0:00:01.5 S?: We'll hear argument in case 12-9490, Navarette v. California.

[music]

0:00:08.2 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Navarette v. California, a 2014 case about policing. In it, the Supreme Court ruled that an officer can pull someone over based on an unverified anonymous tip. The ruling gave rise to police practices that are ripe for abuse and discrimination.

0:00:32.1 S?: Navarette's attorney Paul Kleven argued the initial police stop was improper, saying California Highway Patrol did not witness any signs of reckless or drunk and driving before pulling the man over.

0:00:43.8 S?: Police officer allowed to pull them over without the reasonable suspicion that they're supposed to have, so they're intruding on all those people's privacy.

0:00:50.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:58.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have driven our liberties to the outer edges of their habitats, like American settlers did to the gray wolf. I am Peter, I'm here with Rhiannon.

0:01:12.6 Rhiannon: Hey, pour one out for the gray wolf.

0:01:15.0 Peter: And Michael.

0:01:16.0 Michael: Hey, everybody.

0:01:17.5 Peter: Yeah, unfortunately, as we go forward, the more likely I am to use an extinction metaphor every single week.

0:01:29.7 Rhiannon: Have you done buffalo?

0:01:31.2 Peter: I have not done buffalo, but it is on my quick list of potential metaphors.

0:01:37.7 Michael: Do not tell me that you're saving that for when we do native rights stuff.

0:01:44.3 Peter: No, in that case, I would use the natives themselves.

[laughter]

0:01:54.0 Peter: Today's case is Navarette v. California. This is the latest entry into our canon of episodes about the various ways in which cops are allowed to bother you, thanks to the Supreme Court. This is a case about whether the cops can pull you over and stop you on the street because they received an anonymous tip that you are doing something wrong, even if the cops themselves did not see it. One interesting thing about this case is that it did not split across the usual ideological lines. Justice Scalia, who had a fairly strong libertarian streak on Fourth Amendment issues, joined the liberals in dissent, but Justice Stephen Breyer, the ostensible liberal Justice, joined the conservatives, as he often does in Fourth Amendment cases and criminal defendants' rights cases more broadly, which means that while this is one of a long line of our cop episodes, it is the first in our Stephen Breyer retire immediately line of episodes.

0:02:52.2 Michael: That's right.

0:02:54.1 Peter: There has been an increasingly strong call for Breyer to retire, and we're throwing our hat in the ring here with a substantive critique, because not only is he a very old Justice who should step down and be replaced by someone who can hold the seat for longer, but he also low-key sucks on several key issues.

0:03:14.7 Michael: That's right. You won't find us stanning him like some other legal podcasts.

0:03:19.3 Peter: That's correct.

0:03:23.6 Michael: We genuinely don't stan anyone, and I think that's right, fan culture is toxic in legal media.

0:03:28.9 Peter: That's true, we come closest to stanning Sotomayor, but when the time comes, we will throw her to the wolves.

0:03:35.3 Michael: She is a former prosecutor.

0:03:39.3 Peter: That's right. Alright, Rhi, if you can walk us through some background here.

0:03:43.3 Rhiannon: Yeah, sure. So this happens back in 2008, this is a cop story, but I feel lucky to just not be telling all of you listeners a cop story where somebody ends up horribly maimed or dead, so maybe just a little bit better than the usual cop stories we're bringing you. So back in 2008, what happens is a dispatcher for California Highway Patrol in Mendocino County got a call from a counterpart dispatcher in another county. That counterpart told the dispatcher in Mendocino that they had just received a tip from a collar, and the substance of the tip was that a silver F150 pick-up truck had run the collar off the road, and the collar, a woman, gave the license plate number for the truck.

0:04:35.4 Rhiannon: So note right here, this is a woman who was allegedly run off the road calling into 911, and then that dispatch person calling California Highway Patrol dispatch in Mendocino County. So we're already on a bit of a game of telephone here. The Mendocino County dispatcher alerted their colleague and that person broadcast the message about this truck that had run somebody off the road. They broadcast that message to all of the California Highway Patrol officers in the area. That message went out at 3:47 PM. Now, by 4:00 PM, 13 minutes later, an officer from the California Highway Patrol had spotted a vehicle matching that description. By 4:05, just five minutes later, the officer pulled that vehicle over, even though the officer had observed no abnormal or illegal driving.

0:05:30.7 Rhiannon: Inside that truck were two people, Jose Prado Navarette and Lorenzo Prado Navarette. Now, cops get their documents, their license, their registration for the vehicle and they take it back to their cop car, but then as they return, they say that they suddenly smell marijuana. Based on the smell of marijuana, they search the truck and they find 30 pounds of the devil's lettuce. And so...

0:06:00.5 Michael: I gotta say, usually when cops say they detected an odor of marijuana, I'm like, do the jerk-off motion or whatever. But if there were fucking 30 pounds, I buy it. I totally buy that they detected an odor.

0:06:12.8 Peter: We will do a separate episode about why the cops are allowed to say that they smelled something and search your car.

0:06:20.0 Rhiannon: Yeah, totally. As a defense attorney, I'm skeptical about searches that result from an officer smelling something, but 30 pounds is a lot. So, okay. So, because of the marijuana that's found, both of the Navarette guys are arrested. In court, though, they challenged that stop, they challenged being pulled over by California Highway Patrol, and they argued that the cops didn't have reasonable suspicion of any illegal activity. Now, reasonable suspicion, of course is the standard that cops have to have to pull you over, they have to have reasonable suspicion that you have committed some criminal act.

0:07:03.9 Peter: Right, so to be clear here, their claim is not that they didn't have marijuana or anything like that, right, their claim is, you would have never found the marijuana if you had been abiding by the law, but instead you pulled us over without any constitutional reason.

0:07:20.4 Rhiannon: Exactly. And they argued that the officers hadn't observed any illegal or even erratic driving.

0:07:27.5 Peter: Better believe they were driving well, you're at 10 and 2, baby.

0:07:32.6 Rhiannon: Yes, at 10 at 2.

0:07:36.0 Michael: Signalling before you change lanes, for sure.

0:07:39.1 Rhiannon: Sure, right, exactly. One bead of sweat just slowly down the temple. So they argued that the officers hadn't observed any illegal driving and also that an anonymous tip about reckless driving without more doesn't get you to the level of reasonable suspicion that's required, because it's so vague, somebody called in and said, I was run off the road, here's the truck that did it.

0:08:04.9 Michael: Right, right. A long time ago now, at this point in our fifth episode, we covered a case called Terry v. Ohio, where we explained that police are allowed under the Constitution to stop you or your vehicle if they have "reasonable suspicion" that you were violating the law. That was a case about stop and frisk, which I think most people are familiar with, and this is a traffic stop, but the legal rule is actually the same, cops need to have reasonable suspicion that you were violating the law in order to stop you, whether you're on foot or in your car. And so both these situations come up under the Fourth Amendment, which protects you against unreasonable searches and seizures, and as I think most people know with stop and frisk, when cops had a lot of discretion, they abused it, and the same goes with automobile stops, as we'll discuss.

0:09:00.7 Michael: And so in the case here, the question is very simple: Can the cops stop you if the only evidence they have that you were violating the law is an anonymous tip?

0:09:12.3 Peter: Right, and the Court in a 5-4 opinion authored by Clarence Thomas says that, yes, they can. So like Michael said, the Fourth Amendment protects us from unreasonable searches and seizures, that includes protecting you from unreasonable traffic stops. Under the Constitution, if the cops find evidence during an illegal traffic stop, they can't hold that evidence against you in court. The plaintiffs here are saying that the marijuana found during the traffic stop can't be used as evidence against them because the cops did not have a legal reason to pull them over to begin with. This is important to the Navarettes because they don't want to get in trouble for the weed, but it's important to the rest of us, because it sets the boundaries for how flimsy the cops' excuse for stopping you or your vehicle can be.

0:09:58.8 Peter: As we'll dig into a bit later, if the cops can rely on a single unverified anonymous tip to pull someone over, that gives them a huge amount of discretion, and it will inevitably lead to innocent people being stopped in large numbers, either by accident or because the cops are abusing that discretion. If the Fourth Amendment is meant to protect against unreasonable searches and seizures, but the cops can seize you based on one vague anonymous tip that they have not corroborated, then what does that constitutional protection actually mean?

0:10:33.5 Peter: So let's talk about the Court's opinion here, written by Clarence Thomas. Thomas starts off by listing all the reasons that he believes this anonymous tip was enough to justify pulling these guys over. Let's go through them. First, he says that the specifics given by the anonymous caller, which were just the car type, the color and the license plate, lend credibility to the tip, which seems sort of weird to me to say that those details add credibility, because no one's saying the car doesn't exist. The question is what the car did, and whether the caller is either mistaken or lying, and the details about the car are entirely separate from the question of whether the person had violated the law, they're not related at all.

0:11:20.0 Peter: If someone says, hey, that car is red, and the guy inside it is actually a space alien in disguise, and you look at the car and it's red, you're not gonna be like, oh, shit, she was right about the car being red.

0:11:36.0 Michael: Are aliens here?

0:11:36.1 Peter: That really lends credibility to the alien thing.

0:11:39.8 Rhiannon: I want to believe.

0:11:42.1 Peter: And to put it a little more succinctly, this might be a little too much for Supreme Court Justice Clarence Thomas to process, but people are capable of saying a true thing and then a false thing. So second, he says, look, we have reason to believe that this person was telling the truth. If you look at the time when the call was made and compare it to where the truck was eventually spotted, it looks as though the call was made at about the time she would have been run off the road. Thomas is referring to an axiom of witness reliability that essentially says that people's statements are much more reliable as an event is occurring or right after an event occurred. This is something that's called an excited utterance, and it's the idea that something someone says as an event is happening or right after is generally reliable. Because the person is sort of reacting in real time. So if someone shouts, "He's got a gun," that's generally going to be an honest reflection of what that person was witnessing.

0:12:44.7 Peter: Justice Scalia, who writes the dissent here, points out this doesn't really apply to a situation where someone has pulled over to the side of the road, right, they had a moment to gather themselves and process. It's not really the same thing. But regardless, Thomas is just like bullshitting about psychological phenomena that he doesn't even remotely understand. There is an enormous body of research on this stuff, and he's not even pretending to engage with it in the context of this situation, he's just sort of like spouting off. And another important thing about this is, this is information that we know now, the time that she made the call, it's not something that the police knew at the time.

0:13:24.6 Peter: And the question here is whether the police had enough information at the time to pull the car over. They didn't know whether the tip came in right after or not, and so because of that, it shouldn't be relevant here. And I mention this because not only is it part of Thomas's analysis here, but you often see the court in cases like this sort of blur the line a little bit between what the court knows and what the officers knew at the time. But in reality, if the officers didn't know something, then it can't be factored into our evaluation of their mind state. And then Thomas says, look, this person called 911, so even though it's anonymous, they could theoretically be traced if it was a false report, which makes it more likely that the person calling was telling the truth.

0:14:11.3 Peter: Which it is true, that they could be traced, I guess, in a vacuum, maybe. I'm not sure it's worth much, especially since a false report of reckless driving is something you would never, ever get caught for. How would they even catch you? And also, we have zero reason to believe that this woman who called in knew that you could trace 911 calls. So why are we having this conversation at all?

0:14:37.9 Michael: Right, this was over a decade ago, but wasn't there just in the news now, New York wanting to talk about passing new laws about false reports because they are having issues with people trying to use the cops as like...

0:14:49.6 Peter: Yeah, it happens.

0:14:50.1 Rhiannon: Right. False reports are made all the time.

0:14:52.9 Michael: Right, and it's an issue.

0:14:55.2 Rhiannon: People call 911 and fucking lie to the dispatcher all the fucking time.

0:15:00.4 Peter: False reports are up 85% during the pandemic. I just made that up, but that sounds right, right?

0:15:07.8 Rhiannon: Yeah, and I want to take a minute to differentiate and maybe just sort of explicitly draw the difference between an anonymous tip and sort of a regular call to 911. So if you call 911 and you're reporting a crime that you have witnessed, what usually happens is that the caller will state their name, state where they were when something happened, often an address is given, they might talk about other witnesses who were there, they will tell the 911 dispatcher about any injury they suffered, and they will describe that, the 911 caller asks questions to get more information, so that the dispatcher can give the police that information, and the police have a sort of important substantive chunk of information that they then when they're going out to answer this call, they are then collecting even more evidence to corroborate that initial report to 911.

0:16:06.5 Michael: Yeah, you give them your location so the cops can show up and based on your credibility, they can either pretend like they're gonna do something and then just blow it off or just tell you to your face that they're not going to do anything.

0:16:17.5 Rhiannon: That's how policing works.

0:16:19.1 Peter: The are the options if you're white, it gets worse if you're not.

0:16:22.8 Michael: It definitely goes downhill from there.

0:16:26.6 Rhiannon: But here, with an anonymous tip, we have no information on which to base a judgment about the credibility and the context of the report, because all we have... We don't have a person's name, we don't have any significant details about their injury, the circumstances in which this allegation of reckless driving happened, and so there's nothing to go off of except find this car.

0:16:52.3 Peter: Right. The big picture concern here is like, if we want to live in a society where the Fourth Amendment means something, then the police should have to have some evidence that you violated the law before they pull you over. Being pulled over is common, but that doesn't mean it's like a minor thing, that is the force of the state bearing down on you. If you think being pulled over isn't a big deal, try running next time and see based on the cop's reaction whether he thinks it's a big deal. If you want to meaningfully limit the power of the government to fuck with you, then the police should have to have ample evidence that you did something wrong to pull you over, and if all they have is a vague anonymous tip, then they should have to corroborate that tip themselves, say, by following the car.

0:17:46.2 Peter: And I think that leads us to the last part of Thomas's argument, because this isn't just that they get a tip and they pull someone over, they get a tip that implies reckless driving, and they follow the guy for five minutes and they don't see any reckless driving. So one thing to note is that throughout this opinion, Thomas has been very heavily implying that the reason that these people were pulled over is because they were driving as if they were inebriated, that that's essentially what the report was and what the cops were concerned that they were inebriated, and that's why they pulled them over.

0:18:20.0 Michael: Not that just they were dicks to this one lady, but that they are going to cause a future accident and they're going to...

0:18:25.7 Rhiannon: Right, this is a public safety issue, exactly.

0:18:26.9 Peter: Yeah. But Thomas says, look, it doesn't matter that they followed the guy for five minutes and he drove perfectly, because maybe he was just being cautious because he saw a cop, which like... A couple of things.

0:18:41.4 Michael: Look, guys, I don't know if you've ever driven drunk.

0:18:44.6 Peter: All my drunk drivers now. The reason the cops are showing up is because they got a tip that they believed implied that this person is inebriated. When you are incapacitated to the point where it is illegal for you to drive, it is not easy to simply fake having motor skills and cognitive function for extended periods of time. Your fucking neurons are slowing down, dude.

0:19:09.0 Rhiannon: Right, like, you know, put driving aside. Like if you're just chilling and you're high or you're drunk, and then all of a sudden you tell yourself like act cool, act cool, dude, act cool. You can't do it.

0:19:22.0 Peter: How often does it work?

0:19:24.7 Rhiannon: Just sitting on the couch, you can't do it normal.

0:19:26.8 Peter: Look, a drunk person can probably in certain circumstances with adrenaline snap to for brief periods of time. Five minutes is not a brief period of time.

0:19:38.7 Michael: If you're hammered enough to be running car off the road, that's...

0:19:42.2 Peter: And all of that to say, look, if these people were drunk, the cops almost certainly would have seen it in a five-minute window of following them. What Thomas actually says is "extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the five-minute period in this case hardly sufficed in that regard." What he's saying is, look, five minutes isn't enough to know whether he's drunk or not. Here's the fucking thing, though, they didn't just have five minutes. They had as long as they wanted to observe this car. They only took five minutes because they didn't feel like waiting anymore, and then they just pulled the dude over, got lucky and found some weed. So how the fuck can the fact that the cops only observed them for a few minutes before deciding to pull them over make this stop more constitutional than if they observed it for longer?

0:20:38.5 Rhiannon: I just realized how stupid that is, oh, my God.

0:20:41.9 Michael: It's so dumb.

0:20:42.3 Peter: This is sort of the heart of why this case sucks so much, in my view. If cops got a tip that some guy had a kidnapped child in his trunk, then there may be an argument for allowing cops to pull that guy over immediately, because there's a big risk in not doing so, and the cop cannot directly observe the illegal activity.

0:21:02.6 Michael: Oh, they're driving like they got a body in the trunk.

0:21:08.7 Peter: In this case, though, someone is saying essentially that someone is driving recklessly. That is something that is perfectly ripe for the cops to confirm. If our Constitution means anything, surely it means that the government cannot force you to stop what you were doing just because its agents are too lazy to figure out whether or not you're breaking the law. That's exactly what happened here. They're like, alright, we hear that this guy is maybe driving recklessly, they follow him for five minutes and he's not, and they're like, well, I'm tired of this shit, let's just pull the guy over.

0:21:42.4 Michael: This is getting boring.

0:21:43.6 Peter: Yeah, so that's it. Those are all of the reasons that Thomas provides for saying that this is a trustworthy tip, it's that the tipster used 911 and that she knew the make and model of the car, and that she appeared to have called the tip in shortly after the incident occurred.

0:22:00.2 Rhiannon: You know what, all of those reasons also indicate that someone knew these people and wanted them to get pulled over.

0:22:10.1 Peter: That's a great point, 'cause lingering in the back here is the fact that maybe, maybe someone calling 911 and saying, hey, this person was driving recklessly, and then it turns out that when the cop follows them and they're not driving recklessly and then bang, they've got 30 pounds of marijuana, maybe that's not a coincidence. Maybe the caller knew there was marijuana in the car. Now, again, this is speculation, there's no information about this, we don't really know, but it's I think worth considering when you're talking about an anonymous tip.

0:22:42.2 Rhiannon: Right. And when you're talking about what the police can do with very initial vague information that's not corroborated.

0:22:50.3 Peter: There's a couple of options, right, maybe it was someone who knew them and very much just approved of their drug dealing, maybe it was a rival drug dealer or someone who had an interest in seeing them thwarted in their effort to transport the marijuana. But it doesn't really matter which one of those it is or whatever, because the bottom line is, if any of that is true, then the tipster is lying and was not run off the road, and the tape is not reliable, and the entire Supreme Court decision is predicated on the idea that it is reliable.

0:23:17.9 Michael: Right, and I don't think the Court is actually... Nor are the prosecutors or the cops or anyone is like, missing that point. I think there's a degree to which this opinion is dishonest, and there's like a sort wink wink like, yeah, maybe that was what this sort of tip is, but we're fine getting those sorts of tips 'cause it lets us get marijuana off the street. But if that's the claim, it should be stated and it should be defended, because if you're furthering the interests of a rival gang, for example, I think you're hard-pressed to say that that's actually in the greater public interest and that it's protecting public safety.

0:23:55.0 Michael: I don't think that's something that should be blithely accepted because it allows you to get a headline arrest. And I will say, my upstairs neighbors are like, they must be like CrossFit freaks or something, and since the pandemic, with all the gyms closed, they work out constantly, it's like multiple times a day, they're like jumping rope and shit right over my bedroom at 2 AM or... It's bizarre, but I would definitely call in a fake anonymous tip if I thought there was a chance I could get them arrested. 100%.

0:24:32.8 Peter: Look, the bottom line is very simple. What Thomas's majority opinion does not address is the fact that a tip being anonymous almost certainly makes it less likely that it is actually true, and like we can speculate about rival drug gangs and shit like that all we want, 'cause it's fun, that bottom line remains true regardless, and Clarence Thomas is basically giving that his blessing. Although in his defense, maybe we can assume that Clarence Thomas, a man who made his marital vows to Ginni Thomas, a QAnon proponent who had a fairly sizeable role in the January 6th insurrection in Washington DC, is perhaps not the foremost scholar on the concept of trustworthiness or reliability.

0:25:17.6 Michael: Yeah, I do want to note, like there's a footnote early in the opinion where Thomas says like, look, it's not clear that the tip was actually anonymous, but thanks to some procedural quirks at the very beginning of this case, it has to be treated as anonymous in this case. And I have to say, I think that's doing some work here. Like, for all the talk about treating this as anonymous, a lot of the argument is this sort of hand-waving back during the idea that it wasn't anonymous, oh, look, 911 calls can be traced and blah, blah, blah, blah, technology has advanced so much. And that's just a poor, lazy way to handle an important constitutional issue. Using a case where you suspect the tip wasn't actually anonymous as the use case for setting rules going forward for actually anonymous tips, it's terrible law-making, if you want to call it law-making, it's terrible jurisprudence. However you want to frame it, it's just very bad.

0:26:16.1 Peter: I think, Michael, that you're right about how Thomas perceives this. Just to give our listeners some color, basically, what Thomas points out is that we don't actually know if it was an anonymous tip. It is sort of agreed upon by the parties that it was for the sake of procedure. So when the Court evaluates it, the Court has to evaluate it as if it is definitely anonymous. In reality, we don't 100% know, and I think that Thomas thinks that it wasn't, and he's just sort of like, well, this wasn't really an anonymous tip, and that's how he's going. But the law now applies to anonymous tips, so it doesn't matter, it doesn't matter if it was or not.

0:26:49.0 Peter: And maybe the most important point against the cops here goes completely unaddressed by the majority. The question is whether this tip was enough for the cops to say that they have reasonable suspicion of illegal activity. And like I mentioned, the majority acts as though it's sort of a given that the tip suggested that the driver was drunk. Thomas talks about this as if this is like a matter of intoxication throughout the opinion, but what the 911 call actually said was that this car ran me off the highway, not that the driver seemed drunk or was generally driving erratically. Saying that someone ran you off the road can mean a number of things, it isn't even really saying that the other person broke the law, it might have been an innocent mistake, it might have been a reaction to another driver or a pot hole or an animal.

0:27:39.9 Peter: So not only is the tip anonymous, but even if you assume that it's true, it's not clear that it implies that the driver in question broke the law. And what that means is that the Court's holding here is that an anonymous tip stating that someone made a single potentially reckless driving move on the road is enough to make a cop reasonably suspicious that that driver is intoxicated, even if the cop observes them driving perfectly for five minutes afterwards. That is an egregious outcome, even by Supreme Court standards.

0:28:16.5 Rhiannon: Yeah, absolutely, it rubber-stamps bad policing, I think, and it does what we've said the Supreme Court does in a lot of cases having to do with police power, which is take the institution of the Court out of the conversation, out of being an accountability on the massive institution and the massive power of policing. And I think this is a good time to talk a little bit about the Confrontation Clause in the Constitution, because reports that are made by anonymous tipsters bring up this really important constitutional concern for me. So the Confrontation Clause is in the Sixth Amendment of the Constitution, and it provides in part that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him," and so generally that means that if you are accused of a crime that you have the right to have a face-to-face confrontation with witnesses who are offering testimonial evidence against you.

0:29:24.8 Peter: The right to confront your accusers.

0:29:26.8 Rhiannon: Right, exactly. And that's important for a lot of reasons, and is a long-standing legal tradition. It comes from English common law, it comes from Roman law, that you have the right to defend yourself openly...

0:29:39.7 Peter: It also comes from the streets, if someone was like, hey, Rhiannon, did you punch that chick? You'd be like, who the fuck said that? Who said I punched her?

0:29:46.3 Rhiannon: Exactly, exactly. And take my name out your goddamn mouth. Right, it makes logical sense. This is how... This is how like accusations work. So the importance of the Confrontation Clause I think is clear, but can sometimes need a little bit of explanation. Confrontation ensures reliability in the adjudication process. You can trust that someone was given fair proceedings, someone who was accused of a crime. When you require that an accuser must state that accusation publicly, that they are subject to cross-examination and that their testimony and their presentation can be scrutinized for reliability. Now, the Confrontation Clause applies to trials, if you take a case all the way to a trial, but that idea of scrutinizing evidence for reliability and to scrutinize a witness for their reliability and the truth of what they're saying, that concept is absolutely at play when cops are gathering evidence.

0:30:51.5 Rhiannon: Cops write into their reports, "this person doesn't seem credible, it seems like this person is lying, or this person seems credible because of all of this corroborating evidence." Anonymous tips allow for skipping over that accountability mechanism, and I think when we're talking about originalism and originalists' interpretation of the Constitution, it's something that's always struck me is that literally four out of the ten Amendments in the Bill of Rights are explicitly about the rights of criminal defendants.

0:31:24.2 Peter: That's why they're treated so well in this country.

0:31:27.2 Rhiannon: If you're not counting the Ninth and Tenth Amendments, which are just sort of broadly about non-enumerated rights anyway, you're left with eight Amendments in the Bill of Rights that enumerate specific rights. Four of those passed are about the rights of criminal defendants. So originalists, the Founding Fathers must have been concerned about something really fucking important, and Clarence Thomas is just like, it has nothing to say about that. And that leads me to sort of Supreme Court treatment of the Fourth Amendment more specifically.

0:32:03.5 Rhiannon: The Fourth Amendment protects everybody from unreasonable searches and seizures and what's happened in the post-Earl Warren Supreme Court era, so the last, whatever, 60 years, what's happened is that Fourth Amendment jurisprudence from the Supreme Court actually has failed to protect us in that original vision of the Fourth Amendment, and actually just serves to tell cops now how to lie and how to present their cases and how to write their reports so that it won't be scrutinized by courts. When you're just sort of rubber-stamping and blindly affirming expansive discretion to the police and giving them more and more power, when courts should be the accountability mechanism, taking a much more skeptical approach to what cops are doing, that's a problem. And I think this case exemplifies that perfectly.

0:33:04.1 Peter: One of the first times I saw a police report, which is just a tiny slice of your life, Rhiannon, the cop said, "I was reasonably suspicious that X, Y, Z." And I was like, "Wait, can he just say that?" Like, you know... Yeah, it's the Supreme Court in the '60s said you have to have reasonable suspicion. And then the cop's just like, "Yeah, I was reasonably suspicious," just mimicking the language.

0:33:25.2 Michael: And then later on that gets expounded on, they say particularized facts, and so they learn which facts count. And cops pay attention to these cases, and they write their reports to conform to the standards set forth, but that's report writing. They don't conform their behavior to them, they just learn how to describe their behavior in a way that puts them above judicial review.

0:33:54.1 Rhiannon: That's the perfect articulation, Michael, and I think when you talk to any public defender, for sure I've said this before, any public defender in the country will say cops lie in every single case. And that's exactly the problem, is that the law here, Supreme Court jurisprudence on the Fourth Amendment has not held police to account in terms of their behavior, it has only held police to account in terms of what they report they saw or what they report they gathered in terms of evidence. And this case right here, it helps police lie. You're giving them massive power to attribute their own sort of illegal stop of somebody or their use of an informant, and you're allowing them to attribute it to "anonymous tips" for which they don't have to show any proof or corroboration. And so you're further dodging the protections in the Constitution against unreasonable searches and seizures and against the Confrontation Clause.

0:34:53.1 Peter: Yeah. Scalia's dissent in this case actually has a moment of legal realism where he's discussing all these things that we're discussing, and he explicitly says, I think it's page 1 of his dissent, he's like, cops read these decisions closely, so that they know exactly what boundaries they can push. And again, it's hard to overstate how true that is. I do a little bit of research for this podcast, and part of that is I will Google our cases to see if there's like any interesting Law Review articles or blog posts, and I'll search for podcasts to see if any other podcast has covered it and make sure we're not treading on the same ground or whatever.

0:35:29.0 Peter: And every time we do a cop episode, I will find the same thing. Podcasts by cops for cops that explain in five minutes the Supreme Court decision with sort of an emphasis on like, here's what this means you can do. It's bizarre, but there's a whole ecosystem of it. They're talking to each other about this shit, about how to abuse it, and that's why these decisions need to do more than just sort of give rules to cops, they need to actually check the power of cops.

0:36:01.2 Peter: In our fifth episode, which we mentioned earlier, Terry v. Ohio, we talked at length about the propensity of cops to lie under oath in order to justify their own actions as well as to support convictions. It's been almost a year since that episode aired, so worth reiterating a couple of points. Research and reporting has shown the police lying under oath, which they have a name for, police call it testilying, is a serious and ongoing problem. So any time the Court allows cops to operate on their own discretion, that's what you're risking, you're placing the public trust in an institution that we verifiably know we cannot trust.

0:36:39.2 Peter: So if you accept that the police are not reliably honest in testimony, which is frankly just empirically true, think about what this case can do for them. This is the Court saying, hey, all you need to pull someone over, any citizen, or to stop and frisk them, is an anonymous tip that says that they maybe did something wrong. Think about what a dishonest person could do with that standard. Think about what a cop who is trying to justify after the fact a stop could say. All you need now is to say that you had a tip, and who was the source? Oh, can't tell you. This is a dishonest person's dream.

0:37:26.2 Peter: It's hard to impress upon people. There's something that I, even I, before talking to you, Rhi, extensively, probably underestimated, but I'd also done... I've done some class action litigation about public defense, and the extent to which police officers are lying really cannot be impressed upon our listeners enough. It is enormous. We're not talking about bad apples, we're not even talking about 50% of a department, we're talking about situations where every time you're unsure about a detail, it is commonplace and accepted and encouraged implicitly and explicitly to lie.

0:38:06.0 Rhiannon: Yeah, that's exactly right. And I think what I wish listeners would take away from this kind of episode is how the Supreme Court takes part in that culture-building, because what they do with a case like this is open the door to so much more lying. When you tell police that an anonymous tip is enough to pull somebody over, an anonymous tip is enough to stop you on the street and frisk you, you are opening the flood gates in terms of how police are going to use "anonymous tips" in their investigations.

0:38:41.7 Rhiannon: As a public defender, I have not an insignificant amount of cases at any given time that originate out of an anonymous tip. You don't ever find out who that person is, you don't ever know the circumstances of the report, you don't know anything about that person and about how this information originated against somebody who is now facing the full weight of the state, the full violence of the criminal punishment system, based on a complete question mark. And that I think brings me back to the goals of policing, like the way this jurisprudence has shifted and contributed to this culture where police [0:39:24.6] ____ just a ton of stops, pulling people over all the time, arresting them based on jack shit, and that being the goal of policing rather than public safety. The role of cops, ostensibly, is to keep us safe, and this case expands the power of police to stop someone who is driving perfectly.

0:39:48.8 Rhiannon: How does that serve public safety? At the heart of this case is a regular 911 call, reporting some alleged erratic driving, and the Supreme Court takes it and turns it into a massive gift to police in terms of their ability now to build a huge tip solicitation infrastructure, where police are constantly pushing the boundaries on what they can do, by saying it's for public safety. Police departments all over the country now solicit anonymous tips. There are tip lines that you can call, and you don't have to say who you are, and you don't have to say why you're reporting something, and you never have to show up in a court of law, it is just for the anonymous reporting of crimes. And so then as a step off, when we know what the police do on communities of color, which is enact violence constantly, it just makes me fucking sick like to think about this case and what it did for police.

0:40:49.5 Michael: Right, right. And it's like, with the old stop and frisk cases, at least ostensibly, the cop is supposed to have witnessed something, something that would raise their suspicion. In this case, not only do they not have to have witnessed anything, they could witness perfect behavior. And they don't even have to have a tip alleging criminal behavior, they just need a tip that alleges something that sounds like it might be criminal behavior, maybe, or it might imply future criminal behavior. And on those grounds, they can stop you. It is so lax, there's so much discretion being given to cops here, and you know, the bottom line is we know what cops do with their discretion. They fucking abuse it.

0:41:31.5 Peter: And the one thing we haven't said that we should say, that we always have to say in cases like this, is I think a lot of people just sort of roll their eyes at stuff like this and say, well, these guys had 30 pounds of marijuana, so who gives a shit? And the bottom line here is that, of course, they had drugs on them, because if they didn't, they wouldn't have appealed, they wouldn't have had any reason to appeal. If the cops had just stopped them, bothered them for no reason and let them go, they wouldn't have sued. They're suing because they don't want to get in trouble for the 30 pounds of marijuana.

0:42:02.4 Peter: That's why every time there's a case like this, they always found something, they always found a gun, they always found some drugs, and it allows people to sort of just ignore it. Well, they were criminals anyway. We're not advocating for a system that is designed to give free rein to criminals, we're advocating for a system that is designed to prevent cops from pulling over whoever the fuck they want, and that's going to include a small percentage of criminals, and it's going to include a huge percentage of people who are just going about their business every single day.

0:42:33.3 Michael: Right. It's unfortunately the case that the boundaries of your rights, the specifics of your rights and the boundaries of the state's power over you, are often gonna be decided by criminals, by people who are found with drugs or weapons or committing a crime, sometimes a very heinous one. That shouldn't matter. What should matter is the state's power over you, the way it exercises its monopoly in violence and when it can and cannot exercise that violence.

0:43:02.7 Peter: Yeah. And now for a flawless transition. Let's talk about Supreme Court Justices. So as we have noted, Antonin Scalia writes the dissent here. Scalia really has a single area of the law where he's good, and it's the Fourth Amendment, searches and seizures.

0:43:21.2 Michael: Yeah, some people give credit for First Amendment, but I think he's pretty just...

0:43:25.3 Peter: Yeah, I agree with that. He had a real libertarian streak that left him sort of very skeptical of the ability of police to intrude into citizens' property and into their personal space. That doesn't mean that he was good for criminal defendants' rights generally, his jurisprudence on the rights of defendants in interrogations and on cruel and unusual punishment, for example, horrific, some of the worst in the biz. And I think the best explanation for this is if Justice Scalia could imagine himself or someone he knows being affected by something, then he was very concerned with it. So the ability of police to pull you over is something he's sensitive to, right, it's an experience almost all of us have had.

0:44:04.4 Michael: Scalia was known for his excess.

0:44:06.9 Peter: That's right.

0:44:07.2 Peter: Yeah. He was also known as a man who drinks, and in his dissent he sort of is like, Clarence Thomas is obviously a fucking straitlaced freak, 'cause he's not drinking much, and Scalia is like correcting him. Scalia's like, no, when you're drunk, bro, let me tell you, you could not drive straight for five minutes, dude. He really relates to this. He's like, are we pulling over everyone who's swerving a little bit? But the further you get from his own personal experience, like an accused person in an interrogation room or on death row, the less he seems to care.

0:44:43.9 Peter: Now, you might think that that analysis is speculative and in bad faith, but so is basically everything the man ever wrote, so I don't give a shit.

0:44:51.5 Michael: That's right. That's right.

0:44:54.5 Peter: And the other interesting thing here is Justice Stephen Breyer joining the conservatives in the majority. Breyer was appointed by President Clinton in 1994. He is now 82 years old. Given the outcome of Justice Ruth Bader Ginsburg's decision to stay on the Court rather than give up her seat when she could be replaced by a Democrat, there is growing discussion on when Breyer will step down, and growing pressure on him to do so. This case is a good example of an area where Breyer is, simply put, a conservative Justice.

0:45:26.7 Peter: His jurisprudence on the Fourth Amendment is quite bad, and because the Fourth Amendment is an area where Scalia was actually quite good, it was Breyer's vote that often gave the win to conservatives. So it's not just that Breyer should step down because he will be replaced by someone younger, he should step down because he will be replaced by someone better, and you can thank him personally for the freedom that cops have to invade your space in this country.

0:45:51.6 Rhiannon: Yeah, and I just want to say, Stephen Breyer, you're a mealy-mouthed fucking worm bitch, and I don't like you. You think you're cute, you think you're very clever on the bench when you're asking questions. You're not funny, you're fucking old and you suck at this. God, can you imagine Stephen Breyer just spending maybe an hour in central booking somewhere at like 2:00 AM, like what that would be like?

0:46:18.5 Michael: I cannot.

0:46:18.5 Peter: He believes that he could use his logic and reason to get his way out of that situation.

0:46:22.4 Rhiannon: Right, exactly. He thinks he's much too smart to ever be arrested.

0:46:26.4 Peter: I think that if you look back at the Supreme Court for the last 40 years, there have only been a couple lines of cases that have been consistently liberal. Gay rights in the past 25 years is probably the most prominent one. The Fourth Amendment would have been another, if Stephen Breyer was an actual liberal on it.

0:46:45.9 Rhiannon: Really good point, Peter.

0:46:47.1 Peter: It's crazy to think about it, but the entire line of cases that has brought us to where we are today in terms of the ability of cops to interfere with your space and person is on the back of Stephen Breyer.

0:47:01.4 Rhiannon: Law students, I have a paper idea for you: Stephen Breyer on the Fourth Amendment and how he was a conservative, and it's all his fucking fault.

0:47:09.5 Peter: Here's another one: 5-4 and how it's changing the country's view of the law.

0:47:15.7 Michael: Alright, now shut the fuck up. I've been trying to say something for 10 minutes and you guys keep interrupting each other while I'm going, "Uh... Uh... "

0:47:25.1 Peter: Sorry that we're vibing too hard for you.

0:47:29.2 Michael: What I was gonna say is that Stephen Breyer... We keep saying he's a conservative, and I think that's a quirk of American politics, I think that he's very comfortably like a big state liberal. Because of the way race works in America and the way police work in America, it turns out that like the left and liberals have a very civil libertarian streak, but that's not... Like liberalism and the left are often associated with a big, powerful state, a big central government, and a big powerful police force is like, goes well with that. Breyer is very much in that sort of mode, and his trust in the federal government to get the welfare state right and to get all this other stuff right extends to his trust in the police, and that makes him very conservative in a country that's so racially and class stratified, where the police are used to hold the hierarchies in place and hold the poor and minorities down. That's all I wanted to say.

0:48:28.0 Rhiannon: Gorgeous. I'm so glad that you asserted yourself.

0:48:31.4 Peter: You are welcome.

[music]

0:48:39.9 Peter: Alright, closing notes: Fuck the police. Next week, United States v. Morrison, a case about the Violence Against Women Act of 1994 and how it interacts with interstate commerce. Whoof. I love the law.

0:49:00.3 Rhiannon: Titillating. Titillating stuff.

0:49:00.6 Peter: What an incredible [0:49:01.6] ____. Rhi, don't mock the episode.

[laughter]

0:49:09.0 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.