October 21, 2009

       If the cops get a tip that so-and-so is driving drunk, have they the right to stop him?  Well, maybe not.  On December 31st, 2005, Richmond, Va. police were called and told that Joseph Harris, Jr. was driving drunk.  The police spotted him.  He drove slowly through an intersection and braked well before reaching a red light.      The cops pulled him over anyway and smelled alcohol on his breath.  He also  failed a field sobriety test.  So, okay, he was drunk, and was convicted for it.  But wait!  The Virginia Supreme Court threw out the conviction, saying that if the police didn't see any evidence of drunk driving--erratic behavior, a sudden swerve, whatever--they had no authority--no probable cause--to stop him in the first place.      Not surprisingly, this odd case reached the U.S. Supreme Court. The majority of the Justices sided with the Virginia court, voting not to to hear Virginia officials' appeal. They didn't say why, they usually don't.      But Chief Justice John Roberts, joined by Antonin Scalia, dissented.  In his dissent, Roberts made a pretty good point.  "The decision," he wrote, "commands that police officers following a driver reported to be drunk do nothing until they actually see the driver do something unsafe on the road--by which time it may be too late."  State courts have ruled both ways on this.  Roberts thought the Supremes should have stepped in.  "The effect of the rule," Roberts wrote, "will be to grant drunk drivers 'one free swerve' before they can be legally pulled over...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."      You could argue both sides of this, I think.  What about you?
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