It began with the misbegotten Whren decision. when the Supreme Court broke through a wall that had, until then, connected your life to some small semblance of truth. That was when the Court rationalized away the need for police to be honest and held the pretext car stops were lawful.
For the unfamiliar, this means that if the cops wanted to stop you for drugs, but lacked probable cause, they could manufacture a reason, like you turned without signaling, and use that to justify the stop. Given that it’s nearly impossible to drive any distance without committing a violation of some law, honest cops only needed a little patience. Dishonest ones, less so, since most of the violations require no objective evidence anyway, and any cop can make up an excuse at will. The Supreme saw no reason to discourage this, and passionate advocates for the children applauded as hard as they could, because there’s always a crime that must be stopped.
But the next step in the process was a little more shocking, because the Court believed that it had already given cops carte blanche to stop motorists at will, and yet dishonesty wasn’t enough.* Despite handing cops the ability to say “I observed the defendant change lanes without signaling,” a claim that couldn’t be objectively proven or disputed, and so would prevail every single time, cops kept coming up with reasons for stops that were legally wrong. So the Court fixed the problem in Heien v. North Carolina, where they extended the bounty of dishonest by adding in stupidity.
Before Heien, there was a bright line test that the story cops made up had to at least be a crime. When that proved too much for police to accomplish, they moved he goal posts to criminalish, because actually knowing what was unlawful was the bar by which citizens were judged, but too much to expect of cops. USA Today’s Brad Heath twitted a great quote** from United States v. Barnes that reflects the shamelessness of this contention.
Federal agents (who aren’t lawyers) can’t be expected to know the full extent of federal regulations, judge says. pic.twitter.com/U2FT2MIkHq
— Brad Heath (@bradheath) May 31, 2016
The absurdity of the court’s rationale would be good for a party joke but for the fact that this is serious. Of course, it’s true that no federal agent (and for yuks, let’s add, because he’s a non-lawyer) could know every law and regulation. The reason this is funny is that no lawyer, no judge, no legislator, no one, knows every crime. No one has even been able to count how many exist, with best guesstimates at 35,000 federal crimes (including regulatory offenses), plus all the state, local, etc., crimes on top of that. The ridiculousness of it all is manifest, but that doesn’t mean ignorantia juris non excusat won’t land your butt in prison.
What this reflects isn’t sound legal doctrine, but a policy choice: that cops get a free pass and you don’t. The less they know, the broader their authority. The less they know, the more luxurious their baseless assumptions.*** The less they know, the more we forgive their errors.
But when the Supremes trashed rights in favor of a balancing test in Heien, they crafted the reasonably stupid cop test, conditioning ignorance of the law on its being “reasonable,” because they would have just looked silly saying “no matter how stupid the cop is, it’s cool with us.” This raises the question of where, or whether, the unreasonably stupid cop test would draw the line.
Two unnamed Cochise County, Arizona deputies caught a whiff of weed emanating from Kyle Stoll, so they put their heads together and went after him as he drove away. Boom, they had him! His rear license plate had a white light, like every other car ever. A crime, they exclaimed!
So the deputies followed Stoll’s SUV for a block or two after it left the store and decided to pull it over because they saw a white light coming from the license plate lamp, which they claimed violated Arizona Code Section 28-931(C).
“All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color,” the provision states. “Except that the light illuminating the license plate or the light emitted by a backup lamp shall be white.”
Cochise County Superior Court Judge James L. Conlogue first held the two deputies fell below the intelligence threshold required of sentient beings, then reversed himself. As the appellate court described it:
At the hearing on the motion for reconsideration, a patrol commander from the sheriff’s department testified that the department had trained deputies for years that any rear-facing white light on a vehicle other than a backup lamp violated § 28-931(C). The trial court granted the state’s motion to reconsider, vacating its earlier suppression order. The court found “the Officer was objectively reasonable in applying the laws [as] he believed [them] to be at the time, particularly given his training in the Department.”
Cool trick, right? Train them wrong, and wrong becomes close enough, no matter how flagrantly wrong it is, or how obvious it should be (because, you know, every car has a white license plate light as standard equipment). This detail was not missed by the Arizona Court of Appeals, which noted that if the Cochise County deputies’ stop was good, every car (including theirs) could be stopped. The court reversed, calling the deputies’ judgment call “absurd.”
So the slide down the Whren slippery slope finally reaches its conceptual ledge. When the cop’s justification is “absurd,” it’s too stupid for even a court to approve. At least, on appeal, provided the intermediate appellate court’s holding isn’t appealed, because if a cop can’t figure out a way to justify a stop without being absurd, maybe it’s time to water down the requirements just a little bit more. We certainly don’t want anybody getting away with anything just because the constable is a moron.
*This wasn’t the first time the Supremes made a mistake by overestimating people’s intelligence. They thought the Miranda warnings would be the end of confessions, as nobody would be stupid enough to talk to police after being told, told, they had the right to remain silent. And yet, talk they do. And talk and talk and talk. And talk.
**Brad has an unfortunate practice of twitting pics from decisions without links (or even case names) to the decisions themselves. So while we get tidbits, that’s all we get. Edit: Tim Cushing was kind enough to provide a link to the opinion in United States v. Barnes.
***For example, “I didn’t know that he wasn’t armed, so when he reached into his car to retrieve his driver’s license, after I commanded him to give me his driver’s license, I didn’t know if he had a weapon in the car, so I shot him.” The more you don’t know, the more you’re allowed to do.