Should Drivers Get One Free Swerve?

Posted On February 19, 2014 by Daniel Koewler

That was the question once posed by Chief Justice John Roberts: Do drivers get "one free swerve| before the police can pull them over? Or is an anonymous tip of impaired or reckless driving enough to justify the stop?

Last October, Mark Sherman with the Associated Press gave us this Roberts quote:

|The stakes are high. [â?¦] It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.|

Roberts said this after the Supreme Court denied cert. on an appeal out of Virginia involving a drunk driver outed by an anonymous tipster. The driver in that case appeared to have won his or her argument.

But just last month the Supreme Court considered Navarette v. California, another anonymous tipster case, in which a speeding silver Ford pickup (with four large bags of marijuana inside) apparently ran another vehicle off the road.

The driver of that other vehicle dialed 911.

As we've previously discussed, what happened next is why the case ultimately made its way to the Supremes: Even though the cops did not personally see the pickup driver commit any traffic violation â?? which, generally speaking, is required to justify a stop â?? the cops pulled him over anyway. The cops, in other words, pulled him over based on the 911 call and nothing else.

The issue, according to, is whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.

In Navarette, the police apparently followed the silver Ford pickup for a few minutes â?? but saw no traffic violation â?? before they flashed lights and sirens. The fact that police saw no evidence of dangerous driving indicates that the pickup driver posed no immediate threat to others on the road, despite what the anonymous tipster said.

But given what Roberts said earlier about the danger of the |one free swerve| that gets someone killed, it's clear that the Supremes may decide to carve out an exception to the rule requiring reasonable suspicion. We now wait for the Court's opinion.

Let's hope that the Court decides not to do so. As the National Association of Criminal Defense Lawyers in its amici curiae brief said, such an |irregular driving| exception â?? one carved out just for suspected drunken or reckless drivers in which any unknown tipster can rat them out â?? would quite possibly |swallow| the Fourth Amendment whole.