Volume 9, Number 1 | May 2014

Navarette v. California: The Supreme Court Rules Again on Reasonable Suspicion based on Information from Anonymous Informants

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

On April 22, the Supreme Court decided Navarette v. California,[1] a case involving application of the reasonable suspicion standard.  In the case, California Highway Patrol officers were notified by a dispatcher that a 911 call had been received from a motorist (who did not identify herself) reporting that the motorist had been forced off Highway 1 by a silver Ford 150 pickup truck with a specified license plate number.  Thirteen minutes after receipt of this anonymous call, the information in the report was transmitted by radio to all police units.   Shortly thereafter, two highway patrol units saw the Ford pickup on Highway 1, and the truck was pulled over.  While obtaining identifying information from the driver, the officer who stopped the vehicle detected the odor of marijuana and subsequently found marijuana in the vehicle.  The issue in the case was whether the information provided by the anonymous informant gave the officers reasonable suspicion to stop the truck.

In the landmark case of Terry v. Ohio, the Supreme Court held that the police may briefly detain a person if they have reasonable suspicion to think “criminal activity is afoot.”[2]  The defendant in Navarette argued that the report received from the anonymous motorist was too vague to provide reasonable suspicion to stop the vehicle.  Relying almost exclusively on the authority of a California Supreme Court case, a California Court of Appeal held that the highway patrol officer had reasonable suspicion.  The California court found that it was reasonable to conclude that the reporting motorist had personally observed reckless driving by the defendant, thereby imparting some degree of reliability to the report.  The court also indicated that the detailed information about the identity of the offending vehicle further enhanced the reliability of the report.  And last, the court stressed that the report dealt with behavior that posed substantial risk of danger to the public.[3]

In an opinion written by Justice Thomas and joined by four other Justices, the Supreme Court held that the information provided by the anonymous informant was reliable and established reasonable suspicion to think that Navarette was driving while intoxicated. 

In support of its conclusion that the report was reliable, the Court noted that because the informant indicated that the truck being driven by Navarette had forced her off the road, her information was clearly based on direct, first hand observation.   What’s more, the reliability of the report was buttressed by the fact that it came so quickly after the observation.  The Court made comparisons to the law on hearsay evidence, which typically permits hearsay that is based on “present sense impression.”  Rule 803(1) of the Federal Rules of Evidence describes this kind of evidence as “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”  The reason for this exception to the hearsay rule is that the absence of time between the event being reported and the reporting of the event reduces the likelihood of fabrication because of insufficient time to create a well thought out lie, at least in most instances. 

The Court found additional support for its conclusion that the informant’s report was reliable in another exception to the hearsay rule – the “excited utterances” exception.  Rule 803(2) of the Federal Rules of Evidence describes this kind of evidence as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”  Justice Thomas viewed being run off the road as just such a “startling event.”  The reason for this exception to the hearsay rule is that the excitement that causes the statement is thought to cause the declarant to focus so intently on the event that caused the excitement that it diminishes the likelihood of fabrication and therefore imparts reliability to the statement.

Justice Thomas noted as well that, although the informant in this case did not reveal her name, the veracity of calls made to 911 systems is enhanced for several reasons.  First, the recording of the call increases the chances that a victim of a false report might be able to recognize the voice and thereby subject the caller to a false report charge.  Second, the 911 system permits the police to identify some important information about the caller, such as the caller’s phone number.   And third, while callers may block ordinary recipients from seeing their phone number, 911 systems override this block.  All of these factors reduce the caller’s anonymity to some degree.  As Justice Thomas put it, “a reasonable officer could conclude that a false tipster would think twice before using such a system.”

The Court also concluded that the report provided reasonable suspicion to think the driver of the pickup truck was driving while intoxicated.  Justice Thomas concluded that the report of erratic driving that resulted in forcing another vehicle off the road “bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.  Running another vehicle off the road suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues.”

The Court also discounted the fact that after the police located the pickup truck, they followed it for five minutes and observed no unusual driving.  Justice Thomas indicated that “[i]t is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time.”  Five minutes of flawless driving was deemed an insufficient period of time to dispel the suspicions created by the 911 report.

Justice Scalia wrote a dissenting opinion that was joined by Justices Ginsburg, Sotomayor, and Kagan.  He questioned the reliability of the report on two grounds.  First, in Alabama v. White,[4] the Supreme Court concluded that the police had reasonable suspicion to stop Ms. White based on a report from an anonymous informant that she would leave a specified address at a specified time, get in a particularly described car, and drive in a specified direction.  The Court called this a close case on whether the police possessed reasonable suspicion.  Nevertheless, it concluded that the corroboration by the police of these events provided reason to believe that the informant was reliable.  This, in turn, suggested reason to believe that the informant’s tip that Ms. White was in possession of cocaine was likewise reliable.  However, the only information that the police corroborated in the Navarette case was information that anyone driving down this highway at the time of the report would have known.

He also expressed serious doubts about whether the report was a truly spontaneous, excited utterance since the informant presumably had time after being run off the road to observe the truck’s license plate number, bring her own car to a stop, write down the license plate number, and call 911.  According to Justice Scalia, this gave the caller “[p]lenty of time to dissemble or embellish.”  Nor did he see how the special features of the 911 calling system add credibility to the informant’s report.  “[A]ssuming the Court is right about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the anonymous caller was aware of that fact…. There is no reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable.”[5]

The dissenters also failed to see how the report created reasonable suspicion to think the driver of the pickup truck was intoxicated.  First, the one instance of forcing the informant’s car off the road could have been caused by far too many other reasons to permit an inference that it was the result of drunk driving.  The driver might have been distracted by use of his cell phone, distracted by an argument with a passenger in the car, or motivated by personal hostility to the person forced off the road.  What’s more, the dissenters argued that doubts about whether the driver was intoxicated should have been dispelled by the five-minute observation of no unusual driving.  Justice Scalia found the majority’s explanation about persons driving more carefully upon sight of a police car unconvincing.  He noted that “[w]hether a drunk driver drives drunkenly, the Court seems to think, is up to him.  That is not how I understand the influence of alcohol.”

The bottom line is that Navarette is clearly a decision that is very favorable to the police.  The only case in the last twenty years or so where the Court found that reasonable suspicion did not exist was Florida v. J.L.[6]  In that case, the police had received an anonymous tip that a young black male wearing a plaid shirt was standing at a bus stop and carrying a gun.  The Court held that this report did not provide reasonable suspicion to frisk the young black male the police found at the bus stop (wearing a plaid shirt) because the call “provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility.”  Of course, there was no predictive information in Navarette either, and the only information used to test the knowledge and credibility of the report in this case was information that anyone driving on Highway 1 at the time of the report could have known.  It appears that the majority in Navarette substituted the principles of spontaneity and excitement, as derived from exceptions to the hearsay rule, for predictive information. 

Does that mean that if the caller in J.L. had reported that he had just seen the young black male at the bus stop waving a handgun around that the call would have provided reasonable suspicion to frisk (because this would have been at least a spontaneous, if not excited, report)?  One could certainly draw that conclusion.  Justice Scalia stated the rule established by the Court’s opinion in Navarette this way:  “So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop.”  That comes very close indeed to the kind of report that the Court found insufficient in J.L.

There is one other, somewhat tangential issue that comes up in this case.  In my classes, I have always taught that the Terry case permits the police to stop briefly anyone they have reasonable suspicion to think has committed, is committing, or is about to commit a crime.  However, the Court’s opinion in Navarette indicated that the 911 call had to create “reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness.”  In support of this statement, the Court cited U.S. v. Cortez,[7] which held that “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”

The case typically cited to support the statement that the police may stop someone on reasonable suspicion to think the person has committed a crime is U.S. v. Hensley.[8]  In that case, a police officer in one city stopped a suspect based on a “wanted flyer” that had been circulated by the police in a neighboring city.  Because the Court appeared to approve of this stop on the basis that the officer making the stop had reasonable suspicion to think the car contained a person who had committed a crime, the Hensley case seems to support the notion that the police can indeed stop someone on reasonable suspicion of past criminal activity.  However, in Hensley the Court said this:

Despite these differences [between past criminal activity and ongoing or imminent criminal activity], where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes.

We need not and do not decide today whether Terry stops to investigate all past crimes, however serious, are permitted. It is enough to say that, if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion. The automatic barrier to such stops erected by the Court of Appeals accordingly cannot stand.

In a footnote in Navarette, Justice Thomas indicates that “[b]ecause we conclude that the 911 call created reasonable suspicion of an ongoing crime, we need not address under what circumstances a stop is justified by the need to investigate complete criminal activity.”  Justice Scalia makes a similar statement in a footnote, indicating that “[t]he circumstances that may justify a stop under Terry …. to investigate past criminal activity are far from clear [citing Hensley] and have not been discussed in this litigation.”  Thus, it seems fair to conclude that at least a majority of the present Justices (and perhaps all of them) do not support the broad statement that the police may stop all persons they have reasonable suspicion to think have committed a crime.  Rather, the Justices seem to think that this is true for certain crimes (perhaps) and in certain circumstances, but just which crimes and what circumstances remain open questions.  Hopefully, the Court will take a case that will permit it to answer this very important question in the near future.

 

[1] Slip opinion available from the U.S. Supreme Court: http://www.supremecourt.gov/opinions/13pdf/12-9490_3fb4.pdf.

[2] 392 U.S. 1 (1968).

[3] The Supreme Court decided this case in such a manner as to make it unnecessary to address this latter point.

[4] 496 U.S. 325 (1990).

[5] An amicus curiae brief filed by the National Association of Criminal Defense Lawyers raised serious questions about whether 911 systems have as much capability to identify a caller’s geographic location with as much specificity as Justice Thomas’ opinion suggests.  Indeed, Justice Scalia points out since apparently the police were never able to identify the caller in this case or even the county from which the call had been placed.

[6] 529 U.S. 266 (2000)

[7] 449 U.S. 411 (1981).

[8] 469 U.S. 221 (1985).

 


Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.