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Defense lawyers fear slippery slope post-decision

By: Kimberly Atkins , Dolan Media Newswires//May 19, 2014

Defense lawyers fear slippery slope post-decision

By: Kimberly Atkins , Dolan Media Newswires//May 19, 2014//

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WASHINGTON — Criminal defense attorneys are expressing concerns about a recent decision from the U.S. Supreme Court holding that a vehicle search based on an anonymous 911 call was constitutional.

The ruling in Prado Navarette v. California, No. 12-9490, weakens the standard for when police can stop and search a vehicle, defense attorneys say.

“This case scares me. It’s a pretty bad precedent,” said Adam R. Banner, an Oklahoma City-based criminal defense attorney. Before the ruling, “police needed some kind of meaningful corroboration,” he said. “They had to do a little investigation. The court is taking that and essentially throwing it out of the window.”

The case began with a call to 911 dispatchers in California by someone claiming to have been run off the road by a driver in a silver Ford 150 pickup truck.  Soon after, a car matching the description and license plate number provided by the caller was spotted by a police officer. The officer pulled the driver over, and he and a second officer who also responded to the dispatcher’s report approached the driver. They smelled marijuana in the cab of the truck. A search revealed 30 pounds of marijuana and the officers arrested both the driver, Lorenzo Prado Navarette, and the passenger, his brother José Prado Navarette.

The brothers moved to suppress the evidence at trial, arguing that the search of the truck violated the Fourth Amendment because the officers lacked reasonable suspicion. The motion was denied and the brothers entered guilty pleas, but retained their right to appeal.

The California Court of Appeal rejected their appeal, holding that the officers had reasonable suspicion because the 911 call came from someone claiming to have witnessed dangerous driving.

‘Totality of the circumstances’

In a 5-4 decision affirming the state court’s ruling, the Supreme Court held that, under the totality of the circumstances, the call established reasonable suspicion to stop the car for suspected drunk driving and conduct a search.

In his opinion for the majority, Justice Clarence Thomas wrote that “the call bore adequate indicia of reliability for the officer to credit the caller’s account.”

“The officer was therefore justified in proceeding from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway,” Justice Thomas wrote.

The evidence of the veracity of the call was also supported by the caller’s use of the 911 system, which is equipped with ways to identify who is calling and can lead to the potential prosecution of anyone calling in a false tip.

Justice Thomas noted that even a reliable tip “will justify an investigative stop only if it creates reasonable suspicion that criminal activity may be afoot.”

“[W]e we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving,” he said.

In a scathing dissent, Justice Antonin Scalia wrote that allowing the police to stop a car based solely on the account on an anonymous caller “is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.”

“The California Highway Patrol in this case knew nothing about the tipster on whose word — and that alone — they seized Lorenzo and José Prado Navarette,” Justice Scalia wrote in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. “They did not know her name. They did not know her phone number or address. … The tipster said the truck had ‘[run her] off the roadway,’ but the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous.”

Mischief making

In arguments and briefings in the case, California as well as a host of states acting as amici stressed the fact that police officers are in the best position to assess the credibility of information received from calls and to determine if it rises to the level of reasonable suspicion. Upholding the search in question, they argued, was consistent with the court’s Fourth Amendment jurisprudence.

But defense attorneys say that the court took a substantial step away from the previous requirement that an anonymous tip must be corroborated by behavior witnessed by the arresting officer which supports the claim of the anonymous caller.

The standard established in Prado Navarette not only leaves open the possibility of searches based on unreliable anonymous reports, but also creates the possibility for mischief: calls made for the express purpose of getting police to search a car where no other grounds for such a search exist.

“There is absolutely a concern,” said Jon Katz, a criminal defense lawyer in Fairfax, Virginia. “What if someone gets into an argument with a roommate and the roommate leaves in his car? The other roommate can call the cops [and] say, ‘I saw him drinking behind the wheel’ even though he didn’t, and the police could stop him and find contraband.”

Before this decision, police were required to witness some behavior, such as erratic driving, themselves. But under Prado Navarette, that is no longer necessary as long as the police deem the caller’s information to be convincing.

Banner said he fears that the approach used by the court could extend to situations other than traffic stops.

“We are getting to the point where we are allowing anonymous tips to substitute for honest investigation,” he said. “That is dangerous.”

Katz said that if he represented a defendant who was subject to a search based on an anonymous call, he would stress that the court did not simply authorize any search based on an anonymous tip, but required reasonable suspicion based on the totality of the circumstances.

“I will be focused on Justice Thomas’ determination that a tip alone does not justify a traffic stop by itself,” Katz said.

Questions or comments can be directed to the writer at: [email protected].

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