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“Ignorance of the Law is no Excuse”… Except for Law Enforcement

It’s a well-known maxim and words to live by.  As a citizen, not knowing that you can’t carry around your Dad’s Percocet prescription isn’t a defense. The law is the law, and your ignorance of it comes with great risk.  Caught, and you’re screwed, end of story.  One might think that law enforcement would be held at least to the same standard.  If you think that, you are wrong, at least as of today.  That’s because the Supreme Court issued its opinion in the case of Heien v. North Carolina.

The Fourth Amendment guarantees the right to all citizens to be free from unreasonable searches and seizures by the government.  It is well established that a police officer does not have to be correct about the facts when he or she stops and frisks or arrests you; only that his belief that you have committed a crime must be based on reasonable, articulable facts.  For example, if you are walking down Myrtle Avenue in Brooklyn wearing a San Diego Padres jersey and carrying a television set, and a store just off Myrtle just called 911 saying a guy wearing a San Diego Padres jersey just stole a television set, the police have probable cause to stop and question you, and likely arrest you.  You may be an innocent victim of a strange coincidence, but there was probable cause to arrest you.

That has always been the constitutional standard, that a cop only needs a reasonable belief of the facts.  If his reasonable belief turns out to be wrong, hopefully the criminal justice system will work the way it is supposed to work and the charges against you will be dismissed.  What the Constitution has never allowed, however, is for a police officer to stop and search or arrest a person based on facts that, if true, do not constitute a crime; until today.

The defendant in the case, Nicholas Brady Heien, is neither the citizen of the year nor an evil genius.  He was driving his car with his friend in the passenger seat.  The cops followed them because they looked “suspicious”.  Finally, Heien applied his brakes and only one brake light was working.  The cop had his pretext for pulling him over, and did so.  The cop asked for his license and registration.  Noting that Heien and his passenger looked nervous, he asked if he could search the car.  He consented, and the search of the car yielded a bag of cocaine.  He was arrested and charged with cocaine possession.  He was given a warning on the brake light.

The only problem with the arrest is that it is not against the law in North Carolina to have one working brake light.  The law says that automobiles must be equipped with a “stop lamp” (brake light), in the singular, not the plural.  It repeats the words “stop lamp” three times, always in the singular.  Clearly, the officer had a reasonable belief that Heien had only one working brake light, but that’s not a crime in North Carolina.  Heien’s lawyer moved to suppress the evidence that was obtained as a result of the stop – the cocaine – because it resulted from an unconstitutional stop in the first place.

The Supreme Court began by emphasizing the difficulty for police officers who must make snap decisions in stopping and arresting people.  This is true and is the reasoning that underlies the standard that police need only be reasonable in their belief that crimes have been committed, not accurate.  However, after they emphasize the speed with which cops must make judgments, they then invent the fiction that in the midst of highway chases police open statute books and interpret vehicle and traffic laws on the fly.  This of course they do not do, nor should they.  Before a highway cop goes out on patrol, he knows things like what constitutes a brake light violation.

Nevertheless, the court concluded that even though the law of the state is that you only need one brake light, the language of the statute is open to interpretation and thus it was reasonable for the officer to believe that  having only one working brake light was illegal.  In other words, the Supreme Court concluded in an 8-1 decision that law enforcement officials do not have to be right about the law or the facts to lawfully stop and even arrest you.

Two of the eight judges wrote a concurring opinion, agreeing with the result but emphasizing how rare this type of situation would be.  The lone dissenter, Justice Sotomayor, heroically disagreed.  She rightfully said that the majority did little to limit the reach of the opinion, and we can fully expect to hear law enforcement use the excuse of “reasonable mistakes of law” in many cases after this opinion to justify stops and arrests.  Justice Sotomayor acknowledged, as we must, that police cannot expected to be correct in all their judgments about fast unfolding situations.  But we can reasonably expect them to know the law they enforce.  Sadly, that is not the law of the land today.  

Founding partner Leo Glickman has a long track record of holding the powerful accountable and fighting for progressive candidates and causes. Mr. Glickman represents candidates for Statewide and Citywide offices as well as many candidates for local legislative positions.

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