Heien v. North Carolina

December 18, 2014

All Posts, News

The Supreme Court of the United States chipped another little piece off the Fourth Amendment Monday.

The ruling is not as contemptuous of civil liberties as it has been widely reported to be but it did create a curious division between the obligations of citizens and police under the law. Every citizen knows that “ignorance of the law is no excuse.” What the Supremes decreed at the beginning of the week is that police may now use ignorance of the law as an excuse.

Any mommy who has ever tried to fight a ticket in traffic court knows that police both lie and exploit a cynically informed view of the letter of the law. What’s most frightening about the Court’s decision in Heien v. North Carolina is that the cops are now officially encouraged to lie about what is in their heads.

The Traffic Stop

The case began with a traffic stop near Dobson, North Carolina on the morning of April 29, 2009. A Surry County Sheriff’s Sergeant named Matt Darisse began following a car he thought looked suspicious. Darisse thought that car looked suspicious because, as he sat by the side  of the road and the car sped past, the sheriff thought the driver looked “very stiff and nervous.” He followed the car until he invented a pretext to stop it. When the car braked Darisse saw one brake light was out and that became his legal reason to make the stop.

While writing a ticket for the brake light, Darisse decided the driver was nervous. He asked the usual question about whether the driver and the owner in the back seat (Heien) were carrying contraband. He asked for permission to search the car. It is standard operating procedure in those situations to demand a consent search under threat that the police will summon a drug sniffing dog. The two men said he could search the car. Eventually, in the side compartment of a duffle bag, Darisse and another cop found a sandwich bag containing cocaine. Had he  simply not consented to the search Heien might have avoided arrest and probably would have prevailed eventually. But he told Darisse to go ahead.

The Fourth Amendment

After he was charged, Heien objected that the search violated the Fourth Amendment. That clause states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Although that Amendment seems unambiguous, over the last two centuries the Supreme Court has found it to be full of nuance. One of those nuances is called the “vehicle exception” which is actually an elaboration of a Fourth Amendment exception that allowed warrantless searches of ships at sea. The reasoning behind the ship exception was that if the Coast Guard took time go back to land to get a search warrant, the suspect ship could just sail away. In 1925, the Court applied that exception to searches of the cars of suspected bootleggers. In the days before radio, the Court thought bootleggers could just drive away if police had to go back to town to get a warrant. So, for the last 80 years, car searches have been considered to be “exigent searches” and police only need “probable cause” to execute them. The vehicle exception allows police to act as both judge and arresting officer.

Ignorance Of Law

What is noteworthy in the Heien decision is that the two men in the car hadn’t broken any traffic law in North Carolina. It is actually legal to drive in North Carolina with only one taillight but Sergeant Darisse didn’t know that. And the Supreme Court thought that was reasonable.

Following Heien, police are now free to invent their own traffic laws on the spot in order to make any traffic stop “lawful.” One may now be stopped for riding a vehicle with only two wheels because an arresting officer can argue that when he was at the police academy he was taught that motorcycles were illegal. As Justice Roberts, who wrote the opinion, explained, “The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law.’”

“The Fourth Amendment prohibits ‘unreasonable searches and seizures,’” Roberts continued. “Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment. But what if the police officer’s reasonable mistake is not one of fact but of law? In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can.”


The Court ruled that the stop was legal by a vote of seven to one.

The lone dissenter was Justice Sonia Sotomayor who wrote that “the Fourth Amendment’s protection of civil liberties…has already been worn down.”

She dissented that “giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands” police authority.”


31 Responses to “Heien v. North Carolina”

  1. Ol'Goat Says:

    The Supreme Court “…significantly expands” police authority.”

    …a step closer to a total police state? …disappointing indeed.

  2. Paladin Says:

    I don’t know how things work in NC, but in CA, Sergeants are supervisors, and therefore are expected to be better versed in the law than their subordinates.

    I interpret this latest ruling by the Supremes to mean that knowledge and application of the law is now akin to a game of horseshoes. You don’t have to throw a “ringer”, ’cause close enough is now good enough.

    Long May You Ride (to those that deserve to),


  3. Whitepride Says:

    Sad. Just more erosion of fourth amendment rights!I have a bad feeling that things are only going to get worse. I don’t think we are that far away from having a full time federal police force like the Mexicans have. They already arm state and local police with dedicated military hardware that should be on a far off battlefield not on our streets in America! We really need another revolution in this country and adhere to the basic principles that the founding fathers laid down for us! I hate to say it but we are fucked!

  4. LOS Says:

    I don’t routinely carry drugs around, but seems to me that a request to search my vehicle will always be “No” regardless if I am totally clean. If you know you have drugs, why would you make it that easy? I guess they thought that consenting to the search made them appear innocent? Don’t know..but, I do know that my answer will continue to me No. Call out the dogs, etc. I am not going to make it easy for them. Saying that I appear “stiff” is not a good enough reason to search me.

  5. popeye Says:

    The drug dog will “alert” weather you have drugs in the car or not. The handlers know how to fake it. I’ve had the dogs alert on a car that was completly free of drugs before. When I asked the cops to show me the drugs they said it was too small an amount , but it got them into my car.

  6. Mike184 Says:

    Popeye, absolutely right. And in NC I think that you have counties that know their stuff and counties that are dirty and dont know jack shit. They know that wrong or right they nabbed someone and since you have been charged you are pretty much guilty here – unless you can cough up cash for a DECENT lawyer. Seem as if you can afford a less expensive lawyer around here the really just go to court for you as a mouth piece.

    The Counties that seem to roll by the letter of the law are the ones that don’t harass you…. Or atleast try and lay every bogus charge they can think of on you. Now City police are an entirely different story…

  7. VAGO 1%er Says:

    All cops are liars. It’s in their genetics.

    There was a media story not long ago about how drug dogs were being trained to respond positive by signals from the handler.

    Any contact with any law enforcement is not good. Get smart or get fucked.

  8. Bill Says:

    Never thought I’d appreciate Sotomayor for anything. But her repudiation of this: “The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can,” lifts her a bit out of the slime, despite her nefarious complicity in Barry’s “birther” problems, and his execrable collusion with monsanto. As the song says, “goes to show you never can tell.”
    That said, this decision blows a hole in the 4th Amendment fully as large as the document itself. Another great Aging Rebel find, very astutely observed and cogently presented here, where the real news really is.

  9. Not Surprised Says:

    NC (and maybe other states) allows three “runs” at a car by the handler.

    Any language in court that indicates an officer could have ESP and presume a driver or passenger in a moving vehicle looks suspicious or “stiff” is bull shit.

    Bottom line is once stopped, NEVER consent to a search. Ever. Quietly refuse, then do not answer any further questions.

    I think it can be assumed that 90% of the time, people contribute to their own arrests by not keeping their mouths shut.

    You have NOTHING to lose if detained until a search warrant or a drug dog is brought by and everything to argue about the legality of such detention.

  10. Rebel Says:

    Dear Vago 1%er,

    Don’t get me started on drug sniffing dogs. I wrote a little on this in Framing Dave Burgess:

    “The highest American court has visited the relationship between a dog’s nose and the Fourth Amendment frequently. And, the assertion of Blitz’ infallibility is at odds with consensual reality even in the magical forests where Supreme Court Justices grow. In a 2005 case called Illinois versus Caballes Justice David Souter dissented: ‘I would hold that using the dog for the purposes of determining the presence of marijuana in the car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground,’ Souter wrote. He continued, ‘In United States v. Place we categorized the sniff of the narcotics-seeking dog as sui generis under the Fourth Amendment and held it was not a search. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err.’

    “‘At the heart both of Place and the Court’s opinion today,’ Souter went on, ‘is the proposition that sniffs by a trained dog are sui generis (which is the phrase lawyers say when they mean incomparable) because a reaction by the dog in going alert is a response to nothing but the presence of contraband. Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff ‘does not implicate legitimate privacy interests’ and is not to be treated as a search. The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine.’

    “Souter then cited statistics that ‘dogs in artificial testing situations return false positives anywhere from 12.5 percent to 60 percent of the time, depending on the length of the search.’

    “However, even if dissenting judges here and there doubt the infallibility of dogs, courts never doubt the truthfulness of cops. The simple fact is that Blitz might very well be the Sherlock Holmes of Labrador Retrievers. But who would know and what difference would it make? No matter what Blitz did, the dog’s body language was going to be interpreted by Deputy Homar on behalf of Trooper Arnell, not on behalf of some stinking Supreme Court Justice.”


  11. los Says:

    It is already bad enough the a vehicle is considered to be (like boats) an exclusion to the 4th Amendment, BUT now we are letting anything the officer thinks ‘odd’ to be construed as “probable cause” for the search. Seeing me stumble or acting high is probably cause..not liking my driving posture is not. Whether the stop for the non functioning light was reason to stop the vehicle or not (it was not) there was not probable cause to execute a search..K9 present or not. Nor would there be reason for him to detain the driver to wait for a K9 unit. “I don’t like the way you look” should not be sufficient for probable cause. This whole thing enrages me.

  12. Bill Says:

    Drug sniffing dog aside here: A friend of mine was a combat dog handler in Viet Nam, Army. One day they got a new dog, and it immediately went nuts and started alerting on everybody around. They loved the dog, and had no alternative but to immediately, and somewhat roughly, “detrain” it. Lots of Tough Love. Dog seemed to figure out the new rules right away.

  13. VAGO 1%er Says:

    Again and as always, well written sir.

    Corporate Bob

  14. popeye Says:

    I can get my dog to “alert” that consists of jumping and barking by whispering “do you want to go for a walk” in his ear. He also licks his balls and asshole . I wonder if he’s trained well enough for a career in law enforcement?

  15. VAGO 1%er Says:

    If he can lick his balls and asshole he most definitely qualifies for the job as Lakeport County Sherrif.

  16. RVN69 Says:

    This will become the standard testimony in court now, “I was on routine patrol and saw the defendant ride by on his motorcycle, he didn’t smile or wave at me so I knew he must be up to no good and began to follow him. I noticed that he (insert phony reason to stop here) and proceeded to stop him. After the stop I noticed that he was (insert more phony bullshit here) and asked for permission to search his vehicle but he declined so I called for K9 Fluffy who then alerted on the presence of illegal narcotics in my pocket, I mean is his saddlebag and he was arrested for trafficing in illegal substances.”


  17. Trip Says:

    I was just recently pulled over in my cage, and the cop came up asking me for my information which I already had out and I asked why are you stopping hme and of course in a smartass way he says he will tell me in a few minutes? The fucking guy goes back to his car for about 7-8 minutes then returns and asks do you have anything in your vehicle I need to know about? I said no sure don’t, then he’s automaticly asking me can he search my vehicle and immediately I say no of course. I told him I was very busy and needed to go, so then he gets me out the vehicle puts me in handcuffs and explains that Im not under arrest but I was just being detained for his safety and mine. By this point Im getting fucking pissed and asked him why the fuck he pulled me and why am I sitting on the fucking curb with handcuffs on? He says well he pulled me for my tail light being out and since I didn’t consent to his search he called k-9 and he was waiting on them. So the other cop gets there and the dog supposedly alerts on my car which I know for a fact has never had anything other than a gun in it because I bought it new and my wife drives it sometimes, so never ever been drugs in it! The glove compartment was locked and he asked me to come open it and I told him no, he says what do you mean? I said no I won’t open the motherfucker because I know alittle about what the fuck is going on with my rights right now and they are being violated, at that point he looked stunned and of course I went fullbore asshole and told him I wanted his fucking supervisor out there right now and no im not opening my fucking glove compartment you may have reasonable suspicion but you don’t have probable cause, and I have an expectation of privacy in my vehicle which is why, the glove compartment was locked. And of course there was a gun in there but what the hell I didn’t tell him that. Anyways after 45 minutes or so they finally let me go with fucking warning ticket. All I can say fellows is its getting worse everyday and the shit I read anymore doesn’t surprise me or have that shock and awe anymore. Make sure your cages are clean. ACAB


  18. FBomb Says:

    Courts have previously ruled that appearing nervous during a police stop is not reasonable grounds for a search warrant, in the same manner that refusing to consent to a search is not reasonable grounds to get one either. The lesson here is never make a cops job easier by talking to them or commenting to a search. “Am I free to go?” Should have been the only thing that guy said after he got his ticket, and if the cop said “No”, then the next question is “Am I being detained?” If so, exercise your right to remain silent…you can’t talk your way out of shit.

  19. Drifter Says:

    As the net grows ever so larger.

    Let’s not forget the Tom vs People (California)decision. If I understand it correctly, your silence can be used against you as evidence if you don’t specifically invoke your right to remain silent?



  20. Glenn S., Prospect Says:

    The separation of powers, meant to protect the country from one or two branches of government establishing a police state, has become meaningless. Prosecutors of the executive branch become congressmen of the legislative branch and then become judges of the judicial branch. Members of the ruling class seamlessly transition from one branch to another, co-signing one another’s bullshit, resembling a cartel rather than a republic. This is just one more case of the government twisting reason and logic to justify the police state. The government is the problem and the problem ain’t gonna solve itself.

    Although I don’t like either political party, it is worth noting, IMHO, that justices appointed by democratic presidents are more likely to vote to uphold the rights of individuals.

  21. FBomb Says:

    You are correct Drifter…you must explicitly state you are exercising your right to remain silent.

  22. Drifter Says:

    @FBomb, thanks for the response, the state continues on the “fucking nuts” agenda.

    @Glenn; insightful comments as usual.

    Respects to Y’all, Happy and Merry and all that jazz….

  23. Wiscokid Says:

    What I want to know is that after the dogs supposibly hit on my cage and came up with nothing of course, if they are going to fix the claw marks from there dog all over my car doors! I won’t hold my breath.

  24. tommy Says:

    I consider myself prepared for the worst to a degree but dont consider myself a doomsday prepper but the other night I told myh pregnant wife that I truely believe there is going to be a revolution either in our lifetime or my son’s. Scary thought but if things keep going the way they are I wont be suprised.

    The people are becoming sick of the politician’s and police corruption……

  25. Oldskewl Says:

    There must be something that happens to peoples brains when the pigs ask for consent to search… Must be they are hoping they wont find what they have stashed and by allowing the search they figure it makes them look innocent.

    Problem with that is, people are stupid… They hide their dope in the most obvious of places, like their cigarette pack, the little pocket in your jeans or somewhere in their console.. The pigs see it time and time again and they learn the most obvious places to look.

    Know your rights, thats the best thing you can do for yourself.

    Merry Christmas to All.


  26. popeye Says:

    From Atlas Shugged
    “There’s no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

  27. fayettnamhoe Says:

    the loony bin got shut down, i broke out of that trap, my thoughts overwelemded the guards, you complain about a traffic stop, we all guilty, if only from the thoughts in our heads, motorcycle madness in north carolina, hahaha ,,, the moth man takes it away, you got a burnt tail lite or you where the wrong clothes, the targets are painted on our backs

  28. fayettnamhoe Says:

    white collar crimes, who are the real criminals?

  29. fayettnamhoe Says:

    bad news, i traded my machine gun for a guitar, i know i can do a lot more damage now, i can sharpen my pencil, hurt myself

  30. fayettnamhoe Says:

    when the wheels turn, they going to mess with you,they always have an exuse to pull us over, look them in the eye and say thanks for ruining my day

  31. Panhead Says:

    @ popeye

    Never think of pain or danger or enemies a moment longer than is necessary to fight them.”
    ― Ayn Rand,


    13 69

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