The full implications of this Supreme Court decision will of course take time to reveal themselves, attorney Richard Blau points out. But "it is clear that going forward, police have extraordinary leeway to proceed with warrantless traffic stops where just about any rational basis exists to justify exigent action to curtail drunk driving." Indeed, a number of states have already adopted "de facto drunk driving exceptions" to the precedent that anonymous tips need corroboration. The US Solicitor General, 32 states and DC filed a friend of the court brief in this case arguing that "the compelling public interest in stopping drunk driving, balanced against the minimal intrusion of a car stop, makes it reasonable under the 4th Amendment for police officers to stop cars based on anonymous tips without any direct corroboration of the tip," if they confirm the identity and location of the vehicle they were tipped about. But even beyond that, the decision could mean, Richard suggests, "the new de facto standard for warrantless traffic stops is anything causing a police officer to be suspicious, regardless of source or lack of corroboration." (Our emphasis.) That seems to be what Justice Scalia's dissent suggests as well. Richard asks "is this all just paranoia?" He then quotes the passage above about risks to our "freedom of movement."

Richard points to some very rich irony from this case that will be of great interest to those who followed the last big alcohol cases from the Supreme Court: Granholm. "It is ironic that Antonin Scalia is calling Clarence Thomas, the author of the Navarette majority opinion, to task for stretching the facts of a case to fit a legal analysis that pretends to follow past precedents but in fact rewrites them. Ironic, because that is exactly the kind of jurisprudential gymnastics that Justice Thomas accused Justice Scalia and the other justices who signed on to the 5-4 majority decision in the Granholm v. Heald case nine years ago." Richard points to Thomas' dissent in that case which "lambasted the majority -- including Justice Scalia - for misreading history, ignoring jurisprudence, and stretching the evidence before the Court to produce a desired result that, at best, pretended to be an adherence to past precedent." Justice Thomas wrote then that the majority apparently agreed with the FTC and those who overturned state liquor regulations to accommodate direct shipping that it "would enhance consumer welfare." But he reminded that "the 21st Amendment and the Webb-Kenyon Act took those policy choices away from judges and returned them to the States…. The Court does this Nation no service by ignoring the textual commands of the Constitution and Acts of Congress. The 21st Amendment and the Webb-Kenyon Act displaced the negative Commerce Clause as applied" to state regulation of liquors and required upholding of Michigan's and New York's direct-shipment laws, Thomas wrote.  

Back in January, attorney Richard Blau flagged an interesting upcoming Supreme Court argument with potentially significant implications for DUI/DWI enforcement and adjudication. The Justices reviewed lower court rulings that upheld a stop and search of one driver based on a 911 call from another driver identifying the vehicle as one that had just run her off the road. Despite no other corroboration of drunk driving, police stopped the vehicle, smelled marijuana and arrested the driver and his companion. They ultimately pled guilty to transporting marijuana and served jail time. They were not cited for DUI/DWI. But they did argue that the stop violated their 4th Amendment protections against illegal search and seizure. Lower courts ruled that the call was enough to create "reasonable suspicion" for the stop. In yet another 5-4 ruling, the Supreme Court agreed. Interestingly, in this case the 5 were Thomas, Kennedy, Roberts, Breyer and Alito. Justice Scalia joined with Kagan, Sotomayor and Ginsburg on the losing side.

While an anonymous call itself "seldom demonstrates sufficient reliability," the Supreme Court previously held, it "may do so under appropriate circumstances." Given the "totality of the circumstances here," the call "bore adequate indicia of reliability for the officer to credit the caller's account," according to the majority. Therefore, he had reasonable suspicion "that the driver was intoxicated" (even tho the caller said nothing about alcohol). And that justified the stop. Weighing in favor that the call represented reasonable suspicion: 1) the claim that a specific vehicle had run the caller off the road (she had the license plate and description) "lends significant support to the tip's reliability"; 2) the "timeline of events" - the 911 call and the stop all happened within less than 30 minutes - added to the reliability; 3) the caller's use of 911 system itself, which can track calls and punish false reports, also adds "veracity." But does even a reliable tip create reasonable suspicion of "an ongoing crime such as drunk driving?" Yes, the majority ruled. Not all erratic driving behaviors "imply intoxication," they admit, but "certain driving behaviors" are "sound indicia of drunk driving." In this case, the report of being run off the road "bears too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness," the majority found. Such behavior "suggests lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues." And that's enough for reasonable suspicion. The majority further dismissed the notion that a lack of any other suspicious conduct by the driver would dispel the reasonable suspicion of drunk driving.

Justice Scalia begins his blistering dissent by warning that although the majority "purports to adhere" to previous Supreme Court cases in its "departure from our normal 4th Amendment requirement that anonymous tips must be corroborated," we should "be not deceived." Scalia points out the officers "knew nothing" about the tipster, and anonymity is especially suspicious. His response to other reasoning by the majority includes phrases such as "So What?" and "proves absolutely nothing in the present case." The tipster did not even accuse the driver of being drunk, he adds, and argues the alleged incident could have happened for other reasons (including talking on a cell phone, an "intense sports argument" or "some personal animus, or hostility to" the tipster's "Make Love, Not War bumper sticker"). "I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving." (Scalia's emphasis.) "It gets worse," Scalia notes. The officer followed the car for 5 minutes and during that time, the Plaintiff's "driving was irreproachable." So the tip "not only went uncorroborated; it was affirmatively undermined." Scalia sums up by noting the majority "serves up a freedom-destroying cocktail consisting of two parts patent falsity." The first: anonymous tips are reliable as long as they correctly identify a car and its location. Second: "a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken driving." With this opinion, "all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false of a single instance of careless driving." Searches without probable cause aren't allowed to "prevent and detect murder," Scalia notes: "We should not do so for drunken driving either." Ref 1  

Still lotsa folks talking about craft leaders' tuff comments on state franchise laws at CBC and elsewhere. Here are guest columnist Nestor's thoughts on the issue:

One thing the fractionated and contentious beer industry does not need is further fractionalization and contention. But Brooklyn Beer prexy Steve Hindy's recent op-ed in the New York Times certainly looked like the announcement of small brewer versus wholesaler hostilities. Speaking presumably on behalf of the Brewers Association (on whose Board he serves and whose PR firm, one is told, contributed to the op-ed), Steve told the world that small brewers shouldn't be held captive by uncaring/lousy/any wholesalers. Suppliers should be free to move as and when they saw fit (the piece mentions, but does not explicitly endorse fair market value compensation).

NBWA head Craig Purser quickly responded in the same paper. Craft brewers were up 18% because of the heroic efforts of wholesalers. What was Mr. Hindy's problem? Mr. Purser's language was gentle; his tone was that of puzzlement. But he basically said "pound sand."

Various BA eminents continued the assault at CBC (the craft industry's annual confab). BA chairman Gary Fish said the association "fully supported" the op-ed. Director Paul Gatza made it clear that the BA believed in franchise laws…for other people, namely large brewers. He then threatened "more dramatic changes" should wholesalers not fall into line.

Seems to me that we should discuss three questions. First, who is right or at least righter? Second, what is likely to happen if the wholesalers do not capitulate? Third, what should happen?

"Right," of course, tends to be a subjective term dependent on whose bovines are being mutilated. Still, one has to observe that beer distributorships are one of only two US businesses that enjoy such franchise laws. (The other, of course, is automobile dealerships, who are not at all supportive of new manufacturer Tesla's radical proposal that it sell cars directly to consumers.)

So, who is right? Well, Hindy's article had some inaccuracies, and the BA may have been foolish to publicly announce its game plan, but the BA's major points make sense. Brewers, other than ABI in many states and micro outfits that have chosen to compete in very small geographies, need wholesalers - though, arguably, no more than manufacturers in many other industries do. But where is the logic that translates that need into contracts that stretch into perpetuity? True, wholesalers can be a critical determinant in a craft's success. But, again, why should this translate into perpetual brand rights?

Second, what will happen? Well, there is every chance that the crafts will win this battle over time. As the number of local wholesalers continues to shrink and the number of local crafts continues to explode, it will be small brewers who will increasingly have the ears of state legislators. But this could take quite some time; in many states, many years. Wholesalers may see no reason to give in quickly unless the crafts roll out a Doomsday Machine of some sort. (The BA's "more drastic changes" - suppliers up to 20% of a wholesaler's volume? No compensation? A blacklist? A ban on CBC attendance?)

If, by the way, small brewers are no longer bound by franchise laws, wholesalers can replace such franchise protection with, say, three-year or longer contracts with no (or with very expensive) early escape provisions as well as end-of-term exit fees. Middle-tier players in many other industries have successfully employed such agreements for many years.

Finally, what should happen? I'll vote for some form of the BA's "proposal," perhaps with a 3% (by volume) or 5% (by value) supplier ceiling. And with equitable compensation for brand-losing wholesalers and perhaps a formula for determining payment (as opposed to the specter of transferring a year of a small craft's margins to its attorneys). Major suppliers get largely excluded. But they should be allowed to move small brands, including newly acquired ones.

And let's get this done soon. Then maybe we can all get back to selling beer. Which, as you may have read, hasn't been going that well in recent years. The spirits folks, reading about the past weeks' contretemps, must be laughing their shot glasses off.