In which Justice Scalia temporarily turned my world upside down (but restored order 24 hours later)

I'm always weirded out when I find myself agreeing with Justice Scalia. (Same with George Will, who once in a while doesn't piss me off.) There are just some people whose world views are so diametrically opposed to my own, it doesn't seem possible there could be any overlap. Scalia thinks actual innocence isn't a basis for not executing someone. (Really, he more rejects the idea that innocent people are ever convicted in the first place.) Scalia hints that he thinks the idea of suppressing evidence from unconstitutional searches and seizures has no basis in the 4th Amendment.

So it kinda throws me for a loop when I read a 4th Amendment case in which Scalia writes the opinion I wholeheartedly agree with. Like yesterday, when the majority of the Supreme Court approved a traffic stop, but Scalia joined the three women and even wrote the dissent, pointing out how awful the majority opinion is.

In a nutshell, here's what happened. 911 call was made by someone (a woman, apparently) telling the operator that she was run off the road by another driver. The caller described the truck, including the license plate, and the location. Within about 20 minutes, a state trooper was behind the truck, about the right distance away from where the incident allegedly originally happened. Through the trooper followed the pick-up truck for 5 minutes or so without witnessing any traffic infractions (a feat in and of itself, really), the trooper pulled over the truck. The trooper smelled marijuana (as they tend to) and found a large quantity in the bed of the truck.

Cue the suppression motion. The defense, naturally, argued the stop itself was unjustified, thus rendering all of the evidence subsequently found fruits of the poisonous tree that are inadmissible in court. Now, the most important thing for you to know about a suppression motion is that the defense bears no burden. Instead, the state bears the burden of proving that the stop and/or search did not violate the Constitution. Remember that. The state has to produce evidence, has to convince the court. So say the state wants to argue that the contraband on the defendant's person would have been found anyway because the defendant was arrested pursuant to a valid arrest warrant and upon check-in at the jail, the defendant's possessions would have been logged in. In that case, the prosecuting attorney can't just make that argument. Rather, the prosecutor has to put on evidence at a hearing of the jail's practices of inventorying an arrestee's possessions.

In the context of our case, the state bore the burden of proving that the information the trooper possessed at the time he pulled over the defendant's truck was sufficient to establish reasonable suspicion that a crime had been committed. It's so critical that the trooper himself didn't claim to have seen anything, not a single swerve, a crossing into the shoulder or over the center line, no un-signaled turns or lane changes, no speeding, nothing. The only reason the trooper pulled the truck over was that 911 call.

Now, I don't know about the rest of you, but the times when I have called 911, I have been asked for my name and given it. In other situations, I have come to realize the local police definitely identify my cell phone number with my address, and all with my name. Most of us don't get burner phones, change our numbers all the time, and have phone numbers that aren't connected to our names. Most of us are on the grid because most of us aren't Ron Swanson. Even if I were to call 911 in California, my phone number should show up on the 911 system and would ultimately be traceable back to me, even if I didn't give my name.

In this case, though, the official court position is that the 911 caller's identity is unknown. In defending the stop of the truck, the prosecution never identified the caller. The prosecution didn't call the 911 dispatcher to the stand at the suppression hearing, either, so the 911 phone call wasn't admissible in court. For purposes of this case, then, the caller is anonymous. This matters.

Historically, an anonymous tipster has been viewed in courts with less reliability than an identified accuser. This is true for a number of reasons that all stem from one basis point: an identified accuser can be checked out while an anonymous tipster has no such accountability. If the tipster identifies herself as Emily Starr of New Moon, well then the police can go to New Moon farm and talk to Emily later. They can suss out if Emily has some grudge against the defendant that might make her claims against him less credible. Now, there are valid reasons for a tipster not to identify herself, to feel safer remaining anonymous. But it does present a credibility problem for investigators, so courts have required independent corroboration before an anonymous tipster can justify a stop.

For example, the actual Supreme Court case on a corroborated anonymous tip involved a detailed phone tip wherein the caller identified the car and driver, detailed where the car would be going at a certain time, and said what drugs would be found in the car. At the appointed time, police saw the car as described, driving the described route. The caller's ability to predict future behavior was corroboration.

In this case, we neither had a name of the caller nor any corroboration or prediction of future behavior. It seems possible the prosecution might have had a name for the caller, but the prosecution didn't present that at the suppression hearing. Remember that the prosecution has the burden of proof, so it was up to the prosecution and the prosecution alone to produce the tipster's identity. They chose not to, thus we are stuck in the legal posture of treating the tipster as anonymous. Then there's the responding trooper, who followed the truck for 5 minutes without seeing any traffic violations, so we are stuck in the legal posture of that anonymous tipster's tip being the only justification for the stop.

But a majority of the Supreme Court still found a way to declare this stop was legal. They were wrong and we should all feel a little less free. All for reasons that Scalia ably set forth in his dissenting opinion. The tipster could have been someone with a grudge against the driver. The tipster could have made the entire incident up. The tipster alone shouldn't be enough for any government actor to detain free citizens. Duh. Scalia totally got it while Kennedy and Breyer, justices I'm more used to agreeing with, totally whiffed. I don't quite know what to do with that.

Fortunately for me, the world was restored to its proper order today as Scalia wrote a majority opinion that probably destroyed most criminal defendants' access to real federal court review of their convictions and sentences. Maybe I'm being too pessimistic, but it kinda feels like federal habeas corpus died today.* That's much more what I expect from Scalia.



*If you practice in the world of federal habeas and can talk me down from my Woodall ledge, please feel free.