The Supreme Court begins its new term today, and I’m scared.

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is “no.”

Sure, easy for Orin Kerr to say, since it’s all just fodder for his next law review article if things go south. I’m not nearly as sanguine.  After all, if it doesn’t work out as well as Orin thinks it should, I’m one of the guys doing suppression hearings with a defendant’s hand clamped to my arm causing significant physical pain.

Orin, and Richard Re at PrawfsBlawg, do a good job of parsing the legal issues and, given the limited question upon which cert was granted, the remedies, and that’s all well and good.  But my concern isn’t doctrinal.  My concern is trendy.

The police can use any pretext to stop a car.  They can use mistakes of fact, like the existence of a valid warrant even though it’s a total screw-up, yet the Supremes don’t get terribly bent about it.  There is no apparent limit to the exaltation of laziness, error, mistake of fact or fabrication that has bothered them enough to proclaim that police mistakes, per se, that cost a person his Fourth Amendment protections require suppression.

So why would they this time?

They should, but will they?  Heien is a weird case, and its weirdness is what scares me.  The saying is “bad facts make for bad law,” and Heien has bad facts.

The facts of the case are simple. A North Carolina police officer stopped a car for having a broken right rear brake light. The stop led to a consent search, and the search led to the discovery of drugs in the car. So far it sounds like a pretty routine Fourth Amendment traffic stop case. But here’s the twist: If you look closely at the text of North Carolina’s traffic laws, it’s at best unclear whether it prohibits driving with one broken brake light.

A little bit of history is helpful here. Decades ago, it was common for cars to come equipped with only one brake light. The early brake lights often had STOP written on them, and unsurprisingly they were known as “stop lamps.” At the time, it was common for the traffic laws to require cars to have only one stop lamp.

North Carolina’s traffic law is different.  The key statutory provision requires that modern cars have “a stop lamp” but has no such requirement for pre-1956 cars.

Orin quotes the North Carolina law, which speaks to “a stop lamp,” singular, which means that if one goes out, but there is still another as is the case with all modern cars, it doesn’t violate North Carolina law.  Silly detail of archaic law, but the law nonetheless. Bad stop?  Suppression worthy?

What makes this fact pattern scary is that this peculiarity in the law, while so unusual, so peculiar, can recur with regularity. Laws are comprised of a bunch of details, specifics, that distinguish them from perfectly lawful activity.  Lawyers fight over these details. Sometimes, legislators even read them before enacting laws. They are what distinguish a crime from an annoyance.

Should a cop be held accountable for making a mistake about some “trivial” nuance in a law that distinguishes what is illegal from what is not?  Should cops be required to know every element of every law ever?  While ignorance of the law is no excuse for us, what about them?  Of course, courts tend to be a bit more forgiving of police ignorance than citizen ignorance, because they have a very hard job and have to make split second decisions.

And even if the cops are held responsible, does that mean the criminal goes free?  The exclusionary rule is justified by its putative deterrent effect, dubious as that may be.  It’s not to vindicate our rights, but to teach them nasty cops a lesson.  What lesson can be taught about not mistaking the singular for the plural?

The answer is that the police should be held to strict adherence to the explicit elements of the law because anything less would allow them to exceed their authority and, more importantly, reward ignorance.  “Oops” is not a really sound doctrinal basis to violate people’s constitutional rights.  Not even for cops, because they have a very hard job.

But is Heien the right case to make this decision?  The one stop lamp law may be too much to ask of cops as far as the Supreme Court is concerned.  And this is a problem I’ve given a great deal of thought to, because of some personal concerns I’ve had to address.

As regular readers know, I’ve got a 1964 Austin-Healey BJ8 and, as allowed by New York law, use year-of-origin license plates on my car.  In 1964, New York issued a single Worlds Fair plate, to be placed on the rear of the car.  It was kept for 1965, with a red registration sticker to be added, but that was the last year New York allowed a single plate.  After that, all cars were required to have plates on front and back.  So I drive around with no front license plate.

My random guess is that most active duty police officers today weren’t alive in 1964, or if they were, didn’t pay a lot of attention to license plates back then.  My fear is that they will see me coming without a front plate and stop me, even though it’s perfectly lawful.

The problem is that they won’t be familiar with the law that allows me to use my year-of-origin plate, and they won’t be aware that New York issued only a rear plate that year.  For this reason, I carry around a copy of the law to show them.  Still, that doesn’t mean they will accept that what I show them is correct, and they may ticket me or worse anyway.

So when does the law count? Should it be subject to the cop’s “reasonable” knowledge of the law, or lack thereof?  And when the cop is wrong, what does that mean for the defendant?  A right without a remedy is no right at all, and it will take a strong adherence to principle for the Supreme Court to require the police to do better than “oops.”

It would feel a whole lot better if the law at issue wasn’t such an outlier, so archaic, because the application of their decision in Heien could open the door to a whole lot of mischief by rewarding ignorant cops.  Or more likely, cops who feign ignorance so they can stop at will and say “oops” afterward.

Update:  At Bloomberg View, Noah Feldman offers his analysis of Heien:

The court should decide the case for Heien, for a straightforward reason: A mistake of fact is not the same thing as a mistake of law. Police are fallible humans, and it’s appropriate to respect their reasonable factual errors. But when it comes to the law, the police should operate under the exact same presumption as ordinary citizens.

Because civilians are presumed to know the law, and punished even if they don’t, the police should operate under the reciprocal assumption. They should be presumed to know the law, and the government should lose the case if it turns out that the police didn’t.

That’s a good thought, and it certainly appeals to our sense of fairness, but legal reasoning?

It isn’t only that what’s sauce for the goose is sauce for the gander. The presumption that we all know the law plays a crucial role in the ideal of due process, specifically the notion that no one should be punished without prior notice of the law he has violated. Sometimes called the “principle of legality,” the idea is that there should be no punishment without law — nulla poena sine lege, if you’re into law Latin.

I am into law Latin, but remain unsatisfied. Heien isn’t being punished for not having two stop lights, but for the cocaine found in the subsequent consent search.  I  know that doesn’t make sense to non-lawyers, but that’s the law. The question is whether the coke gets suppressed for a 4th Amendment violation.

Is there a difference between “criminals” being held culpable despite their ignorance of the law and police stopping someone for a violation because of his ignorance of the law?  That’s the question. It doesn’t answer itself, as least not just because we want it to.

Update 2:  Orin Kerr went to oral argument this morning and offers his recap.  I vote for improvidently granted. Not that anyone cares.