Friday, May 1, 2015

Ignorance of the Law--by the Police--IS an Excuse (Part 2: Supreme Court's HEIEN decision)

Consider this:
A police officer in a patrol car notices that the car in front of him has only one of the two brake lights working.
So the officer alerts the driver to pull over.
Has the officer acted reasonably?
Is it reasonable for an officer to stop a driver when that officer notices a potentially unsafe condition?
Stated otherwise, would we think it unreasonable if an officer stopped us because he saw that a brake light or a headlight or a turn signal on our car was not working?
Or would we think it made sense for an officer to do so and to tell us the light is not working and we should get it fixed?

In Heien v. North Carolina, a much talked about case decided by the Supreme Court a few months ago, an officer did stop a driver because he did notice that one of the driver's brake lights was not working.

Is it really a difficult question whether such a stop is reasonable? Or should this have been a pretty easy case? Simply put, is it reasonable, or is it unreasonable, for a police officer to stop a driver when the officer notices a potentially unsafe condition in need of repair?

Well, the Supreme Court in Heien didn't take that easy, straightforward route.
No, instead it literally made a big federal case out of the matter.
Indeed, a federal constitutional case.
The Court focused on whether it is valid for police officers to stop automobiles when the police--incorrectly--believe a driver is breaking the law.
And the ramifications of the Court's focus and decision are considerable.

In short, instead of simply deciding that it's fine for a police officer to stop a car when the officer sees a potentially unsafe condition--like a broken brake light--the Court chose to render a much more controversial ruling: that it's perfectly fine for an officer to pull a driver over for breaking the law even when the officer is wrong, More bluntly, even if the officer is ignorant or mistaken about the law. And, yes, the ramifications are considerable.

But first, a little background on the Heien case.

A very old state law in North Carolina required only that a vehicle be “equipped with a stop lamp on the rear." There were other provisions of the state's law that created some ambiguity. But the state courts below viewed the law as requiring only one brake light, not two. The Supreme Court, in deciding the validity of the police stop in Heien, chose to address that state law and to render a decision excusing the officer's ignorance or mistake about it.

Never mind the unsafe condition of the car. Never mind the reasonableness of a police officer stopping a car when there's an unsafe condition in need of repair. No. Instead, focus on the officer's ignorance or mistake about the law. Then forgive that. And then, go further, and hold that a stop is constitutionally valid even if based on an officer's ignorance or mistake about the law.

Yes, excuse the officer's ignorance (more gently spoken of as a "mistake") about the law. So what if a police officer is ignorant or mistaken about the law? If that ignorance or mistake is understandable--i.e., if it's not "unreasonable"--then the stop of the automobile is perfectly fine.

But one might ask: so what's the big difference? Whether it's perfectly fine for the police to stop a car for an unsafe condition, or it's perfectly fine to stop that car based on the officer's ignorance or mistake of the law--what's the difference? Same result, no?

NO, not the same at all!
The ramifications really are considerable.
The consequences are far different.
The degree of police intrusion permitted is far different.
Those differences are, in fact, drastic.

Here's why:
A stop for a potentially unsafe condition, without more, would simply allow a police officer to inform the driver and, perhaps, ask to see the driver's license and registration.
But a stop for violating the law--and after the Heien decision, even when the police officer is wrong about the law and there really isn't any violation at all--allows the officer to do much much more.

A stop for violating the law--and again, now, after the Heien decision, even a stop for something a police office mistakenly believes violates the law--allows the officer to do all of the following:
  • arrest the driver, even for a very minor traffic offense the officer believes the driver committed
  • search the driver incident to that arrest, even without a warrant or any actual need to do so
  • also search any so-called "grabbable" area, which the Court deems to include the entire passenger compartment of the car--again, without a warrant or any actual need to do so (unless the driver is shackled in the back of the patrol car and, thus, metaphysically incapable of reaching into his car)
  • handcuff the driver and take him to the police station "for processing"
  • place the driver in a jail cell during the "processing"
  • subject the driver to a strip search--yes, a strip search, including a close inspection of his genitals--if he's placed in a jail cell with others during that "processing"
All that, even for a very minor traffic offense that an officer believes a driver has committed.

I know, many readers are now saying that this is an exaggeration. That this cannot be so. That the Supreme Court could not possibly permit this kind of excessive, unnecessary, wholly arbitrary interference with someone's liberty and invasion of privacy. My students don't believe it either (until they read the Supreme Court's decisions, that is). Most Americans, I am sure, would not believe it. Many, if not most, I'm sure, would be aghast.

Unfortunately, all of the foregoing is just what the United States Supreme Court does permit. All of the foregoing is just what the Supreme Court says is perfectly fine under the Constitution.
(N.B., far better courts in this country, such as the New York Court of Appeals and other state high courts enforcing their own state constitutional protections, do not permit such atrocious--yes, atrocious in my view--intrusions and invasions based on minor offenses, or without some actual necessity.)

Yes, the Supreme Court--especially in recent years when the Court has been dreadful (yes, dreadful in my view)--has made clear that even the most minor offenses permit these intrusions and invasions. And yes, I know I'm repeating myself. But that's only because, after a career of studying Supreme Court decisions, I still find it astonishing--as in appalling--that the supposed "ultimate guardian of our liberties" would show so little concern for basic search and seizure protections guaranteed by the Constitution.

OK then, what about actual examples of such Supreme Court decisions?
That's exactly what we'll look at in the next post.
Warning: hold onto your seats, because it will be hard for most readers to accept that this is the current state of constitutional law under our Supreme Court today.