On Oct. 20, 2009, the U.S. Supreme Court refused to review a case on appeal from the Virginia Supreme Court. In Virginia v. Harris,1 the Commonwealth of Virginia sought review of an opinion rendered by the Virginia Supreme Court (in a 4-3 vote) overturning a conviction for drunk driving because the police officer who stopped and arrested the driver, as a result of an anonymous tip, failed to witness the driver commit any traffic violations prior to stopping him.
At approximately 6:30 a.m. on Dec. 31, 2005, an anonymous caller contacted the Richmond, Va., 9-1-1 center to report an “intoxicated driver in the 3400 block of Meadowbridge Road, named Joseph Harris.”2 The caller gave a detailed description of the driver and vehicle: Harris was wearing a striped shirt, drove a green Altima with a license plate containing “Y8066” and was driving toward the city. Officer Claude Picard Jr. was assigned the call. He then drove onto Meadowbridge Road toward Harris.
After Picard passed a green Altima, he turned to follow it. At the 3200 block of Meadowbridge Road, Picard observed the vehicle’s brake lights activate and slow down as if it were going to stop at an uncontrolled intersection. This occurred despite the fact that the vehicle had the right of way and was traveling only 25 mph.
Picard continued to follow the Altima and noticed that the brake lights were activated again, well before the intersection of Meadowbridge Road and Brookland Park. As the car stopped for the red light, Picard observed that the license plate number was “YAR-8046,” close to the description of the license plate information from the 9-1-1 caller.
After the light turned green, the Altima drove through the intersection and pulled over for no reason. Picard activated his lights and siren and conducted a traffic stop. Upon approaching the driver’s side of the vehicle, Picard noticed that the driver, Joseph Harris, smelled of alcohol and had glassy, watery eyes. Upon exiting the vehicle, Harris had difficulty standing and failed the field sobriety tests. He spoke with slurred speech. Picard placed Harris under arrest for violating Virginia’s drunk driving law.
Harris filed a motion to suppress, asserting that the stop was improper under Terry v. Ohio3 because the officer didn’t have a reasonable, articulable suspicion that Harris was driving under the influence of alcohol. The trial court denied Harris’s motion. On Sept. 12, 2006, Harris was convicted of driving while intoxicated (a felony) after having been convicted of two similar offenses in the past. He was sentenced to three years imprisonment and a $2,500 fine. On Feb. 5, 2008, a Virginia Court of Appeals affirmed Harris’ conviction, reasoning that “the nature of the tip, the officer’s corroboration of innocent details of the tip, as well as the officer’s observations of the defendant’s driving behavior justified the stop.”4 Harris appealed to the Virginia Supreme Court, and on Oct. 31, 2008, it overturned his conviction.5
Conducting a traffic stop under these circumstances is the subject of a heated debate. A majority of courts allow police officers to stop motorists suspected of drunk driving under these precise circumstances, or when an officer corroborates innocent details of the tip, without requiring that officer to observe erratic driving.6 But a minority of states hold that police officers must observe erratic driving after receiving an anonymous report of drunk driving.7
In overturning the conviction, the Virginia Supreme Court relied on the U.S. Supreme Court decision in Florida v. J.L., in which the court found that an anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip:8 “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’”9
The reliability of a tip can be bolstered when a 9-1-1 caller provides predictive information the police can use to test the caller’s basis of knowledge and/or credibility. An anonymous 9-1-1 call that provides no predictive information leaves the police with no avenue to corroborate the caller’s knowledge or credibility.10
Chief Justice Roberts
In a somewhat unusual move, Chief Justice John G. Roberts of the U.S. Supreme Court wrote a dissenting opinion, taking to task the majority’s decision to deny the Virginia Commonwealth’s petition for writ of certiorari.11 Stating that citizens are well aware of the dangers of drunk driving, Roberts wrote that they often make use of state drunk driving hotlines to report dangerous motorists on the roadway. Roberts also wasn’t so sure that the Fourth Amendment to the Constitution requires independent corroboration before the police can act in the special context of anonymous tips reporting drunk driving.
Agreeing that the Supreme Court was correct to suppress evidence seized by the police in Florida v. J.L. after the police received an anonymous tip alleging that a young male, dressed in a plaid shirt and waiting at a bus stop would be carrying a gun,
Roberts stated that it was not clear that this rule would apply to anonymous tips involving drunk drivers. Indeed, as Roberts noted, J.L. found that the Fourth Amendment analysis might be different in other situations.
Roberts noted that the Fourth Amendment rules were lax in other areas involving drunk driving. He cited Michigan Dept. of State Police v. Sitz,12 in which the Supreme Court approved the use of field sobriety checkpoints of approaching motorists despite the fact that the overwhelming majority of motorists were innocent, and Indianapolis v. Edmond,13 in which the Supreme Court upheld government measures “aimed at removing drunk drivers from the road,” as opposed to measures having the primary purpose of “detect[ing] evidence of ordinary criminal wrongdoing.”
By refusing to review this case and allowing the Virginia Supreme Court opinion to stand, Roberts stated that 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.”14
I’m willing to bet that an officer has already been faced with such a tragedy by the time this article is published.
The Bottom Line
Yes, there’s a conflict among individual states as to whether police officers may rely on an anonymous tip reporting a drunk driver to pull over that driver prior to making an independent observation of a traffic violation. Police officers must follow the laws of their individual states. I have no doubt this issue will present itself before the Supreme Court once again. Until that occurs, police officers are encouraged to consider all violations they observe in initiating a traffic stop (e.g., a broken taillight or failure to activate a turn signal). Of course, to assist in a successful prosecution, police officers are wise to document every
violation they observe.
Laura L. Scarry is a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992. Contact her at firstname.lastname@example.org.
1. 08-1385 2009 WL 3348727, 558 U.S. __ (2009).
2. The facts for this article are taken from the underlying briefs written by the parties.
3. Terry v. Ohio, 392 U.S. 1 (1968).
4. Commonwealth’s Petition for Writ of Certiorari, p. 4.
5. Harris v. Commonwealth, 668 S.E.2d 141 (Va. 2008).
6. The following states do not require the officer to observe erratic driving by the motorist: California, Delaware, Hawaii, Iowa, Kansas, Maine, New Hampshire, New Jersey and Vermont. See, Commonwealth’s Petition, at 11-14.
7. Virginia, Wyoming and Massachusetts require officers observe erratic driving prior to conducting a traffic stop under these circumstances. See, Commonwealth’s Petition, at 15-18.
8. Florida v. J.L., 529 U.S. 266 (2000).
9. Id. at 270 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).
10. Id. at 271.
11. This is the technical name for a request for appellate review from a lower court. It is discretionary and if the case involves a federal issue, i.e., the Fourth Amendment, the Court will hear it if at least 4 of the 9 justices vote to hear the case.
12. 496 U.S. 444, 455 (1990).
13. 531 U.S. 32, 37-38 (2000).
14. Harris, 2009 WL 3348727 at *2.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.