Argument analysis: A simple answer to a deceptively simple Fourth Amendment question?
on Oct 8, 2014 at 12:26 pm
The first argument of the Term yesterday appears to have been somewhat unsatisfying for the Justices. As previewed here, the question on which the Court granted review in Heien v. North Carolina was a simple one: May a police officer’s reasonable mistake of law provide the “reasonable suspicion” required for a traffic stop under the Fourth Amendment? The Justices’ questions appeared to indicate an almost unanimous affirmative answer, although the Chief Justice did note that an answer with too broad a scope might have “troubling” implications. The Justices expressed some confusion about the proper disposition of the case, however, with Justice Scalia going so far at one point as to almost suggest a “DIG” (dismiss as improvidently granted). Still, I’ll predict a short unanimous opinion answering the Question Presented with “yes,” leaving to footnotes and concurrences the larger and more difficult intricacies of the case.
A simple question presented, albeit with “troubling” implications
You will recall that a deputy sheriff stopped Heien’s car because one of his brake lights was not working. (Because the officer was actually interested in “criminal interdiction,” Justice Sotomayor described the encounter as “a lawful pretext,” and the officer did indeed find drugs in a subsequent consent search. Although Justice Ginsburg twice inquired why the lawful consent didn’t eliminate the issue of the stop, the traditional rule has been that the “fruits” of an invalid stop must be suppressed.)
On appeal, however, a state appellate court ruled that there was in fact no traffic violation as a matter of law (and hence no “reasonable suspicion” of one), because the North Carolina statute requires only “a [singular] stop lamp.” Thus, that court ruled, the Fourth Amendment had been violated, and Heien’s conviction should be vacated. But on further appeal, while accepting the appellate court’s “surprising” legal interpretation of the law, the North Carolina Supreme Court ruled that Heien’s conviction might stand, because the officer’s “mistake of law” had been a “reasonable” one – the state statute was “antiquated” and the one-brake-light legal ruling was “surprising” to most. Thus, the court ruled, there was no Fourth Amendment violation, and Heien’s case was remanded for further proceedings.
On Heien’s further interlocutory certiorari petition, the question thus appeared to be simply presented: can such a reasonable legal error create “reasonable suspicion,” or should officers be held to “know the law” just as private citizens would be? That is, if two working brake lights were in fact required, it would be no defense for Heien to argue that he reasonably did not know that. “Ignorance of the law is no excuse” is the common law maxim, and Heien argued that this should apply equally to officers stopping cars. A contrary ruling would, as Heien’s experienced Supreme Court advocate Jeff Fisher argued, “vastly expand police officer discretion,” allowing them to stop cars and people whenever a “reasonable” ambiguity of legal authority could be argued. This is the “broad” implication about which Chief Justice Roberts and some other Justices expressed concern yesterday.
Of course, the Court could simply rule that a “reasonable mistake of law” satisfies the Fourth Amendment, and then just narrowly define what will “count” as reasonable. Justice Kennedy repeatedly turned to this question – what is standard to determine a “reasonable” legal mistake? — and Justice Breyer and others also seemed to focus on it. It was interesting to this reader that no one suggested that when there is legal ambiguity, a reasonable officer might be required to conduct a “reasonable investigation” to obtain a clear legal ruling about the scope of the law, before relying on it to stop and search. Fisher did suggest, however, that the Court ought to require a definitive ruling from a court or legislature before allowing officers to act. Meanwhile, North Carolina Deputy Attorney General Robert Montgomery suggested a generous standard (although no Justice appeared to endorse it): the officer simply gets “to decide which he thought was the better rule.” But as Fisher responded, allowing officers to exploit statutory ambiguities in order to conduct intrusive stops and searches “would undercut public confidence in law enforcement.”
The “twist” in the case
Aside from defining what is “reasonable,” one might think, “simple question, simple answer,” right? Not so fast. About thirty seconds into yesterday’s argument, Justice Kennedy asked the first question, raising a point which then preoccupied the Court for much of the hour. “Suppose North Carolina did have a good-faith exception to the exclusionary rule. What would you be arguing today?” It turns out that, at the time of Heien’s arrest, the North Carolina Supreme Court had ruled that as a matter of state constitutional law, suppression of evidence is required when the Fourth Amendment is violated regardless of officers’ “good faith.” (North Carolina’s legislature has since amended the law, but the state constitutional status appears to remain the same.) That ruling is of course opposite to the U.S. Supreme Court’s 1984 ruling in United States v. Leon that there is a “good faith exception” to the exclusionary rule. It was briefly asked yesterday, but not seriously examined, whether a state may declare its own state-law remedy for federal constitutional violations. “Federalism should respect that choice,” argued Fisher.
Thus Fisher plainly wants to argue on remand that Heien’s conviction should remain vacated because “reasonable good faith” does not apply. However, Fisher’s immediate response to Justice Kennedy was that the Court “[does]n’t have to reach that question,” since North Carolina has not argued it. When Deputy Attorney General Robert Montgomery stood up to argue in response, he confirmed that point; the state has not argued for a “good faith exception” to be applied in Heien’s case. This position seemed to clearly confuse at least some of the Justices (as it continues to confuse me). The North Carolina Supreme Court’s ruling suggests that Heien’s narcotics conviction should be reinstated on remand. Heien plainly wants that ruling vacated. But as repeatedly stressed by Justice Scalia, the Court doesn’t “review opinions, [it] reviews judgments.” So “unless the remedy is exclusion,” Justice Scalia asserted, “there’s no basis for us to set aside the judgment of the North Carolina Supreme Court.” Or, in other words, if the federal rule is that there should not be suppression in any case due to good faith, why should the Court answer a preliminary question (whether there was a Fourth Amendment violation) that doesn’t matter? As Justice Kennedy asked with some frustration, “Can North Carolina more or less set us up this way?”
Fisher responded that in fact it is not uncommon for the Court to announce a federal constitutional rule, and then remand to the state courts for further proceedings “not inconsistent” with its ruling. Indeed, that is what the North Carolina Supreme Court did, once it ruled that a “reasonable mistake of law” did not constitute a Fourth Amendment violation: just remand for further proceedings. Justice Scalia ultimately expressed reluctant acceptance on this point: “If it hasn’t been argued, I guess we can do that. I guess. . . . I’m sorry to waste so much of our time.”
Fisher continued to argue, however, that the Court should restrict any “reasonable mistake of law” ruling to the “remedy” stage of Fourth Amendment analysis, rather than rule that acting on a reasonable legal mistake is not a violation of the Fourth Amendment “right.” Without knowing what the remedy in Heien’s case might be, and without the parties even briefing it, Justice Scalia’s frustration is perhaps understandable. We’ll have to see whether, and if so how, the Justices even discuss this issue when an opinion is filed. They could decide simply to ignore it.
On the merits
On the merits, Fisher continued his powerful argument in favor of a ruling that a police “error of law” should never be held to present “reasonable suspicion,” or police authority will be “vastly expanded” and a double standard for “ignorance of the law is no excuse” will exist. Yet as Chief Justice Roberts asked (and has expressed before), “the Fourth Amendment protects only against unreasonable searches and seizures by its terms.” And as assistant to the Solicitor General Rachel Kovner, arguing for the federal government as an amicus, succinctly put it, “the simplest standard” for courts to administer would be to not separate mistakes of law from fact, and treat all “reasonable mistakes” the same. But she too paused on what type of mistakes should count as “reasonable,” suggesting a standard that requires a “foothold … in the statute that affirmatively supports” the officer’s legal view, for a legal mistake to be considered “reasonable.” In rebuttal, Fisher pointed out that this is often unsatisfying, given the imprecision and inconsistencies (my words, not Fisher’s) often found in legislative regimes. Justice Alito concluded by suggesting that a subsequent “surprising” legal interpretation might be the standard, while Justice Breyer suggested that reasonable mistakes might be those followed by “unusual” legal rulings.
In the end, because the Question Presented doesn’t require that the standard for “reasonable mistakes of law” be defined, and the issue was not central to the briefing, yesterday’s argument suggests that the standard might be left for another day, after lower courts experiment for a while with the rule soon to be announced in this case. Meanwhile, expect some concurring quarrelling over the “right-remedy” distinction that clearly confused a simple resolution of the case.
[Note: This post has been changed to clarify the legal state of play in North Carolina regarding good faith exceptions – specifically, that although the North Carolina legislature has amended the law, the state constitutional status appears to remain the same.]
