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Supreme  Court  upholds ban on traffic stops based on a caller's tip
According to a report in the Christian Science Monitor (the entirety
of  which  you can read below), the United States Supreme Court “has
let  stand a ruling in Virginia that police officers must personally
observe erratic driving before stopping a suspected drunken driver.”
In  point  of  fact,  the  Court  turned  down (without comment) the
opportunity to hear an appeal.

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Expectedly,  the  response from PoliceOne readers has been immediate
and impassioned. 

“So  what the court in general is saying is that if a police officer
does  not  witness the commission of a crime then it did not occur,”
said one of our members. 

“Drunks everywhere are cheering. But it’s the cops who'll still take
the  blame when Joe Drunk wipes out a family of four in a drunken T-
bone collision,” said another. 

“What’s  next?  Does the offender have to actually cause an accident
or  hit  someone?” said a still another P1 member. “As long as there
is  evidence of erratic driving by anyone with two eyes and a brain,
they should be able to report it.” 


Even  the Washington Post, which typically leans the other direction
on  such  matters,  expressed  outrage  over  this news, saying atop
today’s  editorial  page that the Supreme Court has let stand “a bad
Virginia  decision  on  drunken driving,” and gives drunks “one free
swerve.” 

“While  it’s  a  travesty  that  the Virginia high court has made it
harder  for  police  officers  to  act  on  such  tips,  it  is  not
impossible.   Citizens  should  continue  to  blow  the  whistle  on
suspected drunk drivers,” the Post concluded. 

While  you  were adding your comments below, we were in contact with
Terry  Dwyer,  one of our legal experts who also serves as a regular
columnist  on matters related to police liability and litigation. An
attorney   since   1991,   Dwyer   represents   police   officers in
disciplinary  cases  and critical incidents while serving as General
Counsel to a New York State law enforcement union. 

Dwyer told us that “the Court’s decision to reject cert on this case
would  seem  to be dependent on its prior ruling in Florida v. J.L.,
which apparently was the reason for the Virginia court's suppression
of  the  intox  evidence. I can't say I agree with the Chief Judge's
analysis  in  the  dissent. To say the J.L. decision may be narrowly
viewed  as being applied to anonymous tips related to gun possession
allegations  is  legal hair splitting at its best. The Court has, in
other  cases, rejected this application of a per se rule to offenses
based  on  seriousness.  For example, the government has in the past
argued  for  narcotics  exceptions,  and robbery exceptions, due the
concern  as  to  where  the law draws the line. The Fourth Amendment
requirements  are  straightforward in the sense of probable cause or
the  lesser  reasonable  suspicion standard of Terry v. Ohio where a
crime has been or is in the process of being committed.”

Dwyer, a 22-year veteran (ret.) of the New York State Police and now
Assistant Professor in the Justice and Law Administration Department
at  Western  Connecticut  State  University,  said  that while it is
regretful that a criminal suspect gets off, the exclusionary rule is
a  judicially-crafted  remedy  for  Fourth  Amendment constitutional
violations. 

“The  scenario  here  is  unfortunate  because what we have from the
facts  is  a  conscientious  officer  performing  his  duties  in  a
professional   manner  with  no  malfeasance  on  his  part  in  the
performance of those duties. However, just as in the scenario of the
J.L.  case,  had  the  officer taken a moment to make an independent
determination   for  himself  as  to  the  erratic  driving  and  to
corroborate  the  anonymous tip then we would not be discussing this
issue.  The officer cannot be faulted and we know good intentions do
not  apply  here  because  the  "good faith exception" is limited to
those made by the judiciary or the clerical type of errors discussed
in Herring v. U.S. last term by the Supreme Court.”

Dwyer  further  tells  PoliceOne  that  a  bit  of  history  may  be
instructive with regard to the dissent of Justice Roberts, who was a
young  lawyer  in  the  Reagan  White  house  and wrote an extensive
briefing  memo  as  to why (and how) the exclusionary rule should be
done away with. 

“We  have  already witnessed a very active Roberts-led Supreme Court
in  the  area  of  Constitutional criminal procedure and the results
have not always been what we would expect from this court.” 

Dwyer says that for PoliceOne readers seeking additional information
on  that, you can look at our coverage of Arizona v. Gant, (in which
the court overruled 28 years of history in Belton). 

“Legally  I  don't  have  a problem with the denial of cert, nor the
Virginia Court holding based on the precedent, especially Florida v.
J.L.,”     Dwyer  concldued.  “I  see  this  case  as  an  excellent
instructional case for review to make our officers more aware of the
subtleties of the Fourth Amendment.” 

PoliceOne  will continue to follow this story and provide additional
updates  as  they become available. Meanwhile, add your voice to the
conversation by adding your comments below.


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Supreme  Court declines to set rule on drunk driving stops By Warren
Richey Christian Science Monitor

RICHMOND,  Va.  —  The  US  Supreme  Court has let stand a ruling in
Virginia  that  police  officers  must  personally  observe  erratic
driving before stopping a suspected drunken driver.

On Tuesday, the high court declined to take up an appeal involving a
Richmond  motorist  who was pulled over by a police officer based on
an anonymous tip that he was driving under the influence of alcohol.

The  issue  in the case, Virginia v. Harris, was whether the officer
was  justified  in  confronting  the driver with a roadside sobriety
test,  or  whether  he should have waited until Harris' driving gave
rise  to  a reasonable suspicion of drunk driving independent of the
anonymous tip.

The  case  stems  from  a  December  2005 telephone call received by
police.  The  caller  said  that  an intoxicated driver named Joseph
Harris  was  driving  an  Altima, southbound on Meadowbridge Road in
Richmond. The caller gave a partial license plate number.

Officer Claude Picard of the Richmond Police Department soon located
an  Altima being driven by a man with a license plate similar to the
number offered by the caller.

The  officer  followed Mr. Harris and watched as the motorist slowed
down  before crossing an intersection where he had the right of way,
and  slowed  down again 50 feet before reaching a red stop light. At
other  times  the car was traveling at the stipulated speed limit of
25 mph.

Once  through  the  intersection,  Harris pulled his car over to the
shoulder  and  stopped.  Officer  Picard pulled up behind Harris and
activated his lights and siren.

The  officer detected a strong odor of alcohol on Harris' breath and
noticed  that  his  speech  was slurred. Picard administered a field
sobriety  test. Harris failed. He was charged with operating a motor
vehicle  while  intoxicated.  Harris  had been convicted of the same
offense twice before.

At  trial,  Harris'  lawyer argued that the charge should be dropped
because  the police officer lacked the level of reasonable suspicion
needed  to  justify  the  traffic stop. The trial court rejected the
argument  and Harris was convicted and sentenced to serve 90 days in
prison. A state appeals court affirmed the decision.

The  Virginia  Supreme  Court voted 4-3 to throw out the conviction.
The  state  high court said the anonymous tip did not provide enough
evidence   of  criminal  wrongdoing  to  overcome  Fourth  Amendment
protections against unreasonable searches and seizures.

The  police officer must personally observe criminal activity before
an investigative stop is justified, the Virginia court ruled.

The  Virginia attorney general's office appealed the decision to the
US  Supreme Court, urging the high court to overturn the opinion and
make  clear  that in cases involving suspected drunk drivers, police
officers are justified in conducting a brief traffic stop.

The  Supreme  Court  turned  down  the appeal without comment. Chief
Justice  John  Roberts  filed  a  dissent, joined by Justice Antonin
Scalia.

Chief  Justice  Roberts  said  a  sharp  disagreement had emerged in
federal  and  state  courts  over  this  particular Fourth Amendment
issue.  Most courts have upheld the police stop, but some have ruled
for  the  motorist. "The conflict is clear and the stakes are high,"
he wrote.

"The  effect  of  the rule below will be to grant drunk drivers 'one
free  swerve'  before  they  can  legally be pulled over by police,"
Roberts said.

"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."

Copyright 2009 Christian Science Monitor

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A  veteran  of  more  than ten years in online and print journalism,
Doug   Wyllie  was  writing  about  digital  music  before  Napster,
streaming  video  before  YouTube, and wireless technology since the
original  Palm Pilot debuted. As senior editor of PoliceOne, Doug is
responsible for the editorial direction of the PoliceOne website. In
addition  to  his  editorial  and  managerial responsibilities, Doug
writes  on  a  broad  range of topics and trends that affect the law
enforcement community. 

Read  more  articles  by  PoliceOne  Senior  Editor  Doug  Wyllie by
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