Tuesday, April 22, 2014


"Be not deceived." 
That was the  concluding coda to Justice Scalia's first paragraph in his blistering dissent  in Navarette v. California to Justice Thomas's statist opinion upholding a traffic stop in California based solely on an anonymous and uncorroborated tip to 911 that a truck was driving erratically.

Scalia attacks the majority's recitation of the facts (that the tipster knew the truck was driving south on the highway) with a patented Scalia Sneer: "So what?"

The DUI practitioner will love this rant:

What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, 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. ...

Consistent with this view, I take it as a fundamental premise of our intoxicated-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 uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.

(There's no doubt the good Justice missed an epic career as a DUI litigator).

To end his dissent, Justice Scalia just can't put down his cocktail:

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 drunkenness. 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.

Mr. Markus and I are engaged in an on-going debate as to whether Justice Scalia is a "friend" to the criminal defense bar. We concede today (and today only) , point Markus.


Anonymous said...

I have always felt that Scalia is a friend to the criminal defense bar, and he reaffirms my belief yet again.

Anonymous said...

There goes 50 years of cases saying the tip needs to be verified or the tipster needs to be easy to identify so they can be charged with making a false police report.

Truth be told... every case I have had with a 911 call of a drunk driver resulted in a drunk driver being arrested.

Go figure.

Golf Guy said...

I've been pondering lately the 1954 Masters and Hogan's double bogie on the 11th. Such a shame. Lost to Snead in the playoff.
He fell behind on the 11th when his second shot found the pond guarding the green. That led to a double bogey and later prompted the famous quote from Hogan: “If you ever see me on the 11th green in two, you’ll know I missed my second shot.”

Ryan/Rand '16 said...

In March, Rep. Paul Ryan said during an appearance on 'Bill Bennett's Morning in America' radio show that there is a "tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning to value the culture of work."

"Veiled racism" is the cry, but isn't it the truth, though? You can't call out truth any more without being called "a veiled racist".

Anonymous said...

I read the Supreme Court opinion and yes, it really makes it easy for cops to stop you.

All it takes is a tip and the car has to match the tip.

Anonymous said...

18 years after he authored the majority in Whren and 13 years after joining the majority in Lago Vista, Scalia is shocked (shocked!) at the prospect of the police having carte blanche to stop not just criminals but all of us on trumped up b.s.

Anonymous said...

So what, the cop is going to testi-Lie and say he saw erratic driving, swerving into other lanes, etc to justify his stop, anyway

Anonymous said...

Watching our protections erode, keep pumping money into politics, no longer the wealthiest middle class, ..........we're going to hell in a hand basket at a dizzying speed.

And, all these idiot politicians worry about is jobs? Keep worshipping the almighty dollar America, it's serving you well.

Jefferson Knight said...

It's utterly ridiculous to state that Scalia is a friend of the criminal defense bar. He is a friend of freedom. A few times I have called 911 to report swerving, weaving, probably drunk drivers. I always state my name. It never occurred to me for one second that the police would not verify the swerving and weaving for themselves before making a stop. This is scary.

Anonymous said...

8:08, you are right on. Scalia is an asshole.



Judicial Elections 2014 ....

Lots happening in the judicial races.

Major moves by candidates from one race to another and several new candidates filing in the past two days.

+Cobitz and Millan lose an opponent

+Incumbent Judge decides not to run and instead retire

+Two candidates enter the new open seat; but neither are "new" candidates

+ Altfield just started mimicking Pharrell

+ Another County Court Incumbent Judge draws opposition.

WOW. So much happening just this week.

All to come in my front page post.

Captain Out .....

Anonymous said...

Ryan/Rand '16, you can call out truth and if truth calls you back out then you deserve it. Ask Ole Mitt about the 47%. There are plenty of people not in an "inner-city" or "urban area" (veiled word for black or brown community) that have this same "tailspin of culture" and they actually make up the larger part of the population but that's not on PR's radar of concern. If the concern is that Americans ("inner-city" residents are still Americans right?) don't want to work then say that (don't see many "rural" farmers doing the fruit picking anymore). Please continue with your cries of "Take back OUR country" so we can know who you are.

Anonymous said...

I agree. If a cop wants to stop you, he or she will. There are so many available justifications. Speeding. Tints. Lane change. Until they put dash cameras in all police cars countywide they will continue to get away with it.

Anonymous said...

This is the offspring of Michigan State Police v. Sitz, the case that allowed suspicionless sobriety checkpoints because the benefits of combating DUI's outweighed the "minimal intrusion " of the roadblock stop. Sitz eviscerated the 4th Amendment and Navarrete flushed it down the toilet. After Gutting the 4th Amendment appealing Sitz, the State of Michigan banned suspicionless roadblocks. The people of the DC area should be on the lookout for Justice Thomas' car and anonymously report him at the slightest swerve out of his lane. Maybe the cops will find him to be under the influence, which would explain such an asinine opinion.

Foodie said...

I took my GF Saturday night the pop-up - I don't know what to call it- it's not a restaurant per se- this cuban-chinese chef takes over a place- and it was the most amazing Dim Sum and chinese food I've ever had. It was midnight, wall to wall people and it turned out we were squeezed in next to the Boston Globe's restaurant critic who, having secured a place, flew down to try Paco Chin, that's the guy's name, food.

After we tried the Havana-Bejing chicarones, the guy said it was probably the finest dish he has ever eaten anywhere and would easily sell out at $250-$300 a plate in NYC or Boston. Chin roasts a whole pig and burns as much of it as possible for the chicarone. Then he peels it off and chops it up into bite sized pieces. Then he wraps them in palm leaves and soaks them in some secret tea formula for two days before steaming them in a Mattake mushroom infused broth. Mattake mushrooms are the most expensive in the world, blowing away truffles. The result is this sometimes soft sometimes crunchy chicarone with this tea-mushoom hint of an after taste. Then, he takes the broth used to steam the chicarone and makes mattake infused hand pulled noodles, which is raman like you'e never had. The chicarones sit on top of the hand pulled noodles which just soak up the flavor. Unbelievable to say the least.

How about duck breast in a cuban garlic sauce placed in a bao?
How about kobe beef vaca frita in a bao?
It's cuban/chinese and unlike anything you have ever experienced.
How about hand pulled noodles made from tostone flour? Or fish tacos with grouper and sea bass flashed fried in home made Szechwan oil.
Snapper wonton soup with the most amazing fried snapper tidbits and believe it or not, yuca. The taste blends like you cannot even imagine.

About 200 people were served from 12-5am, $200 per person, price fixed, about a dozen small courses and you stagger out and go home and sleep for ten hours.

Anonymous said...

6:48 p.m., it's not "chiCaRones". It's "chiCHaRRones". You are missing the flavor in the "h" and the double "r".