Monday, April 28, 2014 | One comment

New Judicial Federalism: How Utah Can Avoid Recent Supreme Court Erosion of the Fourth Amendment

By Josh Daniels

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The U.S. Supreme Court recently issued a decision in the case of Navarette v. California which has potentially grave consequences for Fourth Amendment rights. The decision upheld the stop of a vehicle precipitated by an anonymous phone tip of erratic driving. Upon identifying the reported vehicle, police followed and did not observe any traffic infractions or signs of impaired driving to corroborate the phone tip. Nevertheless, officers stopped the vehicle based on the alleged reasonable suspicion created by the phone call alone. While the court’s opinion is narrow and contingent on specific facts, it leads us down a dangerous road that erodes the reasonable suspicion standard designed to protect Fourth Amendment rights. By allowing an uncorroborated anonymous phone tip to form the basis of reasonable suspicion, we open the possibility for anyone to send government agents to stop innocent actors without requiring any verification of the accusation.

The court points out the precedent-creating legal standard for a permissible stop:

The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances — the whole picture.” Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.

This type of stop is called a “Terry stop,” deriving its legal authority from the case of Terry v. Ohio (1968) where the court recognized a limited exception to the more traditional probable cause standard for seizing a person in an arrest. In Terry, the court agreed that stopping a person is a form of seizure, and therefore covered by the Fourth Amendment. However, the court reasoned that because this type of police stop is only a brief detention and not the full seizure as with an arrest, they would recognize a limited exception and thus lowered the required standard from probable cause to reasonable suspicion. Over time, the court has widened the application of this exception, giving more discretion to police stops generally. In this case we now see a dilution in the factors that can form a reasonable suspicion.

Ruling that a single anonymous phone call alleging erratic driving can form “a particularized and objective basis for suspecting the particular person of criminal activity”—drunk driving in this case—is quite a stretch of the standard. This leads to an erosion of critical protections—one that we should be quite concerned with.

Justice Antonin Scalia, writing for the dissent, took issue with the majority opinion, arguing that it “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.”

The dissent’s view of the Fourth Amendment requires a driver to be left alone if the only evidence of irregular driving “is a mere inference from an uncorroborated, vague, and nameless tip.” While they agreed that “drunken driving is a serious matter” they also noted “so is the loss of our freedom to come and go as we please without police interference.” The concern of the dissenting justices was that “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.” The dissent did not believe such a rule was consistent with the vision of security from unreasonable searches and seizures established by the Constitution’s framers.

Should we fear this erosion of Fourth Amendment rights in Utah?

Legal precedent in Utah may be more protective of Fourth Amendment rights than the U.S. Supreme Court. The Utah Constitution includes similar protections in Article I, Section 14 that the Utah Supreme Court can apply in state-based cases that deal with searches and seizures. In State v. Watts (Utah, 1988) the court explained that “choosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state’s citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts.” The court in State v. Larocco (Utah, 1990) did just that and noted that “an increasing number of state courts are relying on an analysis of the search and seizure provisions of their own constitutions to expand or maintain constitutional protection beyond the scope mandated by the fourth amendment.” In Larocco, the court then went on to decide the case using a more protective view of searches than the federal rule and struck down a search as unreasonable on state constitutional grounds.

Under this more protective view of Fourth Amendment rights, the Utah court could rule that a single anonymous phone tip does not create reasonable suspicion for a stop. A recent Utah case came close to this scenario. In State v. Gurule (Utah, 2013), the Utah Supreme Court heard a case where an anonymous phone tip of drug activity led police to follow a suspect. The police waited until they observed an actual traffic infraction before stopping the vehicle. However, the police suspected the individual of drug activity without a sufficient legal basis to do so and detained the individual longer than necessary in order to facilitate permission of the subject’s parole officer for a more invasive search. Despite eventually finding drugs, the court struck down those later searches as not relevant to the initial “plain view” search associated with the traffic infraction that formed the basis of the stop. While the court did not rule on the anonymous phone tip specifically, it only acknowledged the actual traffic infraction witnessed by police as a sufficient basis for the stop, leaving the drug-related phone tip as irrelevant. This decision seems to indicate that a stop based on a phone tip alone may not have been enough to form reasonable suspicion for the court.

We commend Utah courts for each case in which they view constitutional protections in Utah independently from federal case law and seek to be more protective of our rights than the “vagaries of inconsistent interpretations” that plague the federal courts. Such a view and practice is critical to assert the sovereignty of the State of Utah and recognize the independent duty that Utah officials have in protecting our individual liberty. This approach, called “New Judicial Federalism,” is an important way for states to assert their rights and sovereignty in the face of flawed federal precedent. We call on Utah courts to ignore federal precedent that violates the rights of Utahns and that is inconsistent with the constitutional protections created by our state constitution.

Writing for the majority in Printze v. US (1997), Scalia recognized the principal of “dual sovereignty.” Printze struck down federal gun regulations that sought to compel or conscript state law enforcement to apply federal regulations. Scalia wrote that such “commands are fundamentally incompatible with our constitutional system of dual sovereignty.” The same can be said of those who would attempt to apply federal case law in interpreting the protections of the state constitution. Utah is a dual sovereign with the United States and as such can protect its citizens from government action in accordance with its constitution in a manner that is more protective than federal case law has been. In fact, federal case law is not the only determining factor that should guide police tactics or policy.

While the Supreme Court is an arbiter for specific cases deciding when specific acts have violated constitutional provisions, decisions that uphold government action as constitutional do not preclude the other co-equal branches of government from acting more narrowly than court precedent might allow. For example, just because the court recognizes reasonable suspicion as a permissible standard under the Fourth Amendment for an officer to stop and detain someone does not preclude police or policy makers from deciding to use a probable cause standard instead. In fact, it should be the case that policy makers should seek to protect Fourth Amendment rights to the maximum degree, erring on the side of “insulating citizens” rather than expanding discretion for government agents.

The founders did not envision nine appointed justices as the sole protectors and interpreters of the Constitution. The work of the Court is limited to decisions in specific cases resolving conflicts that lack specific legislative direction or invoke constitutional disputes. If Congress were to pass federal legislation declaring “Terry stops” as unconstitutional and establishing probable cause as the appropriate standard for police stops by federal agents, the Court could not overturn such a law merely because previous cases found such stops permissible. Such a law would stand until repealed or amended. This same reasoning is true for sovereign states; state policy can be more protective of constitutional principles than federal law requires.

We agree with Justice Scalia that “the loss of our freedom to come and go as we please without police interference” is a “serious matter.” The ruling of the U.S. Supreme Court upholding this dilution of reasonable suspicion chips away at critical Fourth Amendment rights. We call on Utah lawmakers, judicial officers, and law enforcement administrators to follow policies that are more protective of Fourth Amendment rights than the policies tolerated by federal courts.

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About the Author

Josh Daniels is a policy advisor for the Libertas Institute. He graduated with a B.A. in Political Science from Brigham Young University and with a J.D. from the University of Houston Law Center. Previously, he worked for three years as an aide to US Congressman Pete Olson and served for eight years in the United States Marine Corps.


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