"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.