Roberts wanted the Supreme Court to review the lower court ruling but he failed to persuade enough of his colleagues. The court declined to hear an appeal from Virginia officials who had their drunk driving conviction of Joseph A. Moses Harris, Jr. thrown out by that state's Supreme Court. Police were notified by an anonymous tipster that Harris was driving intoxicated, but the arresting officer did not see Harris break any traffic laws.
The majority of the justices did not say why they did not take the case, but Roberts in a written dissent, joined by Justice Antonin Scalia, said the Virginia court's decision will put people in danger.
"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," Roberts wrote.
Roberts noted that close to 13,000 people die in alcohol-related car crashes a year, which equals to one death every 40 minutes.
Roberts said a majority of the courts have said it doesn't violate the Fourth Amendment protection against unreasonable search and seizure to pull over drunk drivers based on anonymous tips from programs like the "Drunk Busters Hotline."
But some courts, including some in Wyoming, Massachusetts and Connecticut, have agreed with Virginia in saying that police must see a traffic violation before pulling over a suspected drunk driver based on an anonymous tip.
The Supreme Court should have stepped in and made the rule clear, Roberts said.
"The stakes are high. The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can be legally pulled over by police," Roberts said. "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 they were powerless to pull him over, even for a quick check."
Richmond, Va., police were called on the morning of Dec. 31, 2005, and told that an intoxicated Harris was driving a green Altima down the street. A police officer saw Harris drive slowly through an intersection where he didn't have to stop and put on his brake lights well in advance of a red light.
Harris then pulled over to the side of the road, where the police officer smelled alcohol on his breath. Harris also failed the field sobriety tests, but the police officer did not see him break any traffic laws.
Harris was convicted of driving while intoxicated, but the Virginia Supreme Court threw out his conviction. The court said since the police officer did not see erratic driving behavior like swerving, there was not a reasonable suspicion of criminal activity to warrant the stop.
Harris's lawyer said the Supreme Court should let that decision stand because "society's reasonable expectation of privacy requires some facts to support the tipster's allegation that the driver was intoxicated."
If that's correct and the Fourth Amendment bans the use of anonymous tips on drunk drivers without police verification, "the dangerous consequences of this rule are unavoidable," Roberts said. "But the police should have every legitimate tool at their disposal for getting drunk drivers off the road. I would grant certiorari to determine if this is one of them."
The case is Virginia v. Harris, 08-1385.