouts I cannot determine, to subpoena him or her to court. Even if I subpoenaed the 911 caller to court, the judge might just say, under Prado Navarette that cross examining the 911 caller will be of no benefit to me.

Here is the lineup of justices in Prado Navarette:

Justice Clarence Thomas (appointed by Bush I) authored the opinion. If a justice is going to pen an opinion this damaging to the Fourth Amendment, let the author at least be one who asked questions at oral argument. Save for many years ago from the bench, the only time Justice Thomas is heard speaking is off the bench, for instance giving lectures at law schools.

– Justice Thomas was joined by Chief Justice Roberts (appointed by Bush II) who is a likable and brilliant man, but is too often on the wrong side of the Bill of Rights, Justice Anthony Kennedy (a Reagan appointee, who is a swing vote in many respects only due to the Court’s rightward shift over the years), Justice Alito (a Bush II appointee), and Justice Breyer (a Clinton appointee who often sides with the government’s regulatory functions).

– Praised be Justice Scalia (a Reagan appointee whom I do not want on the bench, but who sometimes carries the day for Confrontation Clause rights and, here, Fourth Amendment rights) for pulling no punches in his dissent, joined by Justice Ginsburg (a Clinton appointee), Justice Sotomayor (an Obama appointee), and Justice Kagan (an Obama appointee).

My understanding is that Justice Sotomayor is the only justice who has tried criminal cases, albeit as a prosecutor. Had the court majority experienced even a score of traffic stop cases in trial court, I would hope that at least one of them would be whistling a tune on the side of the dissenters, thus turning the dissent into the case’s decisionmakers.

I take little solace that Justice Thomas points out in Prado Navarette that a tip alone ordinarily does not justify a traffic stop, as he proceeds to say that the 911 caller’s report was corroborated by finding the reported vehicle at a place consistent with the 911 call. That is corroboration by fluff, rather than substance.

Also troubling is that Justice Thomas says the stopping officer had reasonable suspicion to believe the vehicle’s driver was driving intoxicated. Erratic driving can be caused by many factors. Sit in moving violation court, and hear the many non-alcohol-related factors that cause people to drive erratically.

How do we undo and dilute the damage of Prado Navarette?  Do not expect to see a Constitutional amendment. If the right justice replaces any of the justices in the Prado Navarette majority, that may be enough to reverse this bad decision, despite stare decisis principles that often lead justices to hesitate before overturning Supreme Court precedents. For state-level prosecutions, criminal defense lawyers can argue the extent to which the state’s law and constitution provide more protection than Prado Navarette. Finally, we must consider judicial appointments when deciding whom to elect as president.

Prado Navarette constitutes a low mark for  the Supreme Court.

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