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October 27, 2009
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Doug Wyllie, PoliceOne Editor in Chief 10-43: Be Advised...
with Doug Wyllie, PoliceOne Editor in Chief

Traffic stops: Court "upholds" ban on stops based on a caller's tip

Police officers must personally witness erratic driving before stopping a suspected drunk driver

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 on the matter.

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.


 

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


About the author

Doug Wyllie is Editor in Chief of PoliceOne, responsible for setting the editorial direction of the website and managing the planned editorial features by our roster of expert writers. An award-winning columnist — he is the 2014 Western Publishing Association "Maggie Award" winner in the category of Best Regularly Featured Digital Edition Column — Doug has authored more than 750 feature articles and tactical tips on a wide range of topics and trends that affect the law enforcement community. Doug is a member of International Law Enforcement Educators and Trainers Association (ILEETA), an Associate Member of the California Peace Officers' Association (CPOA), and a member of the Public Safety Writers Association (PSWA). Even in his "spare" time, he is active in his support for the law enforcement community, contributing his time and talents toward police-related charitable events as well as participating in force-on-force training, search-and-rescue training, and other scenario-based training designed to prepare cops for the fight they face every day on the street.

Read more articles by PoliceOne Editor in Chief Doug Wyllie by clicking here.

Contact Doug Wyllie





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