The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officer’s reasonable “mistake of law” provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.
Facts: A surprising interpretation of state law.
Heien was driving a car which undisputedly had only one of its two rear brake lights working. Observing this, a member of a local sheriff’s department stopped Heien’s car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the officer cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion.
But on what basis could a court suppress? Well, in a decision later described by even the dissenting North Carolina justices as “surprising,” the state court of appeals ruled that, because the “antiquated” North Carolina statute requires only “a stop lamp” and one of Heien’s brake lights had in fact been working, the traffic stop was invalid. “[A]n officer’s mistaken belief that a defendant has committed a traffic violation is not,” said the appellate court, “an objectively reasonable justification for a traffic stop.”
Granting discretionary review, the North Carolina Supreme Court disagreed. It noted that, although one part of the state law required only “a” stop lamp, another required all “rear lamps” to be in working order. Thus, the state supreme court ruled, even assuming that the appellate court’s statutory interpretation was correct, the officer’s “mistake of law was objectively reasonable,” and a “reasonable mistake of law” can provide the “reasonable suspicion” needed to stop a car under Terry v. Ohio. The Court also emphasized “society’s interest in keeping its roads safe.” (Heien contends that the statute should define what the legislature thinks is safe, not officers who misinterpret it.)
Heien’s petition for certiorari noted that various state and federal courts have “split” on the general question whether “reasonable mistakes of law” can support Fourth Amendment intrusions (with the North Carolina Supreme Court having adopted the minority view). On Monday, the Justices – at least five of whom are former law professors – will bat this ephemeral question around, hypotheticals abounding, in the highest classroom in the land.
Ideology and amicus briefs
Along with merits briefs from Heien and North Carolina (which will be represented by Deputy Attorney General Robert Montgomery at oral argument), the federal government will also participate in the argument (represented by Assistant to the Solicitor General Rachel Kovner) as an amicus. Six other amicus briefs have been filed, including one on behalf of nineteen states and the District of Columbia supporting North Carolina’s view, and one filed by – among others — the Gun Owners Foundation in support of Heien. Ideology does not, apparently, forecast the preferred result on the surprisingly unsettled constitutional question: the Gun Owners Foundation brief argues, for example, that “the Fourth Amendment . . . cannot be diminished by modern judges who view traffic safety [as] more important than property rights.”
The parties’ arguments
Conceding that the Court has previously ruled that “what is generally demanded of the many factual determinations … regularly made by” law enforcement “is not that they always be correct, but that they always be reasonable,” Heien argues that mistakes of law should be (and have always been) treated differently. He argues (and both North Carolina and the federal government appear to concede) that the common law “has always presumed that officers know the law,” so that officers, for example, have long been liable for trespass even if they reasonably rely on an incorrect interpretation of a statute. “Ignorance of the law is no excuse,” argues Heien.
Both North Carolina and the federal government reply with an opposed set of “Founding-era cases,” in which customs officers erroneously relying on customs statutes were nevertheless found, by Chief Justice John Marshall no less, to be entitled to a “certificate of probable cause.” In this context, the Court indicated that “a doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact.” As for ignorance of the law, says the federal government, it remains “no excuse” for officers as well as private citizens when they are accused of criminal violations. But otherwise the maxim is inapt.
We’ll see what the Justices think (and as always, you should read the briefs in full to appreciate them fully). But because neither the common law nor the application of Founding-era statutes dispositively resolves the constitutional question, history – as is so often the case – appears to yield only a draw.
The parties move on to discuss the Court’s constitutional precedents. Here too there is law on both sides (which explains why lower courts have split). The government, I think, has more to work with, while Heien has the deceptively simple argument that stopping a car when there is no violation of law simply can’t be “reasonable.” But on balance, Heien’s answer to “why not?” lacks substantive specificity.
As both government briefs quickly note, in Michigan v. DeFillippo, the Court ruled that mistaken reliance on an ordinance later held unconstitutional “does not undermine the validity of the arrest.” Heien responds that DeFillippo was targeted more at the exclusionary remedy rather than whether the Fourth Amendment was itself violated, and he suggests that DeFillippo’s “language is a relic of an earlier time.” For those of us old enough to have been in law school when DeFillippo was decided, this is a rather unsettling view. And the federal government effectively shows that this is an unpersuasively selective reading of DeFillippo.
On this point, Heien might also plausibly argue – but does not — that relying on a statute which is only later declared unconstitutional is not a “mistake” at all. Rather, it is correctly relying on the law as it stood when an action was taken, even if that law is later reinterpreted. If DeFillippo (and also Krull, another “relying on law later declared unconstitutional” decision that cuts against Heien) are understood to be not really “mistake” cases at all, then Heien’s position improves.
Heien also argues that the law has traditionally distinguished between mistakes of fact and law. This is true — but as any criminal law professor knows, that traditional distinction is (as North Carolina and the federal government point out) elusive and semantically manipulable, and fails to provide a clear rule in most cases. Indeed – although no party appears to argue it – the Model Penal Code recommended fifty years ago that the fact/law mistake distinction be abandoned, and a number of jurisdictions have done so. North Carolina thus argues that a unitary rule – something like “any mistake, if reasonable, can support Fourth Amendment action” – is simpler to apply, as well as more consistent with the Fourth Amendment text, which after all forbids only “unreasonable” searches and seizures.
Heien’s brief turns relatively quickly to arguing that even if a “reasonable mistake of law” is permitted, it should be restricted to evaluating the “remedy” of suppression rather than whether there is a violation of the Fourth Amendment “right.” Does this show a lack of confidence in the initial argument, that a reasonable mistake of law is a substantive Fourth Amendment violation? I wondered for some time why Heien moved so quickly, and devoted so many pages, to this fallback position, because presumably if the officer relied “in good faith” on a reasonable mistake of law, no suppression would be ordered and Heien would still lose. But then I caught the point, barely mentioned in North Carolina’s brief, that North Carolina is one of the few states that has rejected the Supreme Court’s “good faith exception” to suppression. Thus Heien might well prevail if the Court accepts his “restricted to remedy” position.
And Heien’s remedy argument is not solely goal-directed. He also presents the rhetorically powerful view that “confining the relevance of an officer’s mistake of law to the remedy stage safeguards respect for the rule of law.” His brief concludes with the “simple proposition” that the Court “should demand of the officers … exactly what those officers … demanded of [Heien] – knowledge of the law.”
Argument predictions – You have to watch the race!
Of course, the Justices have had more hours, and more smart law clerks, to study all aspects of this case than has a lowly SCOTUSblog author. Thus oral argument is merely a “tip of the iceberg” result of tomes of bench memos,days of work, and “rehearsal” of potential questions, so that predicting its course is usually unproductive. It may well be that, in this case, a majority of the Justices finds one position more persuasive than the other: the Chief Justice’s repeated focus on “reasonableness,” together with Justice Scalia’s authorship of Illinois v. Rodriguez, in which the Court held that reasonable mistake of fact does not violate the Fourth Amendment, may even suggest the direction of that tilt. Certainly most of us “reasonable” folk would be surprised to learn that only one of our two brake lights needs to be working.
On the other hand, Justice Scalia has, in recent years, voted much more frequently with, rather than against, defendants’ Fourth Amendment arguments. And Justice Sotomayor, sitting in the “line” of Justice Brennan’s chair, seems to take some pride in not letting the government off easy. Meanwhile, the Court here decided to review a state court decision that affirmed the government’s view – they could have “let it go” if they thought that view was clearly correct. So, in the end, it’s what makes horse-racing and oral argument so attractive: you can’t know what will happen until you watch the race!