Saturday, September 20, 2014

Cert Grant Series: Ignorance of the Law

SCOTUS convenes the 2014 term on October 6. This is a good time for a blog series on cert grants in criminal cases.

The first, set for argument on opening day, is Heien v. North Carolina. The issue is short:
Whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
This arises from a traffic stop where the law enforcement officer misinterpreted the traffic code. The car had only one working brake light, but the traffic code only required one. The LEO thought that the law required all brake lights to work. He stopped the car, and what followed was the usual police two-step, leading to a consent search and a bag of white stuff.

Mistake of Fact or Law? The distinction between mistake of fact and mistake of law can be determinative. The former is often forgiven if it was reasonable; but a mistake of law, according to a majority of courts, cannot be the basis for reasonable suspicion or probable cause. A stop based on a mistake of law offends the Fourth Amendment.

But the majority of the North Carolina Supreme Court, which Heien seeks to reverse, applied the more lenient reasonableness standard to this mistake of law, treating it the same as a mistake of fact. The Court decided that the officer's mistake of law was a reasonable one, thus it could serve as reasonable suspicion to justify the stop. The reasonableness, according to the court, excepted it from a Fourth Amendment rights violation. This holding places North Carolina in the minority.

The Tenth Circuit is in the majority. From the 2013 opinion in United States v. Nicholson, "Although an officer’s mistake of fact can still justify a probable cause or reasonable suspicion determination for a traffic stop, an officer’s mistake of law cannot. Failure to understand the law by the very person charged with enforcing it is not objectively reasonable.”  See, also, United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005). Said another way, the N.C. Supreme Court dissenters observed the "fundamental unfairness of holding citizens to the traditional rule that ignorance of the law is no excuse while allowing those entrusted to enforce the law to be ignorant of it.” 

Rights vs. Remedy. Reasonableness, or good faith, should not factor into the rights analysis; it belongs only to the remedial question. That is, if the stop based on mistake of law violated Heien's rights, then what was the relevance of the officer's mistake of law to the violation? The government tries to argue a reasonable-but-erroneous exception to the Fourth Amendment. Heien argues that reasonableness comes into play only after a rights violation is established and the court must fashion a remedy.

And this is an unworkable standard. Every motorist, including innocent motorists, would be subject to traffic stops based on police confusion over imprecise traffic codes. In his brief, Heien concluded, "It is the responsibility of law enforcement to learn and enforce those laws. The Fourth Amendment does not allow the police to reinterpret and broaden those laws according to officers’ own perceptions of what is necessary to protect public safety."

Jeffrey Fisher -- the Jeffrey Fisher who won  Blakely v. Washington and, just last term, Riley v. California --  is one of the counsel of record.

Petitioner's Brief here, and other information can be found here at SCOTUSblog.

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