At Volokh Conspiracy, Orin Kerr raises a troubling 4-3 ruling out of North Carolina, State v. Helen, that held the Fourth Amendment allows a search and seizure based upon a “reasonable” mistake of law. The facts, as Orin rightly notes, are about as good for the prosecution as they get.
An officer spotted a car with a broken rear right brake light. The officer pulled over the car, and the traffic stop eventually led to the discovery of drugs in the car. The defendant was convicted, and on appeal persuaded the North Carolina Court of Appeals to adopt a rather surprising interpretation of the traffic laws. According to a long statutory analysis from the North Carolina Court of Appeals, interpreting several archaic sections of the traffic code, it was actually legal to have one broken brake light as long as the other brake light functioned properly.
The cop told the truth as to the reason for the stop, and, as it turned out, the facts gave rise to no violation of the traffic code, and therefore no legal justification to stop the defendant. The ensuing search which produced drugs, therefore, would never have happened but for the stop. This would seem a slam-dunk suppression, but no.
A divided North Carolina Supreme Court ruled that the stop was constitutionally reasonable. The officer had a reasonable belief as to what the traffic laws meant, the majority reasoned, and he acted reasonably. Because the Fourth Amendment requires reasonableness, this is all the Fourth Amendment requires and the resulting stop was constitutional.
The dissent agrees that the officer acted reasonably in a generic sense, but it argues that we would not want to systemically allow stops of people who are not breaking the law at all based on erroneous officer understandings of what the law is. The dissent also points out that this is like an exclusionary rule case in disguise: The majority’s reasoning is akin to saying that there is a good faith exception at the remedies stage, the kind of thinking that should not infuse the court’s reasoning at the initial stage of whether a constitutional violation occurred.
Orin goes on to explain why his sympathies lie with the defense in this case, that traffic laws being more regulatory than criminal in nature, the scope of authority they confer is limited to actual violations regardless of reasonable mistaken beliefs. He also agrees that “reasonable” analysis is more appropriate for remedy than rights. His third reason is the most interesting:
[A]s a Criminal Law professor, I can’t help but approach the question by reference to the doctrine of mistake of law in criminal law. When a citizen makes a reasonable mistake of law as to what is criminal, the general rule is that ignorance of the law is no excuse. If a citizen reads the law and perfectly reasonably thinks his conduct is lawful, only to have a court take a surprising reading of the criminal law and say he is guilty, the courts say “enjoy your time in prison, Mr. Marrero.”
The mistake of law platitude is trotted out fairly regularly with regard to police, given how regularly they are drop-dead wrong in their express assertions of what the law either requires or prohibits. As many argue, why us but not them?
While this may be one of the rare instances where the adage applies, it’s still not really a viable fit. Would this make the officer liable for kidnapping for the seizure, or liable in tort for the violation of civil rights? If so, cops would need a judge, or at least a lawyer, in every cruiser to provide a legal opinion before acting. More to the point, the purpose of criminal law is to prohibit conduct deemed malum by the legislature, not to anger the citizenry but to prevent the conduct.
That’s why ignorance of the law is no excuse. Its applicability to police in the performance of their authorized duties doesn’t fit the purpose. We want police to act in good, even if mistaken, faith, and hash out the details in court afterward, so that we are protected up front from the initial wrong and its potential harm.
But there is another perspective which, while it’s related to Orin’s rights/remedy distinction, seems to better explain why this decision is plain, old wrong. The authority of the police to act is predicated upon a determination of the legislative branch that specific conduct is illegal. The courts have no authority to create crimes, and cannot authorize the police to act to prevent conduct that the legislature hasn’t determined to constitute a crime. They can interpret whether conduct is, or isn’t, a crime, but once they decide a crime did not occur, the court has exercised its power to the fullest.
The decision of the North Carolina Supreme Court is ultra vires, beyond the scope of its authority. They have, in effect, created a new crime. Actually, a whole new branch of crimes: horseshoe crimes. Horseshoe crimes are conduct that is reasonably close to a legislated crime, but falls just short. Close, but they still get a cigar.
There is no authority that permits a court to criminalize conduct that isn’t otherwise criminal. It may be reasonable for the officer to make a mistake, but so what? There is no offense of reasonably close to murder, or, as here, reasonably close to a traffic infraction for having a broken brake light. It either is or isn’t, as the legislature determined. If the lege didn’t think it was worthy of being an infraction, then it isn’t, and neither the police (the executive branch) nor the courts (the judicial branch) has any authority to make it so. The power to create a crime rests exclusively in the legislature, and they have spoken.
By introducing wiggle room into what conduct offends the law, a whole plethora of problems follow. Is there notice of horseshoe crimes? How could there be, since laws only give notice of what they prohibit. Worse still, they give notice of what they don’t prohibit, and that means a fellow should be able to comfortably drive around North Carolina with one working brake light without fear of being stopped.
Of course, Orin notes the cynical reality, that the police can always suggest to the lege that they close these horseshoe crime loopholes, and the legislatures tend to look favorably upon such requests. Being somewhat more cynical than Orin, the police can also just make up a reason to stop that they 110% certain constitutes a crime, thus avoiding the problem altogether.
But as a matter of doctrine, it makes no sense at all for a court to approve a horseshoe crime, as neither the police have any authority to act against lawful conduct, nor do the courts have the authority to make lawful conduct unlawful for the purpose of approving the outcome.
H/T John Wesley Hall at Fourth Amendment.
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I initially thought, “I hope SCOTUS takes it,” but then remembered Connick v. Thompson. SCOTUS is totally cool with prosecutors being ignorant of the law, so why not cops?
I don’t see it as the court acting ultra vires, though. The Judiciary did not search and detain the person without sufficient cause; the police, an extension of the Executive, did. The Judiciary merely failed to act to rectify the situation.
It’s not either/or. Both can exceed their authority independently. If it’s not a crime when the cops stop, it can’t be turned into a crime by the court’s acquiescence.
As for the Connick decision, while liability is an entirely different issue than authority, the Supreme Court’s reaction to it suggests that they are less than sticklers, and might well turn a blind eye to the problem.
What concerns me about this decision, other than what you stated above, Scott, is that this decision would not only give police no incentive to learn what the actual traffic laws were, but that it would seem to create a potential incentive to remain deliberately ignorant of the law or changes to the law, since the “reasonable” nature of the mistake at least presumes the ignorance of the officer at the time of the traffic stop. That and the possibility that prosecutors will now feel inclined to argue that, even if officers didn’t have probable grounds to detain or search, the officers believed they had the legal authority to do so, making a bad search merely a “reasonable” mistake of law and turning what is supposed to be at least a somewhat objective standard into a purely subjective one.
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But Greenfield, what other ruling would you expect out of North Carolina?? A former Confederate State in the Confederate States of America?? A state that sacrificed over 40,000 of its citizens to defend the indefensible – the right to keep human beings as property, as livestock, really; human beings no different in their minds than oxen, cattle, or pigs?? . . .
So, after further reflection, would you actually be audacious enough to believe, even with all the years that have passed since, that North Carolina would cherish the words and spirit of the U.S. Constitution?? Especially if those words give rights to criminals?? Look, as you well know, criminals are entitled to even fewer rights than animals, correct?? . . .
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You’re quite right. The less they know, the more latitude they would be given. Then again, that’s the way it works with pretty much all of policing and prosecution.
They hold some parts of the Constitution quite dear. Just not the same ones as me.
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But Scottie Boy (that’s what my mommy still calls me), it is my understanding is that the U.S. Constitution and its Amendments are not constructed as an à la carte menu, to be picked and chosen from; instead, it is prix fixe with set courses, of course (or coarse, as you wish) . . .
If you don’t like what you’re being served, you can always walk out the door, mosey down the street, and into another restaurant with a different menu, I guess . . .
Though I’m not quite sure what one is to do in the case of a great menu executed by a horrible, incompetent chef. Do you just keep sending the food back to the kitchen until she gets it right?? . . .
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I dislike Scottie Boy immensely, and have a long history of banning anyone who uses it. Just so you know.
Heaven help the next Albert Lee Scott who ends up dead due to a “reasonable” mistake of law.
Once we get on that particular slippery slope, it will eventually happen.
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Point, well, taken . . .
In my defense, I meant it as a term of endearment . . .
Further, one must understand that I’ve been infantilized my hole life and, just recently, I was judged to be 50-years-old. I was the last of a large litter. My family referred to me as “The Baby™” well into my twenties. This moniker, even though by then I was earning three times that of my Paw at the time. I always thought it was quite funny . . .
And, as to my Maw calling me “Scottie Boy”, to this day, she says it with such love and affection that it melts my tiny, hardened heart. Which, I guess, is what I was attempting, oh-so-clumsily, to pay forward to you. I failed, and epically . . .
The next point I must argue is that I am relatively new to your, indeed, outstanding blawg. I was, obviously or not so obviously, ignorant to this particular unwritten house rule. I submit that my transgression against you should be considered a “reasonable” mistake, though I also comprehend that ignorance is never an excuse, er um, never mind. I promise I will not make that exact same mistake again, though I will make others, of that I assure you . . .
Finally, my offending comment might be attributed to one of my “conditions”. They™ have diagnosed me with “boundary issues” – that I have a great propensity and compulsion to step over the lines, whatever that means. You see, to me, how on earth do you ever really know where the boundaries and lines are if you never cross and/or trip over them?? . . .
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Aww. Best to maw and paw.
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The best isn’t good enough for my Maw or my Paw,
Much less my two Left Feet,
Perhaps something better,
I’ll give them something to eat,
Or better still, maybe I’ll show them your b-law-g ,
As they might say in MA, I’m like an out-of-control caw . . .
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What do you mean “the court created a crime,” i.e., that it defined conduct as a crime that the legislature did not? The conviction here was for a real up-and-down-vote crime — drug possession. But you argue, Scott, “The courts have no authority to create crimes, and cannot authorize the police to act to prevent conduct that the legislature hasn’t determined to constitute a crime. They can interpret whether conduct is, or isn’t, a crime, but once they decide a crime did not occur, the court has exercised its power to the fullest.”
Again: the court wasn’t ruling on whether or not drug possession was a crime; it didn’t have to. It was ruling on the application of the exclusionary rule — a principle of law that wasn’t enacted by the legislature at all, in fact, as SCOTUS pointed out in Arizona v. Evans. They didn’t “create a crime,” they considered whether a search that took place in the absence of a crime fits the circumstances under which the judicially-created exclusionary rule should govern.
You might say that if there’s no crime, there are no such circumstances, but whether or not that is the case is entirely within the bailiwick of a court reviewing whether or not evidence should be excluded. I’m not sure what I think of the outcome here, and appreciate the “slippery slope of ignorance point.” But for these reasons I don’t think the “ultra vires” argument works.
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If not “ultra vires”, maybe then the Ebola virus?? Can it be argued that such rulings, upholding such principles, are analogous to an infectious and deadly disease, which needs, in no particular order, to be quarantined, inoculated against, and ultimately, if it is within our power, to be cured?? . . .
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This is an excellent example of why a smart civil lawyer shouldn’t dabble far outside his niche. You’ve missed an entire level of analysis as to the stop. But no reason for a trademark lawyer to know such stuff.
You might be right about that. But of course, you might be wrong, and as you acknowledge I wouldn’t necessarily know if you were unless I did a bunch of, you know, reading and stuff, assuming it warn’t too hard to follow.
Assuming I want to try, however, what exactly is the leading case on which you base your “ultra vires” analysis?
Nope. Private instruction costs extra, especially when you ask the wrong question.
@Ron Coleman, I think Scott may have just set you up on a blind date with U.S. v. Leon, 468 U.S. 897 (1984). Be careful though. I hear she likes to split the bill between the violation stage and the remedies stage.
The authority/remedy issue is very nuanced. While it’s a shame that there’s wiggle room on the back end, it’s a tough distinction for non-CDLs to recognize. Now if Ron had to ask Leon on a date by himself…but no one should have to go out with Leon. Or a menage with Leon and Evans. Ewww.
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Here’s a real story for ya; I think it contains lots o’ ultra vires, or lack thereof, IDK . . .
[Ed. Note: Balance of comment deleted. Another boundary, personal stories only tangentially related to a post. Best told on your blog. Not mine.]