Virginia v. Harris ( 2009 )

Cite as: 558 U. S. ____ (2009) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
VIRGINIA v. JOSEPH A. MOSES HARRIS, JR.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF VIRGINIA
No. 08–1385. Decided October 20, 2009
The petition for a writ of certiorari is denied.
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
joins, dissenting from denial of certiorari.
Every year, close to 13,000 people die in alcohol-related
car crashes—roughly one death every 40 minutes. See
Dept. of Transp., Nat. Hwy. Traffic Safety Admin., Traffic
Safety Facts, 2007 Traffic Safety Annual Assessment—
Alcohol-Impaired Driving Fatalities 1 (No. 81106, Aug.
2008). Ordinary citizens are well aware of the dangers
posed by drunk driving, and they frequently report such
conduct to the police. A number of States have adopted
programs specifically designed to encourage such tips—
programs such as the “Drunkbusters Hotline” in New
Mexico and the REDDI program (Report Every Drunk
Driver Immediately) in force in several States. See Dept.
of Transp., Nat. Hwy. Traffic Safety Admin., Programs
Across the United States That Aid Motorists in the Re
porting of Impaired Drivers to Law Enforcement (2007).
By a 4-to-3 vote, the Virginia Supreme Court below
adopted a rule that will undermine such efforts to get
drunk drivers off the road. The decision below commands
that police officers following a driver reported to be drunk
do nothing until they see the driver actually do something
unsafe on the road—by which time it may be too late.
Here, a Richmond police officer pulled Joseph Harris
over after receiving an anonymous tip that Harris was
driving while intoxicated. The tip described Harris, his
car, and the direction he was traveling in considerable
detail. The officer did not personally witness Harris vio
2 VIRGINIA v. HARRIS
ROBERTS, C. J., dissenting
late any traffic laws. When Harris was pulled over, how
ever, he reeked of alcohol, his speech was slurred, he
almost fell over in attempting to exit his car, and he failed
the sobriety tests the officer administered on the scene.
Harris was convicted of driving while intoxicated, but the
Virginia Supreme Court overturned the conviction. It
concluded that because the officer had failed to independ
ently verify that Harris was driving dangerously, the stop
violated the Fourth Amendment’s prohibition on unrea
sonable searches and seizures. 276 Va. 689, 696–698, 668
S. E. 2d 141, 146–147 (2008); see Pet. for Cert. 4 (citing
record).
I am not sure that the Fourth Amendment requires such
independent corroboration before the police can act, at
least in the special context of anonymous tips reporting
drunk driving. This is an important question that is not
answered by our past decisions, and that has deeply di
vided federal and state courts. The Court should grant the
petition for certiorari to answer the question and resolve
the conflict.
On the one hand, our cases allow police to conduct in
vestigative stops based on reasonable suspicion, viewed
under the totality of the circumstances. Terry v. Ohio, 392
U. S. 1, 22 (1968); Alabama v. White, 496 U. S. 325, 328–
331 (1990). In Florida v. J. L., 529 U. S. 266, 270 (2000),
however, we explained that anonymous tips, in the ab
sence of additional corroboration, typically lack the “indi
cia of reliability” needed to justify a stop under the rea
sonable suspicion standard. In J. L., the Court suppressed
evidence seized by police after receiving an anonymous tip
alleging that a young man, wearing a plaid shirt and
waiting at a particular bus stop, was carrying a gun. The
majority below relied extensively on J. L. in reversing
Harris’s conviction.
But it is not clear that J. L. applies to anonymous tips
reporting drunk or erratic driving. J. L. itself suggested
Cite as: 558 U. S. ____ (2009) 3
ROBERTS, C. J., dissenting
that the Fourth Amendment analysis might be different in
other situations. The Court declined “to speculate about
the circumstances under which the danger alleged in an
anonymous tip might be so great as to justify a search
even without a showing of reliability.” Id., at 273. It also
hinted that “in quarters where the reasonable expectation
of Fourth Amendment privacy is diminished,” it might be
constitutionally permissible to “conduct protective
searches on the basis of information insufficient to justify
searches elsewhere.” Id., at 274.
There is no question that drunk driving is a serious and
potentially deadly crime, as our cases have repeatedly
emphasized. See, e.g., Michigan Dept. of State Police v.
Sitz, 496 U. S. 444, 451 (1990) (“No one can seriously
dispute the magnitude of the drunken driving problem or
the States’ interest in eradicating it. Media reports of
alcohol-related death and mutilation on the Nation’s roads
are legion”). The imminence of the danger posed by drunk
drivers exceeds that at issue in other types of cases. In a
case like J. L., the police can often observe the subject of a
tip and step in before actual harm occurs; with drunk
driving, such a wait-and-see approach may prove fatal.
Drunk driving is always dangerous, as it is occurring.
This Court has in fact recognized that the dangers posed
by drunk drivers are unique, frequently upholding anti
drunk-driving policies that might be constitutionally
problematic in other, less exigent circumstances.1
——————
1 See, e.g., Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 455
(1990) (approving use of field-sobriety checkpoints of all approaching
drivers, despite fact that over 98 percent of such drivers were innocent);
South Dakota v. Neville, 459 U. S. 553, 554, 560 (1983) (upholding state
law allowing a defendant’s refusal to take a blood-alcohol test to be
introduced as evidence against him at trial); Mackey v. Montrym, 443
U. S. 1, 17–19 (1979) (upholding state law requiring mandatory sus
pension of a driver’s license upon a drunk-driving suspect’s refusal to
submit to a breath-analysis test); see also Indianapolis v. Edmond, 531
U. S. 32, 37–38 (2000) (noting that in the Fourth Amendment context
4 VIRGINIA v. HARRIS
ROBERTS, C. J., dissenting
In the absence of controlling precedent on point, a sharp
disagreement has emerged among federal and state courts
over how to apply the Fourth Amendment in this context.
The majority of courts examining the question have up
held investigative stops of allegedly drunk or erratic driv
ers, even when the police did not personally witness any
traffic violations before conducting the stops.2 These
courts have typically distinguished J. L.’s general rule
based on some combination of (1) the especially grave and
imminent dangers posed by drunk driving; (2) the en
hanced reliability of tips alleging illegal activity in public,
to which the tipster was presumably an eyewitness; (3) the
fact that traffic stops are typically less invasive than
searches or seizures of individuals on foot; and (4) the
diminished expectation of privacy enjoyed by individuals
driving their cars on public roads. A minority of jurisdic
tions, meanwhile, take the same position as the Virginia
Supreme Court, requiring that officers first confirm an
anonymous tip of drunk or erratic driving through their
own independent observation.3 This conflict has been
expressly noted by the lower courts.4
——————
the Court has upheld government measures “aimed at removing drunk
drivers from the road,” distinguishing such measures from those with
the primary purpose of “detect[ing] evidence of ordinary criminal
wrongdoing”).
2 See, e.g., United States v. Wheat, 278 F. 3d 722 (CA8 2001); People v.
Wells, 38 Cal. 4th 1078, 136 P. 3d 810 (2006); State v. Prendergast, 103
Haw. 451, 83 P. 3d 714 (2004); State v. Walshire, 634 N. W. 2d 625(Iowa 2001); State v. Crawford, 275 Kan. 492, 67 P. 3d 115 (2003);
Bloomingdale v. State, 842 A. 2d 1212 (Del. 2004); State v. Golotta, 178
N. J. 205, 837 A. 2d 359 (2003); State v. Scholl, 2004 SD 85, 684 N. W.
2d 83; State v. Boyea, 171 Vt. 401, 765 A. 2d 862 (2000); State v. Rutzin
ski, 2001 WI 22, 241 Wis. 2d 729, 623 N. W. 2d 516.
3 See, e.g., McChesney v. State, 988 P. 2d 1071 (Wyo. 1999); Common
wealth v. Lubiejewski, 49 Mass. App. 212, 729 N. E. 2d 288 (2000);
State v. Sparen, No. CR00258199S, 2001 WL 206078 (Conn. Super. Ct.,
Feb. 9, 2001) (unpublished).
4 See, e.g., Wheat, supra, at 729–730 (reviewing cases upholding stops,
Cite as: 558 U. S. ____ (2009) 5
ROBERTS, C. J., dissenting
The conflict is clear and the stakes are high. The effect
of the rule below will be to grant drunk drivers “one free
swerve” before they can legally be pulled over by police. It
will be difficult for an officer to explain to the family of a
motorist killed by that swerve that the police had a tip
that the driver of the other car was drunk, but that they
were powerless to pull him over, even for a quick check.
Maybe the decision of the Virginia Supreme Court below
was correct, and the Fourth Amendment bars police from
acting on anonymous tips of drunk driving unless they can
verify each tip. If so, then the dangerous consequences of
this rule are unavoidable. But the police should have
every legitimate tool at their disposal for getting drunk
drivers off the road. I would grant certiorari to determine
if this is one of them.
——————
then noting that some courts “have reached a different conclusion”);
Wells, supra, at 1084, 136 P. 3d, at 814 (“split of authority”).