Justice Thomas’ mixology has come under fire from Justice Scalia and the three girl judges, who warn that his 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 Thomas’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 Thomas’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 Thomas, good driving after a swerve proves that the driver is three sheets to the wind and a law-evading sneak. As Thomas 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, invariably flags a crackerbarrel opinion).
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 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 next edition of the Patrol Guide.
A freedom-destroying cocktail indeed. Bottoms up.