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.”