It’s no surprise that the only Supreme Court justice who has any meaningful trial experience in a criminal courtroom is the lone dissenter. Bad as Fourth Amendment law has developed, at least there was one leg of the stool that still held weight: the law. The law is the law, for better or worse. Ignorance of the law is no excuse, goes the platitude.
No more. In Heien v. North Carolina, by a 6-2-1 decision, the Supremes have completed the fuzzying up of search and seizure law that began with Whren, where phony “objective” justifications for a stop were approved even though they bore no connection with reality or truth. The Court then followed through to mistakes of fact, built on Brinegar, but raised to an art form in Herring, where police incompetence that created the “mistake of fact” was sufficiently reasonable to cover their screw-up. But the third leg of the stool was the law; all else aside, there still had to be a violation of law. Not close to a violation. Not a kinda, sorta , law is too hard for dopey cops to know, violation of law. An actual, real, hard, passes muster with a court, violation of law.
No more. Chief Justice John Roberts opens his salvo thusly:
As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 573 U. S. ___, ___ (2014)…To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.”
With these words, you know that nothing good will follow. By exalting “reasonableness,” the Court ignores the Warrant Clause, as if it only applies to unreasonable searches and seizure, which of course renders it a nullity since unreasonable searches are unconstitutional anyway. If a search need only be reasonable, and the absence of a warrant does nothing to impair that conclusion, then there will never be a reason to obtain a warrant again.
Either probable cause exists or not, and it’s far easier to apologize later than get permission in advance. Not that it’s hard to get a warrant, but why lift a finger at all? Where before the presumption that any warrantless search was unconstitutional in the absence of a recognized exception, we’re now at the point that a warrant is only required when an exception demands it.
And so, the ruling:
Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.
Law isn’t a thing, but an “understanding,” and the rationale ultimately is based on “why not?” In an apparent hat tip to the obvious flaws of logic, C.J. Roberts tries to soften the blow, despite noting that “reasonable men make mistakes of law, too,” that applies only to police (who have one or two women on the force these days, it should be noted). To deflect criticism that this encourages cops to know (or claim) stupidity about the law, he writes:
Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law— must be objectively reasonable. . . . Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty bound to enforce.
The phrase “objectively reasonable” is a rhetorical device to soothe the fevered brow, as its incantation elevates the cop’s screw-up to a special plane, when it means nothing more than a judge, who will rule as a proxy for the objectively reasonable person, says, “meh, I guess anybody could make that mistake. Law is hard. Law is confusing. Can we really expect police to know the law they are charged to enforce?” Yes. We can. Of course we can, as without compliance with the law, they have no authority. The Constitution provides no free-floating right of government to “police” the citizenry based on whim, reasonable or otherwise, but only according to law. And the law is the law, not someone’s “objectively reasonable” mistake of law.
But this raises the specter of the platitude, that ignorance is no excuse. Roberts covers that as well.
Finally, Heien and amici point to the well-known maxim, “Ignorance of the law is no excuse,” and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law.
C.J. Roberts indulges in a bit of his own rhetorical gimmickry, as the point of the maxim is strict liability, that our society of laws holds all of us to its strictures. It is not merely a sword against the People, but a shield against the government as to impairment of all our constitutional right, not just conviction. Well, it used to be, anyway.
As Orin Kerr notes, the concurrence seeks to narrow the ridiculously vague “objectively reasonable” test, though it’s only supported by two justices and, even with Justice Kagan’s judge-worthy mistake test, is still absurdly broad. But this too fails to appreciate its application in the field, where police have become, at least in their own minds, the arbiters of law at the end of a gun.
The Supreme Court has now held that they are, indeed, the arbiters of the law, with the only condition being that they can craft a half-baked, phony, facile excuse for why they got the law wrong. The new test for “reasonableness” under the Fourth Amendment is how good a spin the prosecution and cops can offer for mistakes. As it turns out, this is the one thing that they’re exceptionally good at. The black letter law of Fourth Amendment is now “close enough.”