Justice Scalia dissenting yesterday in the Fourth Amendment anonymous tip case, Navarette v. California, posited that the "proportion of the hun dreds of thousands—perhaps millions—of careless, reck less, or intentional traffic violations committed each day...attributable to drunken drivers" is roughly .1%.
Apparently, .1%% accuracy isn't sufficient to make out reasonable suspicion in his mind. He'd seemingly require between 5% and 10% accuracy. Even those numbers strike me as an awfully high tolerance for error. In Philadelphia, the city entered into a consent degree regarding stop-and-frisk policies when the existing procedure yielded an 8.4% arrest rate.
I wonder whether Justices Ginsburg, Kagan, and Sotomayor were in agreement about Scalia's proposed level of suspicion he rates sufficient to be "reasonable."
On the other hand, I was cheered to see Scalia being (what seemed to me) realistic about the odds of a random act of reckless driving being related to drunkeness. The broader social anxiety over drunk driving sometimes threatens to obscure reality. Scalia's point reminded me a bit of Justice Clark's dissent in Taylor v. Supreme Court, 24 Cal.3d 890:
The evil motive requisite to punitive damage is simply not shown by driving while intoxicated. Rarely will the defendant have been drinking for the purpose of injuring someone, with knowledge that his drinking will injure the plaintiff, or even with knowledge that his drinking will probably injure someone. While driving intoxicated is dangerous, injury is not probable. Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated.