A case argued before the U.S. Supreme Court today will go a long way in resolving the question of whether we have finally become a full-blown police state, or whether liberty has a chance of returning to the default status intended by the Framers.
In Navarette v. California, the question has been stated some places to be whether or not the police can stop a suspected drunk driver on an anonymous tip without the cops observing any suspicious or illegal driving conduct. That is, really, can we elevate hunches to the status of reasonable suspicion if the subject matter is drunk driving, where there are already legions of exceptions to constitutional and statutory norms? The irony here is that Navarette was not found to be a drunk driver.
The faceless finger-pointer claimed that he ran her off the road, so the cops just stopped someone driving what looked like the vehicle described, without observing any bad driving, and found marijuana! They didn’t find a drunk driver, which is what all the hysterio-rhetoric is about, but instead a person possessing marijuana. And that reveals the danger to us all from the government position in this litigation, doesn’t it?
California has advanced a truly revolutionary doctrine in constitutional discourse, however this revolution is not in the direction of liberty but of power. They want to introduce into constitutional litigation the notion of a sliding scale of assessments, such that the more dangerous the crime, the less evidence necessary to support the liberty infringement to investigate that crime. And, of course, drunk driving is sputtered to be of the most dangerous kind of all! In addition to the stock hyperboles prefacing cases where drunk driving is the subject, the Chief Justice, distressed that cert. was denied in a previous, similar case [Virginia v. Harris], opined, in addition to other grotesque overstatements, “Drunk driving is always dangerous, as it is occurring.”
Really? By “drunk driving” do you mean a person driving with .08% and above but competently, or a person weaving all over the road, crashing into things, due to actual impairment by alcohol? If the latter, then the dictum is not wide of the mark, but if the former, the reactionary chief resembles a Salem Witch Trial magistrate. And if the latter, there would not need to be the rule proposed here, because the offense would be manifest.
It is utterly false that .08% alone signals dangerousness – it actually only signals political decisions over the decades, which started here at .15% and went to .10% and then to .08% solely because of political lobbyists’ efforts, not because of forensic science truths [which, as we see from the recent and ominous Vangelder, are not welcome in California courts when they upset the establishment view, a la Galileo v. Pope Urban VII].
If the police are allowed to subjectively claim that they suspect they are on the trail of a drunk driver on lesser standards than any other crime, we can count on seeing many more drunk driving investigations which “coincidentally” lead to other than drunk driving crimes, as in Navarette. But I thought subjective beliefs of the cops are irrelevant, in the wake of Scalia’s Whren observations? Are we going to have yet another drunk driving exception now, an exception to the subjective belief rule?
You see, the vehicle [!] that is bringing this case is the subject of anonymous finger-pointers, but the rule being sought has to do with a lessening of the quantum of evidence necessary for a traffic stop, regardless of how it is conveyed, if the officer believes the offense involved is of a certain nature. Technically, if the courts really understood the relevant doctrines, anonymous finger-pointers could not support a stop in court here anyway, because that is hearsay, which might be admissible for suppression motions in the federal sphere, but which is not admissible under some state standards, including California’s [properly understood]. Here, there must be real “evidence” at the hearing, which would preclude a cop testifying that someone told him x, y, and z, whether that someone is known or anonymous. That clear rule, the one of true evidence for suppression motions, appears to have gone by the wayside in these discussions, further proving that we are only a “learned profession” in pretense, not in practice.
It has long been the law, and a necessary component of it, that the results of a liberty infringement do not justify the nature of its inception. What is being proposed here is a perverse twist on that rule – that the nature of what the cops thought they would find in the stop does support the nature of the initial liberty infringement, even if that thinking turned out to be factually wrong. That is a most dangerous notion indeed.
Anonymous finger-pointers might have many motives for snitching off people, probably the least of which is a genuine, objective concern for traffic safety. The rule proposed by government here would invite mischief by every angry boyfriend, disaffected former spouse, furious employer or employee, cop who can’t get a search warrant, and various other self-regarding sorts manufacturing horror stories to wreak harassment on enemies. Lessening constitutional standards to enable vengeful utilization of eager government powers to deprive people of liberty not shown to be justified by what is actually observed by government presses us ever closer to the abyss, into whose depths we are increasingly in danger of tumbling. We peer into its yawning depths, and it increasingly sneers back at us.
We were “conceived in Liberty,” not in expansive power, and the Courts increasingly seek to abort the fruits of that conception. Over my dead Bar Card!