Emily Johnson-Liu
The trouble with people who phone in tips to the police without leaving a name is that the information they provide may be suspect. Because they remain anonymous, they are largely unaccountable for the claims they make. So as a general rule, an anonymous tip to police will not by itself be enough for an officer to stop a citizen who is going about his or her business. But in Navarette v. California, the United States Supreme Court ruled on a set of facts that would be enough: when a person calls into 911 and describes particular and then-occurring (or very recent) driving suggesting DWI.1 The court did not create a per se exception for anonymous tips reporting DWI; each tip must be analyzed on a case-by-case basis. But if the report is of the right kind of driving and the caller relates it in the right way, the tip will be sufficient to justify a stop for DWI.
The particular facts in Navarette
California Highway Patrol Officers were alerted around 3:45 one afternoon after a woman called 911 to report that a pickup truck had run her off the road.2 The caller relayed the truck’s color, make, model, and license plate number and her location, which was a two-lane undivided highway in northern California near a particular mile marker. She reported that she had last seen the truck about five minutes earlier. The officers found the truck in a location consistent with the woman’s tip, and although they observed no erratic driving for themselves, they pulled the truck over and ultimately found 30 pounds of marijuana. Both the driver and passenger were charged with the drug offense, and in court, they argued that the woman’s anonymous tip did not give the officers reasonable suspicion to pull them over.
The case made its way to the Supreme Court, which considered two questions: whether the tip itself could be considered reliable and, if so, whether the content of the tip was sufficient to justify stopping a citizen. By a 5–4 vote, the court held that the 911 caller’s tip was enough to give the officers reasonable suspicion to believe Navarette was driving while intoxicated.
Analyzing the tip’s reliability
The majority opinion by Justice Thomas followed precedent in assessing the tip’s reliability by considering the informant’s basis of knowledge and veracity. Points scored in one column (such as her basis of knowledge) could make up for a lack of points in another (such as veracity). The majority also detailed the facts of two other anonymous tip cases: Alabama v. White3 and Florida v. J.L.4 In J.L., where the tip was found not to be reliable, the anonymous tipster reported that a young black male in a plaid shirt standing at a particular bus stop was carrying a gun—but the gun was not visible. In J.L.’s column for basis of knowledge, the tip gave no indication of how the tipster knew the teen would be carrying a gun, and in the column for veracity, the tipster’s information provided very little means to test the tipster’s knowledge or credibility because anyone observing the teens at the bus stop could provide a description of what one of them was wearing.5
The tip in White, on the other hand, was held reliable, although the decision was a close one.6 The tipster reported that a woman in a Plymouth station wagon with a broken tail light would be driving from a particular apartment to a particular motel and would be transporting cocaine. Officers corroborated the tipster’s prediction of the woman’s route, which the court found gave the tip added veracity and demonstrated a special familiarity with the driver’s affairs. This, in turn, suggested the informant had access to reliable information about the driver’s illegal activities.7
The majority in Navarette acknowledged that the facts before it also made the case a close one. But the court ultimately found factors suggesting the tip had both a firm basis of knowledge and credibility. The caller’s ability to specifically describe the vehicle and her allegation that the driver had run her off the road necessarily meant she was claiming to be an eyewitness, which gave significant support to the tip.8
A lot may depend on the particular wording of the tip. For instance, the tip “there is a drunk driver on Main Street heading east toward the railroad tracks” may not be deemed as reliable as the tip “I just saw a really drunk driver on Main Street heading east toward the railroad tracks.” The second tip would likely get good marks in the column for basis of knowledge (although the conclusory allegation of drunk driving may arguably not rise to the level of reasonable suspicion for a stop). As a result, it will be helpful for prosecutors to elicit the particular words that the caller used.
The court also found that the tip in Navarette scored points for veracity. One of these points came solely because the informant dialed 911. The court found the 911 emergency system’s ability to trace calls provides some assurance against false reports, even without any proof that the caller knew she could be identified.9 Consequently, all unnamed 911 callers will have an edge in terms of reliability over other anonymous tips.
The fact that the tip claimed to be reporting recently occurring activity also enhanced its reliability. The court likened the tip to a present sense impression or excited utterance, reasoning that because those exceptions to the hearsay rule are generally considered to have enhanced reliability in evidence law, they should have enhanced reliability in this context, too.10
As a result, future anonymous 911 calls that suggest they are coming from an eyewitness and that fall within a hearsay exception for a present sense impression or an excited utterance are likely to be found reliable. Of course, none of this analysis is necessary where the 911 caller can be identified, which, as it happened, may have been the case in Navarette.11
Not every 911 call will justify a stop
After finding that the tip was reliable, the majority went on to consider whether the tip justified a Terry stop. Importantly, the majority upheld the officer’s actions as a stop to investigate an ongoing DWI, not to investigate a completed traffic violation such as failure to maintain a single lane. The court stated that a report of someone driving without a seat belt or speeding slightly over the limit would not justify a stop.12 Of course, if an officer personally observed the seat belt violation or speeding, he would be entirely justified in pulling the vehicle over, because personal observation gives the officer probable cause for a stop. But a stop based on an unconfirmed report of a completed traffic offense would be “constitutionally suspect.”13 Consequently, a caller complaining of a particular car cutting him off in traffic will not justify a stop.
Prosecutors sometimes argue that reasonable suspicion justifies a Terry stop for past, present, and future crimes of all degrees of offenses, including traffic offenses. But Navarette reflects continuing uncertainty about Terry stops for already completed minor offenses.14 And this potential issue is not just limited to anonymous tips. An officer’s own observations may give rise to reasonable suspicion, but not probable cause, of a past minor offense. But whether he may still perform a Terry stop to investigate that past minor offense is not certain. Despite language in Supreme Court decisions that officers can perform a Terry stop when the officer has reasonable suspicion that the person “has been, is, or is about to be engaged in criminal activity,”15 it is still an open question whether officers who lack probable cause can stop citizens to investigate past minor offenses.16
Because the stop in Navarette involved not just a report of a one-time traffic offense that occurred in the past but also a report of an ongoing DWI, the court did not have to reach the potentially trickier issue. The court concluded that running someone off the road would generally provide reasonable suspicion for DWI. Still more useful, the court suggested other driving facts that would provide reasonable suspicion for DWI. These include:
• weaving all over the roadway,
• crossing over the centerline and almost causing a head-on crash,
• driving all over the road and weaving back and forth, and
• driving in the median.
But there may be more. By citing to a study by the National Highway Traffic Safety Administration (NHTSA) called “The Visual Detection of DWI Motorists” to support its analysis that running another vehicle off the road was a significant indicator of drunk driving, the Supreme Court almost implicitly gave its stamp of approval to the findings in the study.17 Consequently, in any case challenging a Terry stop for DWI, prosecutors would do well to compare the driving behavior in their case with the list of driving characteristics that NHTSA found to correlate with DWI.
Five minutes of good driving in an officer’s presence
In one final issue, the court addressed Navarette’s complaint that after learning of the 911 tip and catching up to him, officers observed his exemplary driving for up to five minutes without seeing any additional suspicious conduct. The court stated that while “extended observation” of unremarkable driving might eventually erode reasonable suspicion of DWI, the five-minute period in Navarette did not do so, particularly since “the appearance of a marked police car would inspire more careful driving for a time.”18
So while Navarette sets out another way anonymous tips may be reliable—particularly for unidentified, excited 911 callers who can spell out what they saw—it also provides other hidden gems for DWI prosecutors, too. But DWI prosecutors should take pains to identify and find 911 callers so that these anonymous tipsters turn into credible, sympathetic, citizen eyewitnesses. They will never even have to testify in court because such cases will quickly plead out.
Endnotes
1 Navarette v. California, 134 S. Ct. 1683 (2014).
2 Id. at 1687.
3 496 U.S. 325 (1990).
4 529 U.S. 266 (2000).
5 Id. at 271-72.
6 496 U.S. at 325.
7 Id. at 331-32.
8 134 S. Ct. at 1689.
9 Id. at 1689-90.
10 Id. at 1689.
11 The caller in Navarette likely identified herself by name, but no court determined whether this was sufficient to make the call no longer anonymous. Because the prosecutor and California appellate court treated the case as involving an anonymous tip, the Supreme Court also assumed the tip was anonymous. Id. at 1687-88 & n.1.
12 Id. at 1691.
13 Id.
14 The Supreme Court has permitted Terry stops to investigate past felonies. United States v. Hensley, 469 U.S. 221, 229 (1985) (upholding a Terry stop where the person was wanted for a felony offense). But Hensley left open whether Terry stops were permissible to investigate lesser crimes that were not ongoing or likely to occur in the future.
15 See United States v. Place, 462 U.S. 696, 702 (1983).
16 See 134 S. Ct. at 1690 n.2.
17 You may already be familiar with this document because it has been available through a link on Warren Diepraam’s online article “Field Sobriety Test Review” on the DWI Resources Tab on TDCAA’s website. The NHTSA study can be accessed directly at http://nhtsa.gov/staticfiles/nti/ pdf/808677.pdf.
18 134 S. Ct. at 1691.