Drunken driving takes a terrible toll, but public safety isn't the only consideration in dealing with it. There's also a need to balance people's rights against the needs of law enforcement.
U.S. Supreme Court Chief Justice John Roberts recently tried unsuccessfully to redraw this fine line clearly in favor of the police. He wrote a dissent, joined by Justice Antonin Scalia, to the 7-2 decision of the court not to hear an appeal from Virginia officials who wanted to overturn a state Supreme Court ruling that had thrown out the conviction of an intoxicated driver, Joseph A. Moses Harris Jr.
The problem was that the driver was arrested after an anonymous tip that gave much detail about the car and driver. The arresting officer did not personally witness any drunken driving, although the driver was obviously drunk when he was pulled over.
The court overturned the driver's subsequent conviction because the officer did not independently verify that the driver was driving dangerously and thus violated the Fourth Amendment's prohibition on unreasonable searches and seizures.
The officer's action, of course, did result in one fewer drunken driver on the road -- and that is good. But if the Fourth Amendment were largely ignored, the police might be able to clear the roads of them entirely and America would be a safer place but one that was less free.
In his dissent, Chief Justice Roberts said a rule requiring police officers to do nothing until they see a drunken driver do something unsafe would have the effect of granting drunken drivers "one free swerve" -- one that could potentially kill people.
This seems a bit far-fetched; drunken drivers are usually fairly obvious and it would be unlucky indeed if their first swerve killed someone. As far as theoretical scenarios go, a more likely effect of the chief justice's view might be to encourage a snitch society where people's private enemies -- ex-spouses, disgruntled colleagues -- would be eager to settle old scores by anonymously calling police.
Although Chief Justice Roberts' position on this might not be our own, his plea for the court to hear this case was probably right. As he explained, some states have the same rule as Virginia (Pennsylvania is among those that does require probable cause beyond a tip), but many do not.
Are these states violating the Fourth Amendment? It would have been helpful for the court to throw some light on the question.