Prado Navarette v. California
Prado Navarette v. California
Opinion
*395 After a 911 caller reported that a vehicle had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop. We hold that the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.
I
On August 23, 2008, a Mendocino County 911 dispatch team for the California Highway Patrol (CHP) received a call from another CHP dispatcher in neighboring Humboldt County. The Humboldt County dispatcher relayed a tip from a 911 caller, which the Mendocino County team recorded as follows: " 'Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925.
*1687 Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.' " App. 36a. The Mendocino County team then broadcast that information to CHP officers at 3:47 p.m.
A CHP officer heading northbound toward the reported vehicle responded to the broadcast. At 4:00 p.m., the officer passed the truck near mile marker 69. At about 4:05 p.m., after making a U-turn, he pulled the truck over. A second officer, who had separately responded to the broadcast, also arrived on the scene. As the two officers approached the truck, they smelled marijuana. A search of the truck bed revealed 30 pounds of marijuana. The officers arrested the *396 driver, petitioner Lorenzo Prado Navarette, and the passenger, petitioner José Prado Navarette.
Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment because the officer lacked reasonable suspicion of criminal activity. Both the magistrate who presided over the suppression hearing and the Superior Court disagreed. 1 Petitioners pleaded guilty to transporting marijuana and were sentenced to 90 days in jail plus three years of probation.
The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop.
II
The Fourth Amendment permits brief investigative stops-such as the traffic stop in this case-when a law enforcement officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity."
*397
United States v. Cortez,
*1688 A
These principles apply with full force to investigative stops based on information from anonymous tips. We have firmly rejected the argument "that reasonable cause for a[n investigative stop] can only be based on the officer's personal observation, rather than on information supplied by another person."
Adams v. Williams,
Our decisions in
Alabama v. White,
In
J. L.,
by contrast, we determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun.
B
The initial question in this case is whether the 911 call was sufficiently reliable to credit the allegation that petitioners' truck "ran the [caller] off the roadway." Even assuming for present purposes that the 911 call was anonymous, see n. 1, supra, we conclude 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 *399 that the truck had, in fact, caused the caller's *1689 car to be dangerously diverted from the highway.
By reporting that she had been run off the road by a specific vehicle-a silver Ford F-150 pickup, license plate 8D94925-the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip's reliability. See
Gates,supra,
at 234,
There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck's location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable. In evidence law, we generally
*400
credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because "substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation." Advisory Committee's Notes on Fed. Rule Evid. 803(1), 28 U.S.C.App., p. 371 (describing the rationale for the hearsay exception for "present sense impression[s]"). A similar rationale applies to a "statement relating to a startling event"-such as getting run off the road-"made while the declarant was under the stress of excitement that it caused." Fed. Rule Evid. 803 (2) (hearsay exception for "excited utterances"). Unsurprisingly, 911 calls that would otherwise be inadmissible hearsay have often been admitted on those grounds. See D. Binder, Hearsay Handbook § 8.1, pp. 257-259 (4th ed. 2013-2014) (citing cases admitting 911 calls as present sense impressions);
Another indicator of veracity is the caller's use of the 911 emergency system. See Brief for Respondent 40-41, 44; Brief for United States as
Amicus Curiae
16-18. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity. See
J. L.,
C
Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that "criminal activity may be afoot."
Terry,
Reasonable suspicion depends on " ' "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ' "
Petitioners' attempts to second-guess the officer's reasonable suspicion of drunk driving are unavailing. It is true that the reported behavior might also be explained by, for example, a driver responding to "an unruly child or other distraction." Brief for Petitioners 21. But we have consistently recognized that reasonable suspicion "need not rule out the possibility of innocent conduct."
United States v. Arvizu,
Nor did the absence of additional suspicious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion of drunk driving. Brief for Petitioners 23-24. It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time. Cf.
Arvizu, supra, at 275,
III
Like
White,
this is a "close case."
It is so ordered.
Justice SCALIA, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that "an anonymous and
*405
uncorroborated tip regarding a possibly intoxicated highway driver" provides without more the reasonable suspicion necessary to justify a stop.
People v. Wells,
38 Cal.4th l078, 1082,
Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: 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. This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures. I would reverse the judgment of the Court of Appeal of California.
I
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. They did not know her name. 1 They did not know her phone number or address. They did not even know where she called from (she may have dialed in from a neighboring county, App. 33a-34a).
The tipster said the truck had "[run her] off the roadway,"
The question before us, the Court agrees,
ante,
at 1690 - 1691, is whether the "content of information possessed by police and its degree of reliability,"
White,
The most extreme case, before this one, in which an anonymous tip was found to meet this standard was
White,
The Court says, ante, at 1689, that "[b]y reporting that she had been run off the road by a specific vehicle ... the caller necessarily claimed eyewitness knowledge." So what? The issue is not how she claimed to know, but whether what she claimed to know was true. The claim to "eyewitness knowledge" of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White ) that the petitioners' truck would be heading south on Highway 1 .
The Court finds "reason to think" that the informant "was telling the truth" in the fact that police observation confirmed that the truck had been driving near the spot at which, and at the approximate time at which, the tipster alleged she had been run off the road.
Ante,
at 1689. According to the Court, the statement therefore qualifies as a " 'present sense impression' " or " 'excited utterance,' " kinds of hearsay that the law deems categorically admissible given their low likelihood of reflecting " 'deliberate or conscious misrepresentation.' "
No, we cannot. To begin with, it is questionable whether either the "present
*1694
sense impression" or the "excited utterance" exception to the hearsay rule applies here. The classic "present sense impression" is the recounting of an event that is occurring before the declarant's eyes, as the declarant is speaking ("I am watching the Hindenburg explode!"). See 2 K. Broun, McCormick on Evidence 362 (7th ed. 2013) (hereinafter McCormick). And the classic "excited utterance
*408
" is a statement elicited, almost involuntarily, by the shock of what the declarant is immediately witnessing ("My God, those people will be killed!"). See
Moreover, even assuming that less than true immediacy will suffice for these hearsay exceptions to apply, the tipster's statement would run into additional barriers to admissibility and acceptance. According to the very Advisory Committee's Notes from which the Court quotes, cases addressing an unidentified declarant's present sense impression "indicate hesitancy in upholding the statement alone as sufficient" proof of the reported event. 28 U.S.C.App., at 371; see also 7 M. Graham, Handbook of Federal Evidence 19-20 (7th ed. 2012). For excited utterances as well, the "knotty theoretical" question of statement-alone admissibility persists-seemingly even when the declarant is known. 2 McCormick 368. "Some courts ... have taken the position that an excited utterance is admissible only if other proof is presented which supports a finding of fact that the exciting event did occur. The issue has not yet been resolved under the Federal Rules."
Finally, and least tenably, the Court says that another "indicator of veracity" is the anonymous tipster's mere "use of the 911 emergency system,"
ante,
at 1689. Because, you see, recent "technological and regulatory developments" suggest that the identities of unnamed 911 callers are increasingly less likely to remain unknown.
Ibid
. Indeed, the systems are able to identify "the caller's geographic location with increasing specificity."
*1695 II
All that has been said up to now assumes that the anonymous caller made, at least in effect, an accusation of drunken driving. But in fact she did not. She said that the petitioners' truck " '[r]an [me] off the roadway.' " App. 36a. That neither asserts that the driver was drunk nor even raises the likelihood that the driver was drunk. The most it conveys is that the truck did some apparently nontypical thing that forced the tipster off the roadway, whether partly or *410 fully, temporarily or permanently. Who really knows what (if anything) happened? The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.
But let us assume the worst of the many possibilities: that it was a careless, reckless, or even intentional maneuver that forced the tipster off the road. Lorenzo might have been distracted by his use of a hands-free cell phone, see Strayer, Drews, & Crouch, A Comparison of the Cell Phone Driver and the Drunk Driver, 48 Human Factors 381, 388 (2006), or distracted by an intense sports argument with Jose, see D. Strayer et al., AAA Foundation for Traffic Safety, Measuring Cognitive Distraction in the Automobile 28 (June 2013), online at https://www.aaafoundation.org/sites/default/files/MeasuringCognitive Distractions.pdf as visited Apr. 17, 2014, and available in Clerk of Court's case file). Or, indeed, he might have intentionally forced the tipster off the road because of some personal animus, or hostility to her "Make Love, Not War" bumper sticker. I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving . What proportion of the hundreds of thousands-perhaps millions-of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent. I have no basis for that except my own guesswork. But unless the Court has some basis in reality to believe that the proportion is many orders of magnitude above that-say 1 in 10 or at least 1 in 20-it has no grounds for its unsupported assertion that the tipster's report in this case gave rise to a reasonable suspicion of drunken driving.
Bear in mind that that is the only basis for the stop that has been asserted in this litigation.
3
The stop required suspicion
*411
of an ongoing crime, not merely suspicion of having run someone off the road earlier. And driving while being a careless or reckless person, unlike driving while being a drunk person, is not an ongoing crime. In other words, in order to stop the petitioners the officers here not only had to assume without basis the accuracy of the anonymous accusation but also had to posit an unlikely reason (drunkenness) for the accused behavior.
*1696
In sum, at the moment the police spotted the truck, it was more than merely "
possib[le]
" that the petitioners were not committing an ongoing traffic crime.
United States v. Arvizu,
III
It gets worse. Not only, it turns out, did the police have no good reason
at first
to believe that Lorenzo was driving drunk, they had very good reason
at last
to know that he was not. The Court concludes that the tip, plus confirmation of the truck's location, produced reasonable suspicion that the truck not only had been
but still was
barreling dangerously and drunkenly down Highway 1.
Ante,
at 1690 - 1692. In fact, alas, it was not, and the officers knew it. They followed the truck for five minutes, presumably to see if it was being operated recklessly. And
that
was good police work. While the anonymous tip was not enough to support a stop for drunken driving under
Terry v. Ohio,
A hypothetical variation on the facts of this case illustrates the point. Suppose an anonymous tipster reports that, while following near mile marker 88 a silver Ford F-150, license plate 8D949925, traveling southbound on Highway 1, she saw in the truck's open cab several five-foot-tall stacks of what was unmistakably baled cannabis. Two minutes later, a highway patrolman spots the truck exactly where the tip suggested it would be, begins following it, but sees nothing in the truck's cab. It is not enough to say that the officer's observation merely failed to corroborate the tipster's accusation. It is more precise to say that the officer's observation discredited the informant's accusation: The crime was supposedly occurring (and would continue to occur) in plain view, but the police saw nothing. Similarly, here, the crime supposedly suggested by the tip was ongoing intoxicated driving, the hallmarks of which are many, readily identifiable, and difficult to conceal. That the officers witnessed nary a minor traffic violation nor any other "sound indici [um] of drunk driving," ante, at 1690, strongly suggests that the suspected crime was not occurring after all. The tip's implication *413 of continuing criminality, already weak, grew even weaker.
Resisting this line of reasoning, the Court curiously asserts that, since drunk drivers who see marked squad cars in *1697 their rearview mirrors may evade detection simply by driving "more careful[ly]," the "absence of additional suspicious conduct" is "hardly surprising" and thus largely irrelevant. Ante, at 1691 - 1692. Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant's impairing effects on the body-effects that no mere act of the will can resist. See, e.g., A. Dasgupta, The Science of Drinking: How Alcohol Affects Your Body and Mind 39 (explaining that the physiological effect of a blood alcohol content between 0.08 and 0.109, for example, is "sever[e] impair[ment]" of "[b]alance, speech, hearing, and reaction time," as well as one's general "ability to drive a motor vehicle"). Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again-and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.
* * *
The Court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.
*414 If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation-and on that point his word is as good as his victim's.
Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today's opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.
At the suppression hearing, counsel for petitioners did not dispute that the reporting party identified herself by name in the 911 call recording. Because neither the caller nor the Humboldt County dispatcher who received the call was present at the hearing, however, the prosecution did not introduce the recording into evidence. The prosecution proceeded to treat the tip as anonymous, and the lower courts followed suit. See
Because 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 completed criminal activity. Cf.
United States v. Hensley,
There was some indication below that the tipster was a woman. See App. 18a. Beyond that detail, we must, as the Court notes, ante, at 1687, n. 1, assume that the identity of the tipster was unknown.
The Court's discussion of reliable 911 traceability has so little relevance to the present case that one must surmise it has been included merely to assure officers in the future that anonymous 911 accusations-even untraced ones-are not as suspect (and hence as unreliable) as other anonymous accusations. That is unfortunate.
The circumstances that may justify a stop under
Terry v. Ohio,
Reference
- Full Case Name
- Lorenzo Prado NAVARETTE and José Prado Navarette, Petitioners, v. CALIFORNIA.
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- 1063 cases
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