Ignorance of the Law--by the Police--IS an Excuse (Part 5: GUTHRIE's Ramifications & Implications)

(Sorry for the delay in getting to Part 5--been busy away and then buried in grading exams.)

So what should one make of the New York court's ruling in Guthrie?

1) What are the ramifications?
Specifically, if a traffic stop based on a police officer's mistake is still valid, then what other police actions are valid after the stop?
2) And the implications?
Specifically, what is the significance of the Court of Appeals' following the Supreme Court's Heien decision and, more than that, relying on that federal constitutional ruling to decide a state search and seizure law issue?

We'll look at "ramifications" in this post; "implications" in the next.

But first, let's recall the Court of Appeals' Gutherie decision.
An officer stopped a car that he saw run a stop sign. Uunbeknownst to the officer, the sign had not been registered and, therefore, was unauthorized. Nevertheless, the officer's stopping the car was upheld as reasonable and, consequently, the evidence obtained from the stop--that the driver was intoxicated--could be used against him.

As already discussed, it is not at all clear that the officer's mistake or ignorance was about law, as opposed to the fact of non-registration. (See part 4.) But the Court of Appeals did state unequivocally that a police officer's reasonable mistake of law was excusable. So unless or until New York's high court issues a contrary ruling in a future case, it's safe to assume that the current law in the state is just what the Court declared in Guthrie.

Now, what about the ramifications? What else is an officer authorized to do once he's makes a stop based on such legal ignorance or mistake?

We've previously seen what the United States Supreme Court allows incident to automobile stops. (See part 3.) As long as the stop is valid--and after Heien, a stop based on a "reasonable" mistake of law by the officer is still valid--the officer may arrest the driver. That's true for even the most minor traffic offense. Then, incident to that arrest, the officer may search the person. He may also search the interior of the automobile. The officer may take the person down to the station for processing. The person may be held in a jail cell during the processing. He may even be strip searched for "security."

Yes, all that when a driver is stopped, regardless of how minor the offense--e.g., a seat-belt violation or failure to pay a traffic fine. (See the discussion of Atwater v. City of Lago Vista, 2001 and Florence v. County of Burlington, 2012 in part 3. )

Yes, the Supreme Court takes a bright-line approach--a rather extreme one at that. Even for the most minor, non-violent offense: arrest + search of the person + search of the car + taken to the station + placed in a jail cell + strip-searched. The Court allows all of that without any consideration whatsoever of the actual offense.
(If you find this hard to believe, welcome to the club. But it's absolutely true. Have I already said that the current Supreme Court is dreadful and its search & seizure case law atrocious?)

One last point about the Supreme Court. In these matters, that Court only has the authority to say what the federal Constitution allows or prohibits. Stated otherwise, that Court can only say whether certain police conduct is allowed under the federal Constitution, or is not allowed because it violates federal constitutional search and seizure rights.

So, in allowing all of the intrusions and invasions that we've been discussing, the Supreme Court is simply saying that search & seizure rights under the federal Constitution are not violated (in its view) and, therefore, that states can allow the same if they choose.

Yes, states can allow the same if they choose. States will not be violating the federal Constitution if they allow their officials to engage in that same conduct. They can allow that police conduct under their own law or not, however they choose. The federal Constitution will not be offended either way (in the current Supreme Court's view).

Ahhhhh! So that's why many state high courts render rulings that are completely different from those of the Supreme Court. As long as those courts don't violate the federal Constitution, they are free to do as they choose. And since the Supreme Court says that none of that aforementioned police stop and arrest and search conduct violates the federal Constitution--i.e., it's all allowed--the state high courts can allow it or prohibit it, however they choose, under their own state law.
(I'm repeating myself because I know that this basic principle of our federal system, that the Supreme Court does not necessarily have the last word, is foreign to many--including to many judges.)

All of that is by way of introduction to the fact that New York's high court has very different rules, under its own case law, than the Supreme Court. In fact, state courts as diverse as the high courts of Vermont, New Jersey, Pennsylvania, Iowa, Arkansas, New Mexico, Nevada, Oregon, etc., etc., etc., have protected search and seizure rights with their own state case law much more so than the Supreme Court does under its federal constitutional case law.

The New York Court of Appeals has often been in the forefront of protecting search & seizure rights as a matter of its own state case law. It has developed a body of search & seizure jurisprudence that in many regards is much more protective than what the current Supreme Court requires as a matter of federal constitutional law. Indeed, many state high courts have adopted search & seizure principles verisimilar to those advanced by the Court of Appeals.

One of those principles--and the one most pertinent to our discussion--is that there must be some reasonable relation between the offense committed and the police intrusions allowed. In short, there must be some actual justification for what the police do.

So, for example, consider a seat belt violation. We've seen that the Supreme Court says that the federal Constitution allows an arrest + search + taking to the station etc., etc., etc. (Again, see the discussion of Atwater v. City of Lago Vista, 2001 in part 3. ) The New York Court of Appeals, on the other hand, says "what's the justification for anything other than a ticket?" "Why is an arrest necessary?" "What are the police searching for that has anything to do with the seat belt violation?" "And is a trip to the station necessary?" "Holding in a jail cell?" "Strip search--any relation to the offense?"

This has been a fundamental characteristic of New York Court of Appeals search & seizure case law: What's the connection to the offense? What's the actual justification? There needs to be a justification or the arrest, search, etc. is not permitted.

Read the following selections from a few of the relevant Court of Appeals precedents over the years. I am confident that readers will find these statements of New York case law infinitely more sensible, and much more serious about search & seizure rights than what the current Supreme Court has been rendering:

There is no question, and the entire court agrees, that a police officer is not authorized to conduct a search every time he stops a motorist for speeding or some other ordinary traffic infraction....A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity....
People v. Marsh (1967), Chief Judge Stanley Fuld

[A] valid arrest for a crime authorizes a warrantless search...when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made (as possibly containing contraband or as having been used in the commission of the crime) or there is reason to believe that a weapon may be discovered or access to means of escape thwarted. 
People v. Belton, 1982, Chief Judge Lawrence Cooke

The Supreme Court has interpreted the United States Constitution to permit if not require the drawing of a bright line for reasons of efficiency between permissible and impermissible searches, even though the result is occasionally to forbid a reasonable search or permit an unreasonable one...We have interpreted the New York Constitution to require that the reasonableness of each search or seizure be determined on the basis of the facts and circumstances of the particular case.
People v. Smith, 1983, Judge Bernard Meyer

This court has declined to interpret the State constitutional protection against unreasonable searches and seizures so narrowly [as has the Supreme Court]. Under the State Constitution, an individual's right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances. When an individual subjected to arrest has a privacy interest in property within his or her immediate control or "grabbable area", this court has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence rom destruction or concealment.
People v. Gokey, 1983, Chief Judge Lawrence Cooke

 Under United States Supreme Court precedent...incident to the lawful arrest of an occupant of a vehicle, the police may search the entire passenger compartment of a vehicle and containers found therein without a warrant and without any particularized evidentiary basis for doing so...This court has not adopted this bright-line approach...We have noted, instead, that the search-incident-to-arrest exception to the warrant and probable cause requirements of our State Constitution exists only to protect against the danger that an arrestee may gain access to a weapon or may be able to destroy or conceal critical evidence. 
People v. Blasich, 1989, Chief Judge Sol Wachtler

Under the State Constitution, to justify a warrantless search incident to arrest....requires the People to demonstrate the presence of exigent circumstances. We have recognized two interests underlying the exigency requirement: "the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment." Exigency must be affirmatively demonstrated. Accordingly, even a bag "within the immediate control or 'grabbable area' of a suspect at the time of his arrest may not be subjected to a search incident to arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag" [quoting Gokey].
People v. Jimenez, 2014, Chief Judge Jonathan Lippman

In short, New York Court of Appeals case law requires some actual justification for arresting and searching.
Unlike the current Supreme Court, which construes the federal Constitution as permitting an arrest for any offense, regardless of how minor and non-violent, the Court of Appeals has construed the state's search and seizure rights as requiring some real reason for making an arrest.
Unlike Supreme Court case law, which automatically permits a full search of the person and anything within his reach (including the entire interior of his car) incident to any arrest for any offense whatsoever, Court of Appeals' precedents determine the validity of such searches based on their actual need, i.e., safety and preservation of evidence under the circumstances.
Unlike Supreme Court case law, which allows persons stopped for the most minor, non-violent offenses to be arrested, taken to the police station "for processing," placed in a jail cell during that processing, and even strip-searched "for security," Court of Appeals' precedents require the government to demonstrate that each and every one of those intrusions be justified by some actual safety or evidentiary need.

And therefore? The ramifications of the Court of Appeals Gutherie decision, validating an automobile stop despite the police officer's mistake?

Fortunately, those ramifications are far far less drastic then they would be if the New York court followed current Supreme Court rulings on arrests and searches incident to them.
Fortunately, the Court of Appeals has exercised independent judgment in much of its search & seizure case law.
Fortunately, the Court of Appeals largely restricts arrests and searches based on what is actually justified by some law enforcement need--as opposed to the Supreme Court's automatic, no-questions-asked, bright line approach.

So the consequences of the New York court's ruling in Gutherie, upholding vehicle stops based on reasonable police mistakes, are much more limited then they are under federal law.
The consequences of such a ruling in New York (as well as in other states whose courts have developed their own case law protective of search & seizure rights) are much more limited than they are in those states whose courts have failed to exercise independent judgment--states whose courts, instead, have simply adopted the (yes, atrocious) Supreme Court search & decisions as their own state law.



In the next post, we'll discuss the implications in the Gutherie ruling for independent decision-making at the Court of Appeals. Particularly, we'll explore the majority opinion's considerable reliance on the Heien decision, and its seeming reluctance when deciding matters of state law to "depart" or "deviate" from federal rulings of the Supreme Court.

Ignorance of the Law--by the Police--IS an Excuse (Part 4: NY Court of Appeals' GUTHRIE decision)

Several month's after the Supreme Court's HEIEN decision, New York's highest court took its turn on the question of police ignorance or mistake of law.
[On HEIEN, see part 2 & part 3.]

The result in People v. Guthrie was the same--at least ostensibly so. But whether or not the result was actually the same, the ramifications are much different, because the Court of Appeals search and seizure case law that governs New York is much different. We'll get to the matter of ramifications in the next post.

For now, let's deal with my "at least ostensibly so." In short, the New York Court's decision was, curiously, quite confusing. Rather than a clear, straightforward rendering of the holding in the case, the 6-1 majority opinion seems more the product of compromise, accommodation of conflicting views among the Judges who signed on, and reaction to the pointed dissent. One might agree with the ultimate result in the case (and I do), and yet still be utterly unsure of exactly what the court decided.

Let's get to the facts of the case:

A driver ran a stop sign.
The sign stood at the edge of a supermarket parking lot.
The driver was exiting onto a public road.
A police officer saw this.
The officer pulled the driver over.
As later learned, the stop sign was not registered with the municipality.
Under state law, running such a stop sign is not a violation.
[Unrelated to the legal issue before the Court (i.e., the validity of pulling the driver over): the officer then smelled alcohol on the driver's breath and arrested him.]

There was no disagreement about some important matters.
First, running through that stop sign was not an infraction under New York's traffic laws, because the sign wasn't registered.
Second, the officer was unaware that the stop sign wasn't registered.
The only question before the Court was whether, in light of that unawareness, the officer's pulling the driver over was invalid. That is, whether, as a constitutional matter, it was an "unreasonable" stop.

[The significance for Ms. Guthrie is that the evidence of her driving while intoxicated would be thrown out of court if the stop was invalid. The much broader importance of the case is the precedent it establishes--i.e., what the constitutional law of New York is--and henceforth governs all police stops and all cases involving police stops throughout the state.]

Here, spelled out in the first paragraph of the majority opinion, is how New York's high court ruled:

We conclude that where, as here, the officer's mistake about the law is reasonable, the stop is constitutional.

Short, sweet, to the point: the stop was reasonable and therefore constitutional.
But was this case about a mistake of "law" at all? Despite the apparent clarity of the Court's statement, is that really what the Court was ruling on?

Was this case about an officer being ignorant or mistaken about the law that requires a full stop at a stop sign? No.
Was this case about an officer being ignorant or mistaken about the law that requires that a stop sign be registered? No.
Was this a case about an officer that was ignorant or mistaken about the law that requires that police must have a "reasonable" ground to stop a driver? No.

What this case was about--and only about--was an officer who apparently was unaware (i.e., ignorant or mistaken) whether a particular stop sign had in fact been registered.
Yes, that is a pure matter of fact--Was the stop sign registered or not?-- not the existence or meaning of the registration law.
That is a matter of a particular stop sign's history--Did anyone register that stop sign?--not about the registration law itself.
That is a matter of what happened or didn't happen in the past--Did the owner of the parking lot comply with the legal requirement of registering the sign?--not about the officer's mistake or ignorance about the law's requirement.

So, it's very confusing that the Court of Appeals majority should view this case as one involving a police officer's mistake of law. And a fortiori, about the majority's excusing ignorance or mistakes of the law on the part of police officers, when that issue really wasn't in the case and wasn't necessary to deciding the case.

Indeed, the Court itself seemed to understand that. To understand that this case was not really about any mistake of law. The Court actually made clear--much later in the majority opinion--that it was not excusing ignorance or mistake about the law.

In response to Judge Jenny Rivera's dissent that the Court had never before excused an officer's mistake of law, the majority explained its ruling:

[W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code. [My emphasis added.]

Well, that doesn't seem like an explanation of the Court's initially stated ruling at all. It's more like a contradiction. Just answer this:
Is the Court saying that it's excusable for an officer to be ignorant about a law--here the stop sign registration law--or is it now denying that it's saying such a thing?
Is the Court saying that it's excusable for an officer to be unaware of that law--or to be unaware of whether a particular stop sign had been registered?

The Court is denying that it would excuse ignorance of the registration requirement. It's insisting that it's only excusing unawareness that the particular sign was unregistered. And that is a pure matter of ignorance or mistake about a fact, not about the law.

Were some Judges who cast their votes in the majority uncomfortable with the Court saying that it was excusing an actual mistake of law? Did they press for language that diluted the Court's initially stated ruling? Language that made pretty clear that this case was not at all about the police officer's ignorance or mistake about the law that required stop sign registration?

And yet, and yet, the majority opinion later reinforced the confusion when it reverted to it's excusing police failure to know the law:

Finally, there is no unfairness in forgiving a police officer's objectively reasonable mistake of law...

But then again--yes, the majority opinion seems to swing back and forth--the Court concluded with the following lines, suggesting once more that it (or at least some Judges in the majority) were aware of the confusion it would be reaping and uncomfortable with the precedent (apparently) being set:

[W]e conclude that the traffic stop was justified under both the Fourth Amendment and article I, § 12 based on the officer's reasonable belief that defendant failed to stop at a valid stop sign. It is undisputed that the stop sign was of regulation color, height and dimension; its only defect was that it was not properly registered.

Again, whether it was "a valid stop sign" by having been "properly registered" is a pure question of fact, of history, of what happened or not. And whether the officer knew or didn't know about that fact hasn't a wit to do about whether the officer knew or didn't know about the law.

Let me be clear--I don't want to causing additional confusion. But, just in case anyone cares, I agree wholeheartedly with the ultimate result in this case. If a police officer sees someone run a stop sign, it seems to me perfectly reasonable and therefore constitutionally valid for the officer to stop that driver for what, again, reasonably seems to be an offense--as well as a genuine safety concern. So I do not have a problem with the Court's approving the officer's pulling the driver over in this case.

What is troubling, however, is the utter confusion in the Court's opinion--it's swinging between mistake of law and mistake of fact. What's also troubling is the Court's (apparent, because repeated) ruling. Not only was the ruling about mistake of law unnecessary (since the case really involved ignorance or mistake of fact). Beyond that, such a ruling can henceforth be applied to validate intrusions and invasions of search and seizure rights--of persons who are totally innocent of any legal wrongdoing--on the basis of official ignorance or mistake about what the law really is.

That's hardly a recipe for encouraging knowledge of the law by police officers.

The hope is that the Court of Appeals strictly limits this ruling to the kind of case that Guthrie was really about. Not a "reasonable" ignorance or mistake about the law. But about a police officer's perfectly reasonable unawareness of a particular fact--i.e., a fact about which it would be unreasonable to expect a police officer would necessarily be aware. Because that's really what was at issue in Guthrie.


In the next post, we'll look at the ramifications of the Court of Appeals ruling on mistake of law--assuming that is actually what the Court ruled on.
For now, let's just say that the ramifications are far far less drastic than they are for the Supreme Court's HEIEN  decision. That's largely because the Court of Appeals, as a matter of its own independent case law for New York, has rejected much of the Supreme Court's atrocious search and seizure jurisprudence.

Ignorance of the Law--by the Police--IS an Excuse (Part 3: More on HEIEN & Ramifications)

In the last post, we discussed the Supreme Court's Heien decision and began to examine its ramifications. Recall that the Court approved, as constitutionally valid, a police officer's stop of an automobile for a faulty brake light. However, the Court did so, not on the basis of the legitimate safety concern presented and the need for repair but, rather, by excusing the officer's ignorance of the state law that happened to require only one light.

As we noted, the consequences of that ruling are far reaching. It provides another opening for the expansive exceptions that today's Supreme Court has adopted to basic search and seizure protections. Let's not mince words--this is about the drastic intrusions and invasions that this Court permits for even the most minor offenses.

Actually, especially after the Heien decision, the state of current constitutional law is even worse than that. Now, all those intrusions and invasions are permitted for what a police officer mistakenly believes is one of those minor offenses.

To dispel the understandable skepticism that some readers may have about whether the Supreme Court's decisions could really be as bad as I am making them sound --just like the skepticism my students have before they read the case law--let's look at a couple of those decisions. This should erase any doubt about just how atrocious current Supreme Court jurisprudence is.

Let's start with Atwater v. City of Lago Vista (2001). It's now settled constitutional precedent relied on in subsequent decisions. Here are the facts:

A Mom is driving with her young children in the car.
They aren't wearing their seat belts.
Mom's car is pulled over by a police officer.
She's arrested for the seat belt violation.
She's handcuffed.
She's taken to the police station.
She's ordered to remove her shoes and other items and to empty her pockets.
She's placed in a jail cell during "processing" of the seat belt violation.

Not kidding. For a seat belt violation.
Lest there be any doubt, here are the facts as stated in the Court's own syllabus:

Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond.

The Supreme Court held that all of this was perfectly fine. The 5-4 majority ruled that none of this violated the Constitution's prohibition against unreasonable searches and seizures.

It makes no difference, according to this Court, that an offense--like a seat belt violation--is extremely minor. It makes no difference to this Court that there isn't any real necessity [Or any reason at all!] to arrest and handcuff and search the offender--like the Mom--and hold her in a jail cell.

No, according to the modern Supreme Court, an arrest, a search incident to that arrest, and a trip to the police station for "processing," including being locked in a jail cell, are all perfectly permissible whenever the police have a "reasonable" ground--i.e., "probable cause"--to believe that someone has committed even the most minor offense.

Again, lest there be any doubt, here are the Court's own words:

If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender....[The police officer] was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater's arrest was in some sense necessary....The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.

[Anyone interested should read the dissenting opinion of Justice O'Connor who clearly found the Court's ruling to be as outrageous as I do.]

OK, readers might now ask, what else is there? It can't get too much worse than that seat belt case, can it?
Oh yes it can, and yes it did.

Try this one, Florence v. County of Burlington (2012). In that case, the Court upheld the strip search of an automobile passenger who was arrested for a non-violent, non-contraband related, past minor offense.

Actually--maybe you're expecting this--the Court's decision was even worse than that. The Court approved a second separate strip search of that passenger as well. And, oh, by the way, it just so happens he wasn't guilty at all. The police officer arrested him on a mistake!

Here are the facts:

A car was stopped for a traffic infraction.
When the passenger identified himself, he was arrested for failing to pay a previous traffic fine.
The officer was relying on a warrant in the state's computer system.
The passenger insisted that he had paid the fine and presented documents proving he had.
Nevertheless, he was handcuffed, placed in the patrol car, and taken to the local jail.
There, the passenger was made to strip naked for a full inspection, including that of his genitals.
He was held in that jail for six days.
He was then taken to the county correctional facility.
He was once again made to strip naked for a full, even more intrusive inspection.
The next day, he was finally brought before a judge.
The judge ordered the innocent man's immediate release.

Any search and seizure rights problem under those facts? Well, this Supreme Court didn't see any.

The Florence case was decided eleven years after Atwater. The Supreme Court simply took the next step.  Florence was the ultimate extension of the search & seizure case law that the Court has been building for the last 30 or so years. Relying heavily on Atwater and its precursors, the Court did what those precedents suggested it would.

Minor offense? No matter. An arrest and full search are permitted.
Nothing at all to suggest violence or weapons or contraband or any evidence of such an offense or any other? No matter. An arrest and full search are still permitted.
A ticket or warning would suffice? No matter. An arrest and full search and taking to the station for "processing" are permitted.
Police officer actually mistaken about an offense--even the most minor one--having been committed? No matter. An arrest and full search and taken to the station for "processing" are constitutionally valid and the mistake is excused.
Again, police officer mistaken. No matter--all of the foregoing, plus a strip search or two in the interest of "jail security" is permitted.

Here's how the Court "explained" itself in Florence:

One of the central principles in Atwater applies with equal force here. Officers who interact with those suspected of violating the law have an “essential interest in readily administrable rules.” [Citing to Atwater, as well as to Belton (1981), one of the Court's first decisions down this road.] The officials in charge of the jails in this case urge the Court to reject any complicated constitutional scheme requiring them to conduct less thorough inspections of some detainees based on their behavior, suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities....Even assuming all the facts in favor of petitioner [the passenger], the search procedures at the Burlington County Detention Center and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions.

Hmm. Arrest, jail, and a strip search or two for failing to pay a traffic fine--which he actually did pay!

So getting back to Heien. That decision, validating a stop made by an officer based on his ignorance or mistake of the brake light law, certainly flows from Florence--and numerous other precedents of the modern Court--where it has excused "reasonable" or "good-faith" mistakes by the police. Indeed, the Court has done so even in cases where the so-called "reasonable" or "good-faith" mistakes resulted in searches or seizures that the Court itself acknowledged were unconstitutional. (I.e., the so-called "good-faith" exception to the exclusionary rule. But delving into that is another matter.)

So Heien, the brake light decision, is no surprise at all when viewed in the context of Atwater, Florence, and the decisions upon which they were built. But whatever one might think about the decision in Heien itself--i.e., excusing a "reasonable" police mistake about the brake light law, considered in the abstract--the ramifications are what is truly worrisome.

That's because Heien triggers those drastic intrusions and invasions that the Supreme Court automatically allows whenever the police "reasonably" believe that someone has committed an offense. Regardless of how minor the offense. And regardless of whether any such offense was actually committed. In short, a "reasonable" belief = arrest = search = jail for processing.

To conclude, let me repeat what I wrote in the last post about why the Heien decision, taken together with the truly atrocious previous decisions of the modern Supreme Court, contravenes any serious regard for the Constitutional guarantee against unreasonable searches and seizures:

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 [or passenger], even for a very minor traffic offense the officer believes the driver [or passenger] committed
• search the driver [or passenger] 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 [or passenger] is shackled in the back of the patrol car and, thus, metaphysically incapable of reaching into his car)
• handcuff the driver [or passenger] and take him to the police station "for processing"
• place the driver [or passenger] in a jail cell during the "processing"
• subject the driver [or passenger] 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 or passenger has committed. And even if the officer is wrong and no offense was actually ever committed.

I feel compelled to say it one more time: atrocious!

In the next post we'll take a look at the New York Court of Appeals decision last month in People v. Guthrie. It's a somewhat similar case and decision, but the ramifications are far far different.

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?
Sure.
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.

Ignorance of the Law--by the Police--IS an Excuse

The Supremes and NY's High Court Say So 

Ignorance of the law is no excuse, right?
Well, almost always.

Driving 65 mph because you didn't see the 55 limit posted? No excuse.
Thinking it's ok to let your spouse take some of your prescription medication for her pounding headache, unaware that your state criminalizes such sharing? No excuse.
Serving wine with dinner to your minor child, niece or nephew, unaware that your state allows no exceptions even within your own home. No excuse.
Carrying your lawfully registered firearm, unaware that the state your visiting has far different restrictions than your home? No excuse.
Etc., etc., etc.

But now suppose a police officer pulls you over for headlights that seem too bright, but are actually legal. Officer excused? Stop lawful?
Or an officer pulls you over for tinted windows that seem too dark, but are actually legal. Officer excused? Stop lawful?
Or an officer detains you for carrying a concealed firearm, unaware of special regulations authorizing you to do so. Officer excused? Detention lawful?
Or an officer detains you for wearing some police attire, unaware that the state's illegal impersonation law does not cover that. Officer excused? Detention lawful?

It just so happens that recent judicial decisions do in fact excuse officer ignorance of the law.
And those decisions do in fact hold that such stops or detentions are perfectly lawful.

More than that, these decisions were not rendered by some backwater courts.
No, these are recent decisions of two of the nation's most important courts: the United States Supreme Court and the New York's highest court, the Court of Appeals.

Both courts in the last several months rendered decisions placing their respective stamps of approval on stops based on police ignorance--or "mistake"--of the law.
The Supreme Court ok'd such stops under the United States Constitution.
The New York high court did so under the state's own constitutional search and seizure protections.

In the Supreme Court case, Heien v. North Carolina, the police officer stopped the defendant because one of his car's two brake lights wasn't working. Under the state's law, however, only one working light was required. (The stop resulted in the officer's discovering contraband in the car.) The Supreme Court, in an 8-1 vote, excused the officer's ignorance of the state's law,  and it held that the stop was constitutional.

In the NY Court of Appeals case, People v. Guthrie, the police officer stopped the defendant after seeing him drive through a stop sign. Problem was that the stop sign, at the exit of a private shopping center parking lot, was not legally authorized. (The stop resulted in determining that the defendant was driving while intoxicated.) New York's high court, in a 6-1 vote, excused the officer's ignorance that the stop sign was unauthorized. The court held that the stop was valid under the state's constitution--in addition to being valid under the Supreme Court's Heien decision.

These are significant decisions with considerable ramifications. That is not to suggest--or even intimate--that these decisions were wrong as a matter of law or unwise as a matter of policy. But the implications are far reaching and need to be explored.

We will do that in the next few posts.
First we'll look at the Supreme Court's decision. It happens to be the latest in a long series of decisions in which the Court seems increasingly less concerned about search and seizure rights.
We'll next look at the Court of Appeals decision which, albeit rendered by a court which typically requires much more justification for police intrusions, also forgave police ignorance--again, "mistake," as courts usually label it when speaking of official ignorance.

So the Heien decision in the next post(s).
New York's Guthrie decision after that.