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Wednesday, October 21, 2009

Negotiating a "One Free Swerve" Rule

Should the Constitution be Read to Prevent Police From Acting on a Tip that a Driver is Drunk -- until his driving actually shows it?

This is where the logic of constitutional law can seem mystifying, yet the Supreme Court yesterday decided overwhelmingly to let it stand. Why? With just two justices (Roberts and Scalia) dissenting, the Court voted not to hear the case of Virginia v. Harris and let an appellate court decision remain in force. The details of the case are simple. An anonymous tip delivered to a police dispatcher tells of an inebriated man driving a green Nissan Altima, even including a few details of his license plate. An officer is dispatched to follow the car. In the time during which he observes it, the officer finds the driver's conduct to be reasonable and cautious, proceeding under the speed limit, braking appropriately in advance of stoplights and even slowing down at intersections. But eventually, as the driver unexpectedly pulls over to the side of the road, the officer pulls behind him and approaches the car. He discovers that in fact Joseph Harris's breath does smell of alcohol, his speech is slurred and his eyes are watery. After Harris fails a sobriety test, the officer arrests him on a DUI. Harris claims a violation of his Fourth Amendment rights, asserting that his arrest involved an "unreasonable search and seizure." He believes that the officer had no "reason" to pull him over other than the inherently suspect "anonymous tip." Eventually, on appeal a federal court agrees. But opponents -- including Chief Justice John Roberts -- ask, aren't we preventing police from utilizing whatever tools they need to combat a deadly social ill?

The answer lies somewhere in the fragile balance of "rights"and "responsibilities" -- the individual's right to remain free from the government unreasonably intruding on private affairs and the responsibility of the state to secure public safety. One can certainly imagine how absent a "one free swerve rule" police could abuse their power. Once a mere tip -- anonymous or otherwise -- meets the standard for a criminal investigation of a driver it could open up abuse by those holding a grudge against the accused or by a prankster or simply by someone who misunderstood what he or she saw.

In his dissent to the Court's denial of certiorari, Chief Justice Roberts pointed out the severity of the drunk driving problem -- a death every forty minutes, 13,000 deaths a year -- and how the Court's recognition of a "do nothing" rule, requiring the police to do nothing until the driver commits an unsafe act leaves open the possibility that the "one free swerve" may be the deadly one.

Roberts then raises an interesting question -- should we treat all Fourth Amendment situations equally? His answer is no. Does the imminent threat posed by a drunk driver suggest that we need a rule that excludes such situations from the stricter analysis that might apply to a search where time is not the pressing factor? Since the majority based its decision on precedent -- a case called Florida v J. L. where the Court disallowed an arrest based on an anonymous tip -- Roberts asks whether that case, which involved the frisking of a man at a bus stop on a tip that he was carrying a gun, wasn't substantially different from this one. Aren't tips about drunken behavior likely to be based upon eyewitness accounts rather than rumor? Isn't there a diminished expectation of privacy when driving on public roads? Isn't driving drunk inherently dangerous whereas other crimes -- even carrying a gun -- are not? He also points out the conflict of decisions on this subject that characterizes lower court rulings, pleading that his own court clear up the confusion by taking on this case. You can read the Roberts dissent here.

This is the sort of case which will get popular attention. You can almost hear Lou Dobbs running on about it. "How can the Court tie the hands of police on a subject of such life and death importance?" But as with so many constitutional issues, the depths of the argument are not immediately apparent when examining the case by itself. Only an examination of the law -- here, the Fourth amendment -- and the subtle meanings of such subjective terms as "unreasonable" can do that.


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