Justice Thomas’ mixology has come under fire from Justice Scalia and the three girl judges who warn that the majority opinion in Navarette v. California “serves up a freedom-destroying cocktail.”
Scalia, rising to the defense of the Fourth Amendment rights of drivers – as well he might, given his reputation as the Evel Knievel of D.C. – demolishes the majority’s say-what logic, whereby a single swerve is enough to create reasonable suspicion of drunk driving. There are lots of reasons for swerving, Scalia retorts. A chicken crossing the road. A crater left by a recent meteorite, otherwise known as a pothole. A voice from Heaven. Look at St. Paul falling off his horse on the road to Damascus. And all he had was a couple of beers.
Scalia lambasts the majority’s reasoning that not only does a swerve create a presumption of hammeredness, the presumption can’t be overcome by subsequent “irreproachable” driving. According to the majority, good driving after a swerve proves that the driver is three sheets to the wind and a law-evading sneak. As the majority maddeningly intones, “It is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time.”
(IMHO any sentence beginning with “it is hardly surprising that,” a staple phrase of People’s briefs, usually flags some kind of crackerbarrel opinion).
If drunk drivers could just will themselves into careful driving, DUI wouldn’t be a problem. “I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again,” Scalia shyly notes. Everybody is entitled to at least one swerve before being hauled out of their car and made to blow up balloons.
The other deadly ingredient in the Navarette special is that an anonymous call to 911 is enough to support a traffic stop so long as the caller can say where the car is. Well duh, of course the caller can say where the car is, but how does that make the caller reliable, Scalia wants to know, predicting that this new rule is going straight into the Patrol Guide.
A freedom-destroying cocktail indeed. Bottoms up.