(CN) – U.S. Supreme Court Chief Justice John Roberts and Justice Antonin Scalia on Tuesday challenged the high court’s refusal to take up a rule out of Virginia that requires officers to personally observe erratic driving before they can stop a suspected drunken driver based on an anonymous tip. In their 5-page dissent, the justices said the court’s refusal to hear the case gives “drunk drivers ‘one free swerve’ before they can legally be pulled over by police.”
Without comment, the high court on Tuesday refused to take up an appeal involving Joseph Harris, who was pulled over by Richmond, Va., police in 2005 based on an anonymous tipster who accused him of driving while intoxicated.
The issue was whether the officer was justified in stopping Harris and giving him a sobriety test based on the tip, or whether he should have waited until he saw the driver driving erratically before making the stop.
The Virginia Supreme Court voted 4-3 to overturn Harris’ drunken driving conviction, finding that that the arresting officer failed to independently verify the anonymous tip before stopping him in violation of Harris’ Fourth Amendment rights.
“A sharp disagreement … has emerged among federal and state courts over how to apply the Fourth Amendment” when officers make a drunken driving arrest based on an anonymous tip, the justices said in their dissent. They added that the issue “has deeply divided federal and state courts” and should be addressed by the high court.
“The effect of the rule … will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police,'” the judges wrote of the Virginia Supreme Court’s decision.
“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,” they wrote.