Has Chief Justice Roberts Lost his Mind?

On Yesterday, Chief Justice Roberts, along with Justice Scalia, wrote a dissent to the failure of their colleagues to grant writ of certiori for a Virginia case where where a drunk driver was puled over and arrested following an anonymous tip. This is apparently a growing practice in several states (including CA, NH and AZ). Many states (including FL) still adhere to the doctrine that the officer must observe DUI activity before effecting the arrest. In other words the officer must have a reasonable suspicion of DUI (or some other traffic violation) before stopping the vehicle.

As it stands right now, the bar is not very high for this reasonable suspicion, giving officers broad authority to stop you and begin questioning you about your drinking that evening. The most popular is to follow someone until they "weave", which is something that all but the most conscientious drivers do.

The idea of reasonable suspicion has been around for 41 years, since Terry v. Ohio created the "Terry Stop", and investigative tool which gives officers the ability to temporarily detain someone whom they reasonably suspect to be involved in the commission of a crime. In the years since, the Terry standard has been applied to all manner of searches and stops and has become a cornerstone of search and seizure law.

The second issue with respect to this is the anonymous tipster v. citizen informant. Anonymous tipsters are assumed to be unreliable, whereas citizen informants are assumed to be reliable. I have placed a call to report reckless driving to the police before, but when I did, I gave my name and a contact number. I was a citizen informant. If the anonymous tipster standard is upheld, then the idea of reasonable suspicion itself is in doubt. I am not saying that anonymous tips can not be used, only that the officer must have some verification before he makes you do the drunk dance. The inevitable result of the outcome Roberts desires, would be the elimination of 40+ years of protection from the word of an anonymous tipster being all that stands between you and a jail cell.

I will leave you with this example of the end-state example of what the policy that Roberts is espousing would lead to:

SHERIDAN, Wyo. (AP) - Mayor Dave Kinskey passed a sobriety test after a phoned-in tip that said he may have been driving under the influence of alcohol.
After he was pulled over Saturday night and passed the field sobriety test, Kinskey had his attorney drive him to a hospital, where he had a blood-alcohol test at his own expense. The test showed that his blood-alcohol level was 0.02 percent, according to Police Chief Mike Card....
City Councilwoman Kathy Kennedy said she was with Kinskey at a motorcycle rally Saturday and saw him drink two beers over two hours.
''To me this is just a smear campaign to try to get at him due to politics. I think it is pretty bad when an off-duty city employee calls in to smear the mayor by saying he was intoxicated when he wasn't,'' Kennedy said.

Justice Roberts is a smart man, but he is letting the swirl of emotions that often surrounds DUI to cloud his judgement with regard to the greater ramifications of his actions. Remember, emotion = bad law.