There is nothing rare about the U.S. Court denying a petition for certiorari; it is the grant of a petition that is unusual. But a passionate dissent by two justices from a denial is rare.

The issue is one which has sharply divided courts around the country — whether a police officer has reasonable suspicion to stop a motorist based solely on a citizen’s report of a drunken driver, without any independent corroboration by the officer.

In the case before the Court, Virginia v. Harris, No. 08-1385, an anonymous tipster reported to Richmond police that Joseph Harris was driving while intoxicated. The tip described Harris, his car and the direction he was traveling in considerable detail.

An officer pulled Harris over without personally witnessing any erratic driving or traffic violations. The trial court and Virginia Court of Appeals upheld the legality of the stop, but the Virginia Supreme Court reversed, in a 4-3 decision. (668 S.E.2d 141 (Va. 2008).)

The Commonwealth of Virginia petitioned for certiorari, but the court denied review on Oct. 20. Chief Justice John Roberts dissented, in an opinion joined by Justice Antonin Scalia.

Justice Roberts complained, “The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late (emphasis in original).”

After a lengthy discussion of the hazards of driving while intoxicated, the dissent noted a split between courts.

The majority of states, the dissent states, permit stops of allegedly drunk or erratic drivers, even when the officer does not personally witness any traffic violations before conducting the stop. Among the opinions cited is State of Wisconsin v. Rutzinski, 2001 WI 22, 241 Wis.2d 729, 623 N.W.2d 516.

Other states, including Virginia, require officers to confirm the tip through their own independent observation.

The dissent concluded, “The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police. 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.”

Case analysis

It’s not wise to try to read too much into a denial of certiorari. Still, in light of the conflict in authority among the states, it’s hard to ignore that the case clearly meets the criteria for an issue the Supreme Court should resolve.

Defense attorneys have to consider that perhaps the reason the court didn’t take the case is that seven justices believe the Virginia Supreme Court got it right, and it is Wisconsin and other states that have it wrong. Presented with a case that came out the other way, perhaps the court would take the case.

So even if success in state court is hopeless, when presented with an appropriate case defense attorneys should use Virginia’s petition for review as guide for seeking review before the U.S. Supreme Court.

However, it needs to be noted that Roberts’ dissent somewhat misrepresents the law in Wisconsin.

The Rutzinski case cited in the dissent did not involve an anonymous tip. Instead, the tipster gave his name, a fact the Wisconsin Supreme Court found to be highly relevant in upholding the stop, because by doing so, the informant exposed himself to possible arrest if the tip was false.

The opinion of the Virginia Supreme Court likewise discusses the greater reliability of tipsters who give their names. So Virginia and Wisconsin may not be as far apart as the Roberts dissent suggests.

Nevertheless, much of the Wisconsin Supreme Court’s discussion of the issue in Rutzinski is equally applicable whether the tip was anonymous or not: “Rutzinski responds that Officer Sardina nonetheless should have waited until he personally observed signs that Rutzinski may have been intoxicated before initiating the traffic stop. But this argument ignores the tremendous potential danger presented by drunk drivers.”

Attorneys seeking to preserve this issue should also be aware of a recent U.S. Supreme Court opinion which the Virginia petition, understandably, does not mention, but which would be valuable to a defendant.

In Begay v. United States, 128 S.Ct. 1581 (2008), the Court held that driving while intoxicated is not a violent felony under the Armed Career Criminal Act.

Justice Samuel Alito wrote a dissent from that, concluding that the offense is so dangerous that it should be considered a violent felony. Ironically, though, statistics in the dissent actually support a defense argument that a police officer should not be able to stop a motorist without independently corroborating the report with erratic driving.

Alito writes, “‘it has been estimated that the ratio of DUI incidents to DUI arrests is between 250 to 1 and 2,000 to 1.” If 2,000 incidents of drunk driving occur to every arrest, the number of incidents per every accident must be much higher. Accordingly, the risk presented by a 10th, 11th, and 12th DUI conviction may be viewed as the risk created by literally thousands of drunk-driving events.”

In other words, if you ignore the rhetoric, and look at the statistics, the actual risk that an accident will occur during the short period the officer independently corroborates the tip is miniscule. This is especially the case because the more intoxicated the driver is, and the greater danger he presents, the sooner any impairment will manifest itself.