Mistakes of law, rights and remedies
You're driving down the road. A cop stops you because one of your brake lights isn't working. You tell him you thought the law only required you to have one working brake light. It requires two. How far do you think your argument's going to go?
You're driving down the road. A cop stops you because one of your brake lights isn't working. It turns out that the law only requires you to have one working brake light. Good stop or bad?
SCOTUS kicked off its CCXXVth season on Monday with oral argument in Heien v. North Carolina, on that precise issue. And from the looks of it, ignorance of the law is not two sides of the same coin.
The question presented to the court was a simple one:
Whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
But law, like life, isn't simple, as we found out just minutes into the argument. The 4th Amendment prohibits "unreasonable" searches and seizures, and while the Court has developed rules on that - a warrantless search is presumptively "unreasonable" unless it falls under one of the "clearly established" exceptions to the warrant requirement, for example - "reasonableness" is still the keystone of the analysis.
So was the officer's decision to stop Heien's vehicle a reasonable one? The North Carolina statute had been written back when the Model T was the must-have driving machine, and it required only a "stop lamp." The officer stopped Heien because only one of the lights was working, and found drugs. The intermediate state appellate court found that one light was enough, and concluded that "an officer's mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop." Even the dissenters in the state supreme court found this decision "surprising," and a majority of that court found that the officer's "mistake of law" was objectively reasonable, and that "a reasonable mistake of law" could provide the reasonable suspicion to make a stop under Terry.
Heien's attorney, Jeff Fisher, a seasoned Supreme Court advocate, had a decent argument that the state supreme court got it wrong, but was soon detoured into another discussion: even assuming that there was a 4th Amendment violation, was exclusion the appropriate remedy? Back in 1984, in Leon v. US, the Court had created a "good faith" exception to the exclusionary rule for searches with a warrant.
That was understandable: the exclusionary rule exists to deter police misconduct, and if an officer went to the trouble of getting a search warrant, which is what the 4th Amendment commands him to do, why should the evidence be excluded because the magistrate screwed up?
But Leon's been expanded beyond searches with a warrant. Back in 2009, the Court held in Herring v. US that the fact that a person was arrested under a bad arrest warrant (the police should have pulled it, but didn't) didn't invalidate the stop. The decision was accompanied by Roberts' lengthy screed about the substantial "societal costs" of the exclusionary rule.
But there's another catch: as a matter of state constitutional the North Carolina courts don't have a good faith exception to the exclusionary rule. Fisher wants SCOTUS to rule that there was a 4th Amendment violation, and then remand the case back to the North Carolina courts, where he can get them to throw out the search because there's no good faith exception to save it. Whether anybody's going to buy deciding the right under Federal law but the remedy under state law is open to debate.
A few thoughts. First, this is a bad case on the facts (for defendants) to make broad statements of law; as I mentioned, the appellate court's determination of the law was unexpected, and the officer's contrary belief was hardly unreasonable. But what if the officer stopped a vehicle because he incorrectly believed it was against the law for someone to put on his turn signal and not turn? That was the situation three years ago in State v. Fears, and the 8th District had no trouble tossing the search:
Law enforcement officials have a certain degree of leeway to conduct searches and seizures, but the flip side of that leeway is that the legal justification must be objectively grounded. An officer cannot have a reasonable belief that a violation of the law occurred when the acts to which an officer points as supporting probable cause are not prohibited by law.
I think "objective" is a key factor here. The courts have consistently held that a police officer's decisions of whether to make a stop or search are viewed objectively: he can make a traffic stop because the license plate isn't illuminated, even if his subject motivation is to search for drugs. That should cut both ways.
Second, the good faith exception is becoming more amorphous as it becomes unmoored from Leon's original justification. A few years ago, the Next Big Thing for prosecutors was to argue that Herring established a good faith exception for warrantless searches: the evidence wouldn't be suppressed unless the police were guilty of "gross negligence" or "egregious misconduct." As I explained when I initially discussed that, expanding good faith in that manner would be a disaster; it would add yet another level of murkiness to an area of law which lacks much clarity to begin with.
I'd expect a decision upholding the search, but on narrow grounds. Frankly, I think that's the best we can hope for.