Chief Justice Roberts, joined by Justice Scalia, issued an opinion dissenting from the Supreme Court's denial of certiorari in VIRGINIA v. JOSEPH A. MOSES HARRIS, JR. (08-1385). The dissent can be found here. The dissent states:
By a 4-to-3 vote, the Virginia Supreme Court below adopted a rule that will undermine such efforts to get drunk drivers off the road. 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.
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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 theywere powerless to pull him over, even for a quick check.
Maybe the decision of the Virginia Supreme Court below was correct, and the Fourth Amendment bars police fromacting on anonymous tips of drunk driving unless they can verify each tip. If so, then the dangerous consequences ofthis rule are unavoidable. But the police should haveevery legitimate tool at their disposal for getting drunk drivers off the road. I would grant certiorari to determine if this is one of them.
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