Scalia's Excellent Dissent in Navarette And Some Thoughts On Anonymous Tips

The Court's decision in Navarette this week took significant steps  to roll back its prior anonymous tip doctrine. There are numerous faults in the majority opinion, each of which Justice Scalia lays bare in his dissent (joined by Ginsberg, Sotomayor, and Kagan).

In a very fine piece of legal writing, this paragraph was especially good. Scalia discusses the majority's belief that a drunk driver who notices that police are tailing him can somehow sober up enough over the next five minutes so as to drive like a person not impaired:

Resisting this line of reasoning, the Court curiously asserts that, since drunk drivers who see marked squad cars in their rearview mirrors may evade detection simply by driving “more careful[ly],” the “absence of additional suspicious conduct” is “hardly surprising” and thus largely irrelevant. Ante, at 10. Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist.

Slip op., 9 (Scalia, J., dissenting) (my emphasis).  

I recommend reading the entire opinion, especially for those criminal defense lawyers who will need to craft anonymous tip arguments in the wake of Navarette.

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I'll note, however, that I think this turn in the law was inevitable. Since J.L., the courts have operated under the dubious assumption that a person who phones 9-1-1 is unaccountable because his identity cannot be confirmed. The majority opinion in large part does away with this assumption.

The anonymous tip doctrine has been rife with these sorts of assumptions. Why, for instance, did we assume pre-Navarette that a person who gave his name to a dispatcher was suddenly more reliable than before he gave his name? The whole basis of the anonymous tip doctrine is that we cannot trust a tipster, who very well may have a mischievous motive for the tip. That  being the case, why would we believe that the name the tipster gives is in fact his real name? Of course, we must rely on such assumptions because otherwise no 9-1-1 tip could ever alone suffice for reasonable suspicion. 

At any rate, Navarette signals that the doctrine is unraveling; to the detriment of defendants and the privacy of the public, as Justice Scalia points out.