A DUI Exception to the Constitution?

Today, according to an article in the Washington Post, Justice Roberts of the United States Supreme Court “spoke out” about a DUI case. He was joined by Justice Scalia in dissenting from the decision of the other justices of the Court to deny review of a ruling from the Virginia Supreme Court. The Virginia court found a police detention of a suspected DUI driver was unconstitutional where Virginia police stopped a car for DUI based upon an anonymous, uncorroborated tip to a “drunk busters hotline.” The Virginia Supreme Court ruling is in line with established law in Washington state.

In Washington State this very issue was considered twenty seven years ago in the case of Campbell v. DOL. In that case an anonymous tip was given to police that a vehicle was driven by a drunk driver. Nothing was known about the reliability of the person giving the tip, nor was anything known about the facts upon which the tip was based. An officer followed the “offending” car and saw nothing unusual, but he pulled it over anyway. Applying well-established principles of law, and relying upon precedent from the United States Supreme Court, the Court of Appeals reasoned as follows:

• “The case before us involves the unusual situation of a police officer on traffic detail stopping an automobile driver for suspicion of drunken driving when the officer has absolutely nothing to suggest that the driver was under the influence of intoxicating liquor except a conclusory tip from an unidentified passing motorist that the driver was drunk.”
• “A police officer may make an investigatory stop for suspected drunk driving, but before doing so he must first possess a well-founded suspicion based on articulable facts that such a violation has been committed or is presently being committed.”
• “The passing motorist in this case provided no factual information from which the officer could assess, as he must, the probable accuracy of the motorist's conclusion.”
• “The State argues, however, that the initial detention was nonetheless reasonable due to the threat of harm to third parties and the resultant need for an immediate police response. We agree that the seriousness of the suspected criminal conduct is a relevant consideration in the reasonableness calculus, e.g., there must still exist some measure of objective fact from which the conclusion of criminal conduct can reasonably be derived. To hold otherwise would be to expose every citizen's right of privacy against arbitrary invasion by others to the unfettered exercise of an officer's discretion. This is what the Fourth Amendment was enacted to prevent. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...”

It is not difficult for an officer to obtain the corroboration needed to stop a suspected DUI driver based upon a citizen offering only an anonymous tip. The officer might simply ask: “Who are you and how do you know?” and then the tip would be neither anonymous nor uncorroborated. Barring that, the officer might just rely upon his training. As the Campbell court pointed out:

“It is perhaps appropriate to observe that driving while under the influence is not a readily concealed offense. For example, the Washington State Patrol Academy's current training manual lists some 44 different “detection clues”, based on the manner in which a vehicle is operated, which indicate that the operator may be under the influence.”

Courts have, for years, employed the Constitutional principles underlying Campbell to determine whether a detention is legal in the context crimes such as murder, robbery, and the like. However, the temptation to create a DUI exception to the Constitution is strong, and maybe Justice Roberts is not strong enough.

Justice Roberts stated: “I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.”

I do, of course, have all the appropriate respect for Justice Roberts. However, it is elementary that the protections established by the founders of this nation (and preserved at the cost of the lives of many courageous patriots) DO NOT change according to the crime that is charged. Every citizen of this country, even a citizen charged with DUI, is entitled to the protections afforded by our Constitution.