Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted. In its recent decision in Navarette v. California, the Court largely abandoned the requirement that this reliability be meaningful. It did so by holding that an anonymous 911 call without any impactful corroboration could supply the reasonable suspicion necessary to effect a seizure protected by the Fourth Amendment. This abandonment significantly increases the ability of the government to deprive a person of his or her freedom in conducting a seizure. Now, such a seizure can be effected without the government demonstrating that the individual who provided the information justifying the seizure is worthy of belief in any manner that has traditionally been used by the Court to show reliability. In its effort to justify this approach to reliability, the Court in Navarette misinterpreted rather egregiously its previous holdings on reliability in similar cases, and then offered new arguments to buttress its decision. These new arguments are unpersuasive in their application to the facts of Navarette and, even more troubling, are at odds with the principles embodied in the Fourth Amendment. Section I of this Article will examine the Supreme Court’s foundational decisions regarding the requirements for the government to show probable cause and the lower standard of reasonable suspicion for less intrusive searches and seizures. Section II will focus on the Court’s application of the reliability requirement for determining reasonable suspicion in the two cases that are directly on point with the facts and legal issues raised in Navarette. Section III will explore the Court’s holding in Navarette—examining the Court’s misapplication of the principles of previous holdings and the flawed reasoning used to justify the reliability of an anonymous, uncorroborated 911 call. One of the methods offered by the Court to show reliability involved the application of arguably related hearsay exceptions. Accordingly, Section IV will assess the propriety of using evidentiary principles in reaching determinations of constitutional law. The Article will conclude with a suggested approach for determining reliability in cases that rely on the presence of reasonable suspicion to justify a seizure protected by the Fourth Amendment.
Steven Grossman, Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures, 53 Am. Cr. L. Rev. 349 (2016).