DUI is different

The Supreme Court denied cert in a case today.  That's not usually something that gets much attention, but in this case, Justice Roberts issued a dissent, which always piques my interest.  He really, really thought the Court should have taken the case, so I wanted to know why.

The case was Virginia v. Harris.  Joseph Harris was convicted of DUI, but the Virginia Supreme Court overturned the conviction finding the initial stop violated Harris' 4th Amendment rights.  Police stopped Harris based solely on an anonymous tip.  The tipster described Harris, his car, and the direction he was traveling.  An officer found the car, but did not personally observe any traffic violations.  With nothing but an anonymous tip to go on, the Virginia Supreme Court said, the cop had no justification for stopping Harris.

This seemed to me like a pretty unremarkable decision.  Nine years ago, the U.S. Supreme Court itself said that an anonymous tip, without any corroboration, couldn't justify stopping a guy on a sidewalk.  Doesn't seem such a stretch to say that if a cop doesn't see any obvious signs of drunk driving, they can't justify stopping a driver based on an anonymous tip.  The Court's original decision was based on sound reasoning.  Anonymous tips can be problematic because they're particularly susceptible to people who just want to make trouble for enemies or exes.  No one is suggesting police aren't free to investigate based on an anonymous tip, but they should get some kind of corroboration of the alleged illegal activity before detaining someone.  I think the Virginia court would have been perfectly fine with an arrest in Harris' case if the cop had just corroborated the tip by seeing a swerve. 

Justice Roberts evidently felt strongly that the Court should have granted cert, presumably with an eye towards approving stops based on nothing more than anonymous tips.  Because, see, as Roberts reminds us at the beginning of his dissent, lots of people die in drunk-driving accidents.  And states encourage people to call in tips to things like "Drunkbusters Hotline."  We need police to have every legitimate tool at their disposal so they can get those damn drunk drivers off the road.  The stakes are just too high.  So, Roberts opines, we might rule differently about anonymous tipsters if we were presented with such a case again, "at least in the special context of anonymous tips reporting drunk driving."

Hmm, I guess I should re-read the Fourth Amendment, because I don't remember the language about the special context of drunk driving.  Hang on.  I'm back.  Just re-read the Fourth and, just as I thought, there is no mention of drunk driving.  No indication at all that the Fourth Amendment rules that apply to all other types of crimes don't apply to drunk driving.  So we won't search or detain people based solely on anonymous tips if the tips are only about guns or murders or rape, because that would violate the Fourth Amendment.  And I guess the stakes aren't that high when guns or death threats are involved.  But we just have to stop those drunk drivers, even if it means ignoring the standards we've set for every other crime. 

Criminal defense lawyers have been saying for years that the Bill of Rights doesn't apply to drunk driving.  I just never expected a justice of the United States Supreme Court to admit it so openly.