Just The Tip: The Supreme Court Circumcizes The Fourth Amendment

The US Supreme Court decided Navarette v. California today and rendered what I consider the worst decision since NFIB v. Sebelius. The tiniest silver lining of this decision is an excellent dissent by Justice Scalia (in which, oddly, all female Justices joined), but the case gives police a huge loophole around the Fourth Amendment. Jonathan Adler and Popehat have more.

In the case, police received an anonymous tip that a pick-up truck had run the tipster off the road, and a police car found a truck matching that description in the approximate area where the tipster indicated it would be. Police followed the car for five minutes but it violated no traffic laws. Police went ahead and stopped the car, ultimately finding marijuana. The tipster was never identified and was not involved in the case.

The majority decision is baffling, finding that because the tip is enough for a stop because the anonymous tipster (1) called shortly after the alleged incident, (2) correctly identified where the truck might be, and (3) called 911, the tip is credible. Of course, a lying tipster who wanted your car stopped because he hates you could also call “shortly after” a fabricated incident, identify where your car might be because ANY OBSERVER COULD, and call 911 from a pay phone or a burner.

What you can expect immediately are a lot more anonymous tips that meet these criteria, alleging a single traffic violation and permitting police to pull over the alleged violator. Many of those tips will come from the police* or their allies, calling in tips to allow police searches that would otherwise be constitutionally impermissible. I’d do it myself if it weren’t wrong, even though I’d like to have everyone who agrees with the decision harassed for no reason.

*Fun fact: the tipster in this case provided the truck’s full license place number, a fact that bothers me because I can’t picture someone memorizing it while being run off the road by a truck that speeds away. The 911 call could not be traced to a location – the police don’t even know in which county the call originated. In a mystery novel, it would eventually emerge that the police placed this anonymous call because they knew of the marijuana through illegal means.

Scalia’s dissent is a classic Scalia Fourth Amendment dissent, careful to use case law to bolster its findings but readily attacking the majority’s decision with hypotheticals and likely consequences of this case. Scalia makes no mention of this, but the Fourth Amendment is being gutted constantly (hi, NSA), and this is just the next step. I’ll let Scalia close:

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. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

NetFlix Review: Morgan Murphy & Women Who Kill

Morgan Murphy: Irish Goodbye

I had never even heard of Morgan Murphy until Jim Gaffigan plugged this special on Twitter, and I gave it a shot. I’m glad I did.

Murphy’s is a low-key, deadpan, sarcastic performer, with an edge that says “I know I need to get my life together.” Her topics range are pretty usual – relationships, bars, and general dysfunction (“If I’m attracted to you, it’s not a compliment, it’s a diagnosis.”). She will cross into unquotable (google her name and the phrase “have you ever stolen anything”), but she doesn’t need to – her material is tight and funny without the shock value. Her self-deprecation rings true, and she plays in the space between who we wish we were and who we really are like a pro.

Highly recommended.

Women Who Kill

This hourlong special gives us about 15 minutes each with four comediennes, although some of these sets felt longer than others.

Amy Schumer: I’m a little biased since I saw her live very recently, and I’m enough of a fan to give her the benefit of the doubt. She is clearly a talented writer – her sets are always polished – but I’ve yet to seen her venture beyond her comfort zone. The topics are still sex, dating, sex, ethnicity, sex, and dating ethnic people for sex. It’s good stuff, usually, but I wonder if she will have to stop going to that well at some point soon.

Rachel Feinstein: This was easily my least favorite set of the four. I don’t recall laughing at anything in particular, and I hope that Feinstein just swung and missed this time.

Nikki Miller: Miller was electric on the @Midnight episode I saw her, and I enjoyed her set here as well. She’s best described as a softcore Amy Schumer, merely dancing near the lines that Schumer proudly crosses. She has a certain sweetness that she uses to offset her more edgy material, and it works.

Marina Franklin: My first encounter with this comedienne, and while she didn’t wow me, I can see her potential. Her material is polished and well-constructed, and she’s obviously smart. I’ll keep an eye on her in the future.

Evil Or Incompetent, NSA Edition

The Heartbleed bug, best explained by XKCD, has been in the news the last few days, and the NSA has been accused of exploiting it for years. They’ve issued their standard denial, which led me to make this comment:

This is worth elaborating upon: the NSA is either evil or incompetent. There is no other choice. The options are:

  • the NSA knew about the bug and let it exist for years, exposing the private data of millions of citizens and risking far more damage than they could have possibly prevented.
  • the NSA, which snoops on most of the world’s web traffic and has a budget in the billions, could not locate this bug or even hear any criminals discussing it among all the data it collects.

I, for one, hope for the latter. It’s hard to fear totalitarian control by an entity so freaking inept.

West Virginia Vagueness

My recent post about vague laws reminded me of a statute I encountered a few years ago in my practice. Read this and tell me if you know what’s allowed and what isn’t. Then find a second person that agrees with your definition of unfair. I’ll wait.


§46A-6-104. Unlawful acts or practices.
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

The West Virginia code has other problems (two sections later, there’s an obvious drafting error where “seller or lessee” is used in places where “seller or lessor” is clearly appropriate), but that “law” is an abomination.

Hypocrisy In Action

A paraphrased but substantively accurate conversation between my dad and me that actually happened.

Me: I’m going into town to grab something. Do you need anything?
Dad: Yes! Glad you’re going. I need some wood screws.
M: Wait, we have wood screws. We put all the old tools and things in those boxes in the shed so we’d have them for later.
D: Yeah, but those boxes are full of stuff. It’ll take forever to get to them in there, and then again to find the one box of wood screws. It’s like $2, just buy a new box.
M: So we kept those to save money and now we’re buying more because we can’t go through all the stuff we kept to save money?
D: Yes.
M: This was stupid.
D: Why are you going into town in the first place?
M: I need to get a USB cable for the computer.
D: Don’t we have all the old cords and cables somewhere?
M: Yeah, but who can find that?

No one called me on it, so I’m doing it here, publicly.

The Importance Of Clarity In US Law

I wrote recently that “clarity [in written laws] is more important in America than in most countries, and in the next few days I’ll explain why.” The answer, and this was probably obvious, is that the US has a more heterogeneous population that almost any country in the world. As a result of a long-standing policy on relatively open immigration, especially in the 19th century, the United States lacks cultural hegemony by a dominant group. Sure, there is an Anglo-Saxon heritage that persists to the present day, and there is something of a national culture reinforced by Hollywood and the media, but given the size of American population and its varied origins, the US has large subcultures with different cultural assumptions.

These cultural differences eventually (now) play themselves out in the legal system out of necessity: individuals from different groups will end up in conflict. Laws, meanwhile, can’t possibly predict all possible interactions that may ensue, so not all rules can be clearly defined in advance. This is a more important feature in common law jurisdictions like the US, but it plays a part in civil law countries as well. As a result, rules sometimes contain guidelines that necessarily involve judgment calls. For example, criminal laws often use different gradations of state of mined, including “purposely, intentionally, recklessly, or negligently.” Similarly, many (too many) statues and common law rules require people to act “reasonably” under some circumstance or another. It’s self-evident to me that “reasonable” can mean very different things to different people, although the legal system has the nerve to refer to this rule as an “objective standard.”*

*Meaning only that something seem reasonable to other people, rather than just the perpetrator. I just find it ironic in many ways.

Now, put groups with different cultural assumptions together, and provide them guidance using words like “reasonable,” and see what happens. The answer is lawsuits. Lots of lawsuits. I’m firmly convinced that the perceived litigiousness of the United States, at least below the corporate level, can be traced to misaligned cultural assumptions. I’d also venture that some other social pathologies like low-level crime have similar causes. Basically, there are many borders between cultural groups in America, and at these borders are no-man’s-lands and occupied territories where people disagree on what’s reasonable. More such borders means more potential for conflict, and more conflict means more fighting or more lawsuits.* This is also true when the dispute is between an individual and the state.

*Ideally the latter, because fighting is bad, and also I’m a lawyer.

I quoted Scalia last time when he pointed out that criminal law must be read against the government, which is not only in the best position to make changes if they’re needed, but also the party seeking to deprive others of life, liberty, or property. Plus, fairness requires that people know in advance what’s prohibited. In America, there is far more potential for misunderstanding, and that puts an additional responsibility on those who seek to enforce criminal laws to make them as clear as possible.













Mandatory McCutcheon Post

WASHINGTON (AP) — The Supreme Court’s conservative majority voted Wednesday to free wealthy donors to give to as many political candidates and campaigns as they want, further loosening the reins on giving by big contributors as the 2014 campaign moves into high gear.

It was a fresh declaration by the 5-4 majority that many limits on big-money contributions violate the givers’ constitutional free-speech rights, continuing a steady erosion of the restrictions under Chief Justice John Roberts. The biggest of those rulings was the 2010 decision in the Citizens United case that lifted restrictions on independent spending by corporations and labor unions.

Wednesday’s ruling voided the overall federal limit on individuals’ contributions — $123,200 in 2013 and 2014 — and may have more symbolic than substantive importance in a world in which millions in unlimited donations from liberal and conservative spenders already are playing a major role in campaigns.

The ruling will allow the wealthiest contributors to pour millions of dollars into candidate and party coffers, although those contributions will be subject to disclosure under federal law, unlike much of the big money that independent groups spend on attack ads.

That about sums it up, and I’ll just give my general thoughts below:

  • Contribution limits are largely pointless. As long as government officials have broad powers, access to them will be desirable and profitable. This means that money will find its way to government officials.
  • If the above doesn’t happen via donations, it’ll be through business dealings or bribery. (“Oh, I can’t donate $200,000 to your campaign? Shame. I’ll tell your son, whom I just hired at $400,000 a year.”) Think about cocaine: there’s demand for it, so it’s supplied even when it’s outlawed. Same with access to powerful officials.
  • You probably expected this, but the way to “get money out of politics” is to “get power out of politics.” No one’s going to bribe officials that can’t do much. The First Amendment makes it extraordinarily difficult for the government to regulate speech; if other governmental powers were subject to similar hurdles, there would be a lot less chasing after elected officials.
  • Unrelated to the substance, SCOTUS nerds should be happy about John Roberts and Elena Kagan’s presence on it. Those two write some of the best opinions I’ve read, and Roberts proved it here, too. Best quote: “Those who govern should be the last people to help decide who should govern.”