Heien v. North Carolina: Close Enough

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.”


23 thoughts on “Heien v. North Carolina: Close Enough

  1. Bartleby the Scrivener

    This is damned dangerous, frightening, and disgusting.

    The words of a law have meaning, and we should follow that meaning as written. If there is a lack of clarity, then we can clarify the law. There is no lack of clarity here.

    A person should be able to read a law and know exactly what is required, allowed, or proscribed by said law. Judicial rulings should not ever ignore the explicit words of the law unless a higher law supersedes the law being ruled upon.

    “You know what I mean” has no place in legislation or jurisprudence.


    1. SHG Post author

      The conduct of the police must have a baseline. It was once truth, fact and law. Then just fact and law. Then law. Now it’s all gone to fuzzy. There is no longer any baseline upon which we can rely.

  2. Rob Poggenklass

    “I would hold that determining whether a search or seizure is reasonable requires evaluating an officer’s understanding of the facts against the actual state of the law.” It is upsetting that we live in a world in which that line comes from the dissent. It’s worse that no one in either house of Congress is likely to do anything about it.

  3. Fubar

    Search this lim’rick at once, without pause.
    It’s likely a crime, because laws.
    And if you need one,
    Bring your own throwdown pun,
    Because there’s no sanity clause!

    1. Wheeze the People™

      There once was a cop from Nantucket,
      Who read the Fourth Amendment but said “Fuck It”,
      “I’ll search and seize where I like”,
      Since the Supreme Court failed to plug the holes in the dike,
      And to unwashed masses, he simply exclaimed, “Suck It” . . .

        1. Wheeze the People™

          As much as I value your input, at the end of the day, it’s just one little man’s opinion; hence, in deference to my inherent awesomeness, I must reject it out of hand while searching out other opinions that support my confirmation bias and the belief that I am The Special Snowflake™ . . .

          Now if you would kindly excuse me, it is time to retire to a place of solitude and provide myself with my nightly self-stimulated, auto-erotic tummy rub — while, God willing, channelling the extended release version . . .

          1. Fubar

            Dear Mr. Wheeze,

            I must respectfully characterize our most generous host Mr. Greenfield’s assessment as preliminary. Although first impressions are often quite correct, they sometimes miss more subtle details which show great promise.

            With that in mind, I’ll put down my sippy cup and review the desired end, a more proper Limerick; then analyze your work, and if possible, refactor it to more closely approach that end.

            First, a Limerick often expresses a bawdy or obscene theme. I think your offering has accomplished that with alacrity.

            Second, a Limerick consists of five lines with an AABBA rhyme scheme. You have indisputably accomplished that.

            Third, a Limerick’s lines conform metrically, at least loosely to the following scheme:

            The first, second and fifth lines consist of three (3) anapestic feet, but occasionally employ catalexis, missing or additional unstressed syllables, which shift the meter to amphibrachic.

            The third and fourth lines similarly consist of two (2) anapests or occasional amphibrachs.

            Your first line lies well within that standard: “There once was a cop from Nantucket“.

            Your third line, ““I’ll search and seize where I like”,” comes close to the standard scansion metrically, although unfortunately your initial unstressed syllable “I’ll” tends to force a tribrach followed by a dactyl.

            Your second, fourth and fifth lines, however, fall quite wide of the mark.

            Overall, I would score your effort as approximately 20%, which perhaps coincidentally is the same as the percentage of innocent coeds which some claim are raped on college campuses. Do you believe in coincidence? Have you attended a coeducational college recently? I hope I haven’t implicated you in this alleged crime wave.

            But I digress. Let’s refactor your offering into an arguably more Limerical Limerick:

            There once was a cop from Nantucket,
            Who of reasonable searches said “Fuck it!”
            “I’ll search and I’ll seize
            Wherever I please.”
            “Under Heien I can tell you to suck it!”

            See. Wasn’t that easy? I raise my sippy cup to you to toast your valiant initial effort.

            Bear in mind, of course, that it’s a long way to Tipperary.

            Sincrly Yr hmble crrspndnt, etc., etc.


            1. Wheeze the People™

              Fubar, you’ve got the technical chops, fer sure, fer sure; I wasn’t even aware that Limericks are governed by a constitution of sorts, prolly instantiated by a few vulgar Leprechauns . . .

              My specialities are really scatalogical phraseology and Seussian poetry, both of which are more fecund pastures for expressing my art. Limericks, not so much . . .

              Thurston Bowel the Turd™
              aka Wheeze the People™

  4. Joe

    “… so too the government cannot impose criminal liability based on a mistaken understanding of the law.” I don’t follow this logic. Isn’t the whole point that the government IS imposing criminal liability based on a mistaken understanding of the law? Granted, it’s not imposing the liability on the police officer, but that’s not really what would have happened anyway. The remedy for an improper stop is not arresting the officer, after all. But after this case, the government can impose criminal liability on the driver, or, at least allow a criminal investigation to go forward, based on the mistaken understanding of the law. I’m pretty sure Justice Roberts is way smarter than I am, so there’s probably a good explanation for it, but I don’t get it.

    1. SHG Post author

      By Roberts reasoning, if he was being prosecuted for not having a second tail light, then it would be wrong. But since the stop gave rise to the search, and it was the outcome of the search that gave rise to the prosecution, it’s not imposing criminal liability for the mistake, but for the what the mistake uncovered.

      While there is much to blame Roberts for here, he doesn’t do what you think he does.

      1. Joe

        Ahh…ok. J. Roberts wasn’t referring to how things work after this ruling, but dismissing the “ignorance of the law” argument more generally. Thanks, and sorry for the distraction.

        1. SHG Post author

          No. Let’s try this one more time. The deft wasn’t convicted of a crime based on a mistake of law, but rather was stopped based on a mistake of law. The stop led to a search, which led to finding evidence of a crime. Due to this holding, the stop based on the mistake of law was not held to be unconstitutional, and the evidence found during the search following the stop not suppressed. He was convicted of a crime based on the evidence; the connection between the mistake of law (the stop) and the crime of conviction was attenuated by the search.

          So the point here is that the mistake of law doesn’t compel suppression of evidence of an actual crime, not that the defendant can be convicted of a crime that isn’t a crime.

          1. Joe

            Thanks. My mistake in looking at the original Roberts quote was that I thought he was saying that “ignorance of the law is no excuse” did not apply because, after this decision, the government could not impose criminal liability for a mistaken understanding of the law. So, I read that as saying that the cop, who had the mistaken understanding of the law, was now protected from criminal liability. And, given that the defendant had criminal liability imposed upon him based upon evidence obtained during the stop, it seemed Justice Roberts was splitting hairs to reach the result he wanted, though I understand the distinction between the stop, the search, and the eventual conviction.

            Anyway, I appreciate your clarification.

  5. Greg

    I think, therefore I am…..entitled to stop, search and seize.
    Next stop on this runaway train wreck – the Exclusionary Rule, or what’s left of it. After that it’s on to Terry v. Ohio.
    There is a new law in town – the ends justifies the means.

    1. SHG Post author

      We’re already down the remedy road with the good faith exception, although Heien also fudges the line between right and remedy. Suppression is being reduced to a battle of rhetoric, who comes up with the best spin, and the prosecution has always excelled at that.

    2. Aaron

      Terry v. Ohio isn’t next; it’s already been impacted by Heien. From Terry:

      “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, 392 U.S. 1,9; quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

      Heien threw out Terry’s requirement of “clear and unquestionable authority of law.” Now unclear, questionable authority is the rule. In all of the analysis I’ve seen, so far nobody seems to have taken notice.

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