Prado Navarette v. California , 134 S. Ct. 1683 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PRADO NAVARETTE ET AL. v. CALIFORNIA
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT
No. 12–9490. Argued January 21, 2014—Decided April 22, 2014
A California Highway Patrol officer stopped the pickup truck occupied
by petitioners because it matched the description of a vehicle that a
911 caller had recently reported as having run her off the road. As he
and a second officer approached the truck, they smelled marijuana.
They searched the truck’s bed, found 30 pounds of marijuana, and ar-
rested petitioners. Petitioners moved to suppress the evidence, argu-
ing that the traffic stop violated the Fourth Amendment. Their mo-
tion was denied, and they pleaded guilty to transporting marijuana.
The California Court of Appeal affirmed, concluding that the officer
had reasonable suspicion to conduct an investigative stop.
Held: The traffic stop complied with the Fourth Amendment because,
under the totality of the circumstances, the officer had reasonable
suspicion that the truck’s driver was intoxicated. Pp. 3–11.
(a) The Fourth Amendment permits brief investigative stops when
an officer has “a particularized and objective basis for suspecting the
particular person stopped of . . . criminal activity.” United States v.
Cortez, 449 U.S. 411, 417–418. Reasonable suspicion takes into ac-
count “the totality of the circumstances,” id., at 417, and depends
“upon both the content of information possessed by police and its de-
gree of reliability,” Alabama v. White, 496 U.S. 325, 330. An anony-
mous tip alone seldom demonstrates sufficient reliability, White, 496
U.S., at 329, but may do so under appropriate circumstances, id., at
327. Pp. 3–5.
(b) The 911 call in this case bore adequate indicia of reliability for
the officer to credit the caller’s account. By reporting that she had
been run off the road by a specific vehicle, the caller necessarily
claimed an eyewitness basis of knowledge. The apparently short
time between the reported incident and the 911 call suggests that the
2 PRADO NAVARETTE v. CALIFORNIA
Syllabus
caller had little time to fabricate the report. And a reasonable officer
could conclude that a false tipster would think twice before using the
911 system, which has several technological and regulatory features
that safeguard against making false reports with immunity. Pp. 5–8.
(c) Not only was the tip here reliable, but it also created reasonable
suspicion of drunk driving. Running another car off the road sug-
gests the sort of impairment that characterizes drunk driving. While
that conduct might be explained by another cause such as driver dis-
traction, reasonable suspicion “need not rule out the possibility of in-
nocent conduct.” United States v. Arvizu, 534 U.S. 266, 277. Finally,
the officer’s failure to observe additional suspicious conduct during
the short period that he followed the truck did not dispel the reason-
able suspicion of drunk driving, and the officer was not required to
surveil the truck for a longer period. Pp. 8–10.
Affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a
dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–9490
_________________
LORENZO PRADO NAVARETTE AND JOSE PRADO
NAVARETTE, PETITIONERS v. CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[April 22, 2014]
JUSTICE THOMAS delivered the opinion of the Court.
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 Hum­
boldt 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. Ran the reporting party off the roadway and was
last seen approximately five [minutes] ago.’ ” App. 36a.
The Mendocino County team then broadcast that infor­
mation 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
2 PRADO NAVARETTE v. CALIFORNIA
Opinion of the Court
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 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 sup­
pression 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. 2012 WL 4842651 (Oct. 12, 2012). The
court reasoned that the content of the tip indicated that it
came from an eyewitness victim of reckless driving, and
that the officer’s corroboration of the truck’s description,
location, and direction established that the tip was reliable
enough to justify a traffic stop. Id., at *7. Finally, the
court concluded that the caller reported driving that was
sufficiently dangerous to merit an investigative stop with­
out waiting for the officer to observe additional reckless
driving himself. Id., at *9. The California Supreme Court
——————
1 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 dis­
patcher who received the call was present at the hearing, however, the
prosecution did not introduce the recording into evidence. The prosecu­
tion proceeded to treat the tip as anonymous, and the lower courts
followed suit. See 2012 WL 4842651, *6 (Cal. Ct. App., Oct. 12, 2012).
Cite as: 572 U. S. ____ (2014) 3
Opinion of the Court
denied review. We granted certiorari, 570 U. S. ___
(2013), and now affirm.
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 crim­
inal activity.” United States v. Cortez, 449 U.S. 411, 417–
418 (1981); see also Terry v. Ohio, 392 U.S. 1, 21–22
(1968). The “reasonable suspicion” necessary to justify
such a stop “is dependent upon both the content of infor­
mation possessed by police and its degree of reliability.”
Alabama v. White, 496 U.S. 325, 330 (1990). The stand­
ard takes into account “the totality of the circumstances—
the whole picture.” Cortez, supra, at 417. Although a
mere “ ‘hunch’ ” does not create reasonable suspicion,
Terry, supra, at 27, the level of suspicion the standard
requires is “considerably less than proof of wrongdoing by
a preponderance of the evidence,” and “obviously less”
than is necessary for probable cause, United States v.
Sokolow, 490 U.S. 1, 7 (1989).
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, 407 U.S. 143,
147 (1972). Of course, “an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or verac­
ity.” White, 496 U.S., at 329 (emphasis added). That is
because “ordinary citizens generally do not provide exten­
sive recitations of the basis of their everyday observa­
tions,” and an anonymous tipster’s veracity is “ ‘by hypoth­
4 PRADO NAVARETTE v. CALIFORNIA
Opinion of the Court
esis largely unknown, and unknowable.’ ” Ibid. But under
appropriate circumstances, an anonymous tip can demon­
strate “sufficient indicia of reliability to provide reasona­
ble suspicion to make [an] investigatory stop.” Id., at 327.
Our decisions in Alabama v. White, 496 U.S. 325 (1990),
and Florida v. J. L., 529 U.S. 266 (2000), are useful
guides. In White, an anonymous tipster told the police
that a woman would drive from a particular apartment
building to a particular motel in a brown Plymouth station
wagon with a broken right tail light. The tipster further
asserted that the woman would be transporting cocaine.
496 U.S., at 327. After confirming the innocent details,
officers stopped the station wagon as it neared the motel
and found cocaine in the vehicle. Id., at 331. We held that
the officers’ corroboration of certain details made the
anonymous tip sufficiently reliable to create reasonable
suspicion of criminal activity. By accurately predicting
future behavior, the tipster demonstrated “a special famil­
iarity with respondent’s affairs,” which in turn implied
that the tipster had “access to reliable information about
that individual’s illegal activities.” Id., at 332. We also
recognized that an informant who is proved to tell the
truth about some things is more likely to tell the truth
about other things, “including the claim that the object of
the tip is engaged in criminal activity.” Id., at 331 (citing
Illinois v. Gates, 462 U.S. 213, 244 (1983)).
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. 529 U.S., at 268. The tipster did not explain how he
knew about the gun, nor did he suggest that he had any
special familiarity with the young man’s affairs. Id., at
271. As a result, police had no basis for believing “that the
tipster ha[d] knowledge of concealed criminal activity.”
Id., at 272. Furthermore, the tip included no predictions
of future behavior that could be corroborated to assess the
Cite as: 572 U. S. ____ (2014) 5
Opinion of the Court
tipster’s credibility. Id., at 271. We accordingly concluded
that the tip was insufficiently reliable to justify a stop and
frisk.
B
The initial question in this case is whether the 911 call
was sufficiently reliable to credit the allegation that peti­
tioners’ truck “ran the [caller] off the roadway.” Even
assuming for present purposes that the 911 call was anon­
ymous, 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 that the truck had, in fact,
caused the caller’s 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 (“[An informant’s] explicit and
detailed description of alleged wrongdoing, along with a
statement that the event was observed firsthand, entitles
his tip to greater weight than might otherwise be the
case”); Spinelli v. United States, 393 U.S. 410, 416 (1969)
(a tip of illegal gambling is less reliable when “it is not
alleged that the informant personally observed [the de­
fendant] at work or that he had ever placed a bet with
him”). This is in contrast to J. L., where the tip provided
no basis for concluding that the tipster had actually seen
the gun. 529 U.S., at 271. Even in White, where we
upheld the stop, there was scant evidence that the tipster
had actually observed cocaine in the station wagon. We
called White a “ ‘close case’ ” because “[k]nowledge about a
person’s future movements indicates some familiarity with
that person’s affairs, but having such knowledge does not
6 PRADO NAVARETTE v. CALIFORNIA
Opinion of the Court
necessarily imply that the informant knows, in particular,
whether that person is carrying hidden contraband.” 529
U.S., at 271. A driver’s claim that another vehicle ran her
off the road, however, necessarily implies that the inform­
ant knows the other car was driven dangerously.
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 contemporane­
ous report has long been treated as especially reliable. In
evidence law, we generally 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 likeli­
hood of deliberate or conscious misrepresentation.” Advi­
sory 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);
id., §9.1, at 274–275 (911 calls admitted as excited utter­
ances). There was no indication that the tip in J. L. (or
even in White) was contemporaneous with the observation
of criminal activity or made under the stress of excitement
caused by a startling event, but those considerations
weigh in favor of the caller’s veracity here.
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
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 trac­
ing callers, and thus provide some safeguards against
making false reports with immunity. See J. L., supra, at
276 (KENNEDY, J., concurring). As this case illustrates,
see n. 1, supra, 911 calls can be recorded, which provides
victims with an opportunity to identify the false tipster’s
voice and subject him to prosecution, see, e.g., Cal. Penal
Code Ann. §653x (West 2010) (makes “telephon[ing] the
911 emergency line with the intent to annoy or harass”
punishable by imprisonment and fine); see also §148.3
(2014 West Cum. Supp.) (prohibits falsely reporting “that
an ‘emergency’ exists”); §148.5 (prohibits falsely reporting
“that a felony or misdemeanor has been committed”). The
911 system also permits law enforcement to verify im­
portant information about the caller. In 1998, the Federal
Communications Commission (FCC) began to require
cellular carriers to relay the caller’s phone number to 911
dispatchers. 47 CFR §20.18(d)(1) (2013) (FCC’s “Phase I
enhanced 911 services” requirements). Beginning in 2001,
carriers have been required to identify the caller’s geo­
graphic location with increasing specificity. §§20.18(e)–(h)
(“Phase II enhanced 911 service” requirements). And
although callers may ordinarily block call recipients from
obtaining their identifying information, FCC regulations
exempt 911 calls from that privilege. §§64.1601(b),
(d)(4)(ii) (“911 emergency services” exemption from rule
that, when a caller so requests, “a carrier may not reveal
that caller’s number or name”). None of this is to suggest
that tips in 911 calls are per se reliable. Given the forego­
ing technological and regulatory developments, however, a
reasonable officer could conclude that a false tipster would
think twice before using such a system. The caller’s use of
the 911 system is therefore one of the relevant circum­
8 PRADO NAVARETTE v. CALIFORNIA
Opinion of the Court
stances that, taken together, justified the officer’s reliance
on the information reported in the 911 call.
C
Even a reliable tip will justify an investigative stop only
if it creates reasonable suspicion that “criminal activity
may be afoot.” Terry, 392 U.S., at 30. We must therefore
determine whether the 911 caller’s report of being run off
the roadway created reasonable suspicion of an ongoing
crime such as drunk driving as opposed to an isolated
episode of past recklessness. See Cortez, 449 U.S., at 417
(“An investigatory stop must be justified by some objective
manifestation that the person stopped is, or is about to be,
engaged in criminal activity”). We conclude that the
behavior alleged by the 911 caller, “viewed from the
standpoint of an objectively reasonable police officer,
amount[s] to reasonable suspicion” of drunk driving.
Ornelas v. United States, 517 U.S. 690, 696 (1996). The
stop was therefore proper.2
Reasonable suspicion depends on “ ‘ “the factual and
practical considerations of everyday life on which reason-
able and prudent men, not legal technicians, act.” ’ ” Id., at
695. Under that commonsense approach, we can appro­
priately recognize certain driving behaviors as sound
indicia of drunk driving. See, e.g., People v. Wells,
38 Cal. 4th 1078, 1081, 136 P.3d 810, 811 (2006) (“ ‘weav­
ing all over the roadway’ ”); State v. Prendergast, 103 Haw.
451, 452–453, 83 P.3d 714, 715–716 (2004) (“cross[ing]
over the center line” on a highway and “almost caus[ing]
several head-on collisions”); State v. Golotta, 178 N. J.
205, 209, 837 A.2d 359, 361 (2003) (driving “ ‘all over
the road’ ” and “ ‘weaving back and forth’ ”); State v.
——————
2 Becausewe 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, 469 U.S. 221, 229 (1985).
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
Walshire, 634 N.W.2d 625, 626 (Iowa 2001) (“driving in
the median”). Indeed, the accumulated experience of
thousands of officers suggests that these sorts of erratic
behaviors are strongly correlated with drunk driving.
See Nat. Highway Traffic Safety Admin., The Visual
Detection of DWI Motorists 4–5 (Mar. 2010), online at
http://nhtsa.gov/staticfiles/nti/pdf/808677.pdf (as visited
Apr. 18, 2014, and available in Clerk of Court’s case file).
Of course, not all traffic infractions imply intoxication.
Unconfirmed reports of driving without a seatbelt or
slightly over the speed limit, for example, are so tenuously
connected to drunk driving that a stop on those grounds
alone would be constitutionally suspect. But a reliable tip
alleging the dangerous behaviors discussed above gener-
ally would justify a traffic stop on suspicion of drunk
driving.
The 911 caller in this case reported more than a minor
traffic infraction and more than a conclusory allegation of
drunk or reckless driving. Instead, she alleged a specific
and dangerous result of the driver’s conduct: running
another car off the highway. That conduct bears too great
a resemblance to paradigmatic manifestations of drunk
driving to be dismissed as an isolated example of reckless­
ness. Running another vehicle off the road suggests lane­
positioning problems, decreased vigilance, impaired judg­
ment, or some combination of those recognized drunk
driving cues. See Visual Detection of DWI Motorists 4–5.
And the experience of many officers suggests that a driver
who almost strikes a vehicle or another object—the exact
scenario that ordinarily causes “running [another vehicle]
off the roadway”—is likely intoxicated. See id., at 5, 8.
As a result, we cannot say that the officer acted unreason­
ably under these circumstances in stopping a driver
whose alleged conduct was a significant indicator of drunk
driving.
Petitioners’ attempts to second-guess the officer’s rea­
10 PRADO NAVARETTE v. CALIFORNIA
Opinion of the Court
sonable 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, 534 U.S. 266, 277 (2002).
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 Petition­
ers 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 (“ ‘[s]lowing down after
spotting a law enforcement vehicle’ ” does not dispel rea­
sonable suspicion of criminal activity). Extended observa­
tion of an allegedly drunk driver might eventually dispel a
reasonable suspicion of intoxication, but the 5-minute
period in this case hardly sufficed in that regard. Of
course, an officer who already has such a reasonable sus­
picion need not surveil a vehicle at length in order to
personally observe suspicious driving. See Adams v.
Williams, 407 U.S., at 147 (repudiating the argument
that “reasonable cause for a[n investigative stop] can only
be based on the officer’s personal observation”). Once
reasonable suspicion of drunk driving arises, “[t]he rea­
sonableness of the officer’s decision to stop a suspect does
not turn on the availability of less intrusive investigatory
techniques.” Sokolow, 490 U.S., at 11. This would be a
particularly inappropriate context to depart from that
settled rule, because allowing a drunk driver a second
chance for dangerous conduct could have disastrous
consequences.
III
Like White, this is a “close case.” 496 U.S., at 332. As
in that case, the indicia of the 911 caller’s reliability here
Cite as: 572 U. S. ____ (2014) 11
Opinion of the Court
are stronger than those in J. L., where we held that a
bare-bones tip was unreliable. 529 U.S., at 271. Alt­
hough the indicia present here are different from those we
found sufficient in White, there is more than one way to
demonstrate “a particularized and objective basis for
suspecting the particular person stopped of criminal activ­
ity.” Cortez, 449 U.S., at 417–418. Under the totality of
the circumstances, we find the indicia of reliability in this
case sufficient to provide the officer with reasonable suspi­
cion that the driver of the reported vehicle had run another
vehicle off the road. That made it reasonable under the
circumstances for the officer to execute a traffic stop. We
accordingly affirm.
It is so ordered.
Cite as: 572 U. S. ____ (2014) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–9490
_________________
LORENZO PRADO NAVARETTE AND JOSE PRADO
NAVARETTE, PETITIONERS v. CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[April 22, 2014]
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 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, 136 P.3d 810, 812, (2006). See also,
e.g., United States v. Wheat, 278 F.3d 722, 729–730 (CA8
2001); State v. Walshire, 634 N.W.2d 625, 626–627, 630
(Iowa 2001). Today’s opinion does not explicitly adopt
such a departure from our normal Fourth Amendment
requirement that anonymous tips must be corroborated; it
purports to adhere to our prior cases, such as Florida v.
J. L., 529 U.S. 266 (2000), and Alabama v. White, 496
U.S. 325 (1990). Be not deceived.
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
2 PRADO NAVARETTE v. CALIFORNIA
SCALIA, J., dissenting
the Court of Appeal of California.
I
The California Highway Patrol in this case knew noth­
ing 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 num­
ber 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 road­
way,” id., at 36a, but the police had no reason to credit
that charge and many reasons to doubt it, beginning with
the peculiar fact that the accusation was anonymous.
“[E]liminating accountability . . . is ordinarily the very
purpose of anonymity.” McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 385 (1995) (SCALIA, J., dissenting).
The unnamed tipster “can lie with impunity,” J. L., supra,
at 275 (KENNEDY, J., concurring). Anonymity is especially
suspicious with respect to the call that is the subject of the
present case. When does a victim complain to the police
about an arguably criminal act (running the victim off the
road) without giving his identity, so that he can accuse
and testify when the culprit is caught?
The question before us, the Court agrees, ante, at 8, is
whether the “content of information possessed by police
and its degree of reliability,” White, 496 U.S., at 330, gave
the officers reasonable suspicion that the driver of the
truck (Lorenzo) was committing an ongoing crime. When
the only source of the government’s information is an
informant’s tip, we ask whether the tip bears sufficient
“ ‘indicia of reliability,’ ” id., at 328, to establish “a particu­
larized and objective basis for suspecting the particular
——————
1 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 2,
n. 1, assume that the identity of the tipster was unknown.
Cite as: 572 U. S. ____ (2014) 3
SCALIA, J., dissenting
person stopped of criminal activity,” United States v.
Cortez, 449 U.S. 411, 417–418 (1981).
The most extreme case, before this one, in which an
anonymous tip was found to meet this standard was
White, supra. There the reliability of the tip was estab­
lished by the fact that it predicted the target’s behavior in
the finest detail—a detail that could be known only by
someone familiar with the target’s business: She would,
the tipster said, leave a particular apartment building, get
into a brown Plymouth station wagon with a broken right
tail light, and drive immediately to a particular motel.
Id., at 327. Very few persons would have such intimate
knowledge, and hence knowledge of the unobservable fact
that the woman was carrying unlawful drugs was plausi­
ble. Id., at 332. Here the Court makes a big deal of the
fact that the tipster was dead right about the fact that a
silver Ford F-150 truck (license plate 8D94925) was trav­
eling south on Highway 1 somewhere near mile marker
88. But everyone in the world who saw the car would have
that knowledge, and anyone who wanted the car stopped
would have to provide that information. Unlike the situa­
tion in White, that generally available knowledge in no
way makes it plausible that the tipster saw the car run
someone off the road.
The Court says, ante, at 5, 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
4 PRADO NAVARETTE v. CALIFORNIA
SCALIA, J., dissenting
which, and at the approximate time at which, the tipster
alleged she had been run off the road. Ante, at 6. Accord­
ing 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.’ ” Ibid. (quoting Advisory
Committee’s Notes on Fed. Rule Evid. 803(1), 28 U.S. C.
App., p. 371). So, the Court says, we can fairly suppose
that the accusation was true.
No, we cannot. To begin with, it is questionable whether
either the “present sense impression” or the “excited ut­
terance” 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” is a statement elicited, almost involun­
tarily, by the shock of what the declarant is immediately
witnessing (“My God, those people will be killed!”). See
id., at 368–369. It is the immediacy that gives the state­
ment some credibility; the declarant has not had time to
dissemble or embellish. There is no such immediacy here.
The declarant had time to observe the license number of
the offending vehicle, 8D94925 (a difficult task if she was
forced off the road and the vehicle was speeding away), to
bring her car to a halt, to copy down the observed license
number (presumably), and (if she was using her own cell
phone) to dial a call to the police from the stopped car.
Plenty of time to dissemble or embellish.
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 Advi­
sory Committee’s Notes from which the Court quotes,
Cite as: 572 U. S. ____ (2014) 5
SCALIA, J., dissenting
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.” Id., at 367–368
(footnote omitted). It is even unsettled whether excited
utterances of an unknown declarant are ever admissible.
A leading treatise reports that “the courts have been
reluctant to admit such statements, principally because of
uncertainty that foundational requirements, including the
impact of the event on the declarant, have been satisfied.”
Id., at 372. In sum, it is unlikely that the law of evidence
would deem the mystery caller in this case “especially
trustworthy,” ante, at 6.
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 7. Because,
you see, recent “technological and regulatory develop­
ments” 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 geo­
graphic location with increasing specificity.” Ibid. Amici
disagree with this, see Brief for National Association of
Criminal Defense Lawyers et al. 8–12, and the present
case surely suggests that amici are right—since we know
neither the identity of the tipster nor even the county from
which the call was made. But assuming the Court is right
about the ease of identifying 911 callers, it proves abso­
lutely nothing in the present case unless the anonymous
6 PRADO NAVARETTE v. CALIFORNIA
SCALIA, J., dissenting
caller was aware of that fact. “It is the tipster’s belief in
anonymity, not its reality, that will control his behavior.”
Id., at 10 (emphasis added). There is no reason to believe
that your average anonymous 911 tipster is aware that
911 callers are readily identifiable.2
II
All that has been said up to now assumes that the anon­
ymous 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 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 ma­
neuver 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
José, 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/MeasuringCognitiveDistractions.pdf as visited
Apr. 17, 2014, and available in Clerk of Court’s case file).
——————
2 The Court’s discussion of reliable 911 traceability has so little rele­
vance to the present case that one must surmise it has been included
merely to assure officers in the future that anonymous 911 accusa­
tions—even untraced ones—are not as suspect (and hence as unrelia­
ble) as other anonymous accusations. That is unfortunate.
Cite as: 572 U. S. ____ (2014) 7
SCALIA, J., dissenting
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 hun­
dreds of thousands—perhaps millions—of careless, reck­
less, 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 unsup­
ported 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 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.
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, 534 U.S. 266, 277 (2002) (emphasis
——————
3 The circumstances that may justify a stop under Terry v. Ohio, 392
U.S. 1 (1968), to investigate past criminal activity are far from clear,
see United States v. Hensley, 469 U.S. 221, 229 (1985), and have not
been discussed in this litigation. Hence, the Court says it “need not
address” that question. Ante, at 8, n. 2. I need not either. This case
has been litigated on the assumption that only suspicion of ongoing
intoxicated or reckless driving could have supported this stop.
8 PRADO NAVARETTE v. CALIFORNIA
SCALIA, J., dissenting
added). It was overwhelmingly likely that they were not.
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 confirma­
tion 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 8–
10. 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 sup­
port a stop for drunken driving under Terry v. Ohio, 392
U.S. 1 (1968), it was surely enough to counsel observation
of the truck to see if it was driven by a drunken driver.
But the pesky little detail left out of the Court’s reason-
able-suspicion equation is that, for the five minutes that the
truck was being followed (five minutes is a long time),
Lorenzo’s driving was irreproachable. Had the officers
witnessed the petitioners violate a single traffic law, they
would have had cause to stop the truck, Whren v. United
States, 517 U.S. 806, 810 (1996), and this case would not
be before us. And not only was the driving irreproachable,
but the State offers no evidence to suggest that the peti­
tioners even did anything suspicious, such as suddenly
slowing down, pulling off to the side of the road, or turning
somewhere to see whether they were being followed. Cf.
Arvizu, supra, at 270–271, 277 (concluding that an officer’s
suspicion of criminality was enhanced when the driver,
upon seeing that he was being followed, “slowed dramati­
cally,” “appeared stiff,” and “seemed to be trying to pre­
tend” that the patrol car was not there). Consequently,
the tip’s suggestion of ongoing drunken driving (if it could
be deemed to suggest that) not only went uncorroborated;
Cite as: 572 U. S. ____ (2014) 9
SCALIA, J., dissenting
it was affirmatively undermined.
A hypothetical variation on the facts of this case illus­
trates 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 follow­
ing it, but sees nothing in the truck’s cab. It is not enough
to say that the officer’s observation merely failed to cor­
roborate 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 driv­
ing,” ante, at 8, strongly suggests that the suspected crime
was not occurring after all. The tip’s implication of con­
tinuing 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 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 10. 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 intoxi-
cated 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 physi­
10 PRADO NAVARETTE v. CALIFORNIA
SCALIA, J., dissenting
ological 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 gen­
eral “ability to drive a motor vehicle”). Consistent with
this view, I take it as a fundamental premise of our intoxi­
cated-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 uncorrobo­
rated, vague, and nameless tip, then the Fourth Amend­
ment 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 drunken­
ness. 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. 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 hav­
ing our freedom of movement curtailed on suspicion of
drunkenness, based upon a phone tip, true or false, of a
Cite as: 572 U. S. ____ (2014) 11
SCALIA, J., dissenting
single instance of careless driving. I respectfully dissent.