HEIEN v. NORTH CAROLINA: ANOTHER ASSAULT ON OUR FREEDOM
What an abomination. And disturbingly, this US Supreme Court case (which North Carolina’s Court of Appeals got right but – because of the stupid in-fighting between our two appellate courts (remember State v. McKenzie) – the State Supreme Court got wrong) was an eight to one decision, with only Justice Sotomayor dissenting in favor of less Government intrusion in our lives (which I thought was a cornerstone of conservatism).
In Heien, the car that Heien was a passenger in was stopped by a member of the local constabulary after he noticed that the driver appeared “very stiff and nervous,” and that one of the car’s brake lights was not working. On the basis of the inoperable brake light, the policeman pulled the car over. Let’s stop right here. There was a time, not so long ago, when this stop would have been unreasonable under the Fourth Amendment as being a pretextual stop; this protection of our freedom from an unwanted encounter with the government was taken away from us in 1996 by the horrible decision of Whren v. United States. To be clear, prior to Whren, a pretextual stop – a stop based on an actual violation of some minor infraction that was merely an excuse for a policeman to create the unwanted encounter for some other purpose – would have been unconstitutional. In Heien, the stop was not only pretextual, but the pretext – the burnt out brake light – it turns out, was not even a violation of any law.
Heien was stopped for not violating the law.
Heien was stopped because the policeman, a certain Surry County Deputy Sheriff (now now, no Southern redneck cop jokes) by the name of Matt Darisse, was ignorant of the law that North Carolina requires only one operating brake light. Deputy Matt Darisse was not even aware of the laws he is sworn to uphold. And, following this garbage of a US Supreme Court decision, he has every incentive to remain ignorant of the law. As does every other policeman in the country thanks to this awful opinion.
Following the stop of the car that Heien was in, Deputy Darisse told the driver that as long as his license and registration checked out he would simply receive a warning ticket (for a non-existent offense); Darisse returned to his police car to run the license and registration (for anyone who has undergone a similar event, you’ll know that this is not a quick process; and the longer the seizure the more intensive the Fourth Amendment scrutiny is supposed to become). The license and registration “checked out”; Darisse wrote out the warning ticket (for the offense that isn’t), returned to the car he had pulled for no valid reason, gave the warning ticket to the driver who had committed no offense … but did not allow the driver and Heien to be on their way, as the constitutional caselaw on the issue of the length of detention cases requires (and of course, in all of those cases, the initial stop was based on an actual violation of some law, such as a seat belt violation). But Darisse, Instead of walking back to his car and leaving the driver and Heien to go about their business, extended the seizure because he “had become suspicious during the course of the stop – Vasquez (the driver) appeared nervous” and “Heien remained lying down (in the back seat) the entire time, and the two gave inconsistent answers about their destination.” Whoa! Hold on! So Heien, the passenger in the car being driven by the nervous-acting guy with the Hispanic name, remained lying down during the encounter, and at some point during the encounter was subjected to questioning about his destination, as was Mr. Vasquez? It appears so. What is the significance of Heien choosing to continue his nap in the back seat? And what’s all this about the questioning of their destination? When did that happen? Why did that happen? Why are we being told some things and not others? Remember, the author of the opinion gets to characterize and describe the facts however he wants. I’d love to know more.
Back to what seems to have happened: Darisse, during the period of time that he should have been walking back to his car having concluded the seizure for a crime that dare not speak its name (because it doesn’t have one), decided to extend the seizure and asked Vasquez “if he would be willing to answer some questions.” (Let’s stop again, my devoted ones. Reminder: The single most important piece of advice I can give you – Rule 1: When a policeman asks you if you will consent to or be willing to do anything, the answer is always NO). Vasquez said YES. And Heien “consented” to a search of the car because Vasquez told the cop that the car was Heien’s (which the cop would have known when he ran the registration which “checked out”). So, “Darisse, aided by a fellow officer who had since arrived began a thorough search of the vehicle.” Wait a minute: who is this other officer? And when did he arrive? And what was he doing? What really happened out there?
The policemen searched the car that one of them pulled for not violating a law, which led to the issuance of a warning ticket for a non-violation of a law, which was a part of an encounter that involved questioning the occupants of the car about their destination, which was part of an encounter that extended beyond the initial purpose of the stop (which should never have happened in the first place), which also included the appearance of another policeman, and which resulted in Mr. Heien giving “consent” to search his car. The cops found drugs in the car. The exclusionary rule would have suppressed this evidence if the stop were found to be unconstitutional, as the North Carolina Court of Appeals so found, but both the State and Federal Supreme Courts contorted themselves into not finding.
Let’s look at some of the language in this drivel of an opinion:
“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 law or fact – must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States (citation omitted). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through sloppy study of the laws he is duty-bound to uphold.”
Right. Because we all now how frequent and successful lawsuits brought against policemen are!
“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. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.”
And there you have it. In plain view: The ends do justify the means. Machiavelli was right. Bye Bye exclusionary rule. Hello Orwellian police-state nightmare.
One of the the things that is so repulsive about this opinion is the dishonesty of it. Chief Justice (I know!) Roberts wilfully ignores the actual precedent in mistake of law cases that overwhelmingly conclude that mistakes of law are per se unreasonable, and, instead reaches back more than 200 hundred years to find cases that support his horrible conclusion. And those cases, which even he admits (because he has to) aren’t actually on point, deal with 18th century customs cases that have nothing to do with the Fourth Amendment but are, as Sotomayor in her dissent says, “equivalents of our modern-day qualified immunity jurisprudence for civil damages.” Roberts then goes on to shamelessly mis-characterize a number of cases to justify his position. “To be reasonable,” intones Roberts, “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.’ Brinegar v. United States, 338 U.S. 160, 176 (1949).” But, as Sotomayor, points out: “all that our opinion in Brinegar actually says is that probable cause exists where ‘the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Sotomayor continues: [Brinegar] thus states the uncontroversial proposition that the probable-cause inquiry looks to the reasonableness of an officer’s understanding of the facts. Indeed, Brinegar is an odd case for the Court to rely on given that … it subsequently emphasizes that “the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. Again, reasonable understandings of the facts, not reasonable understandings of what the law says.” Thank you Justice Sotomayor for letting us know what Brinegar actually says and not the lie put forward by the Chief.
The majority also relies on Michigan v. DeFillippo, a 1979 US Supreme Court case, to justify its perverse conclusion. In DeFillippo, a policeman arrested DeFillippo for violating a statute that was later held to be unconstitutional. Does Roberts really think we’re this stupid? Obviously, the policeman’s actions in DeFillippo were reasonable; he was enforcing a law that, at the time of the arrest, was actually on Michigan’s books. He’s a cop not a Constitutional scholar. He was duty-bound to enforce the law. “Police are charged to enforce laws until and unless they are declared unconstitutional. … Society would be ill-served if its police officers took it upon themselves to determine which laws are and which laws are not constitutionally entitled to enforcement.” DeFillipo. As Sotomayor says: “DeFillippo … did not involve any police “mistake” at all. Rather, DeFillippo involved a police officer correctly applying the law that was then in existence and that carried with it a presumption of validity. [In Heien], by contrast, police stopped Heien on suspicion of committing an offense that never actually existed. Given that our holding in DeFIllippo relied so squarely on the existence of a law criminalizing the defendant’s conduct, and on the presumption of validity that attends actual laws, it can hardly be said to control where, as here, no law ever actually criminalized Heien’s conduct.”
It’s funny how Republicans bleat on and on about the evil of government interference but are strangely silent when the governmental interference is an interference with our basic individual rights to be left alone by the police. I have yet to identify the “freedom” Republicans are always claiming to want to protect. The freedom of the rich and corporations to avoid paying taxes and to do whatever they feel like in the name of the free market? The freedom of women from having to make choices over their own bodies?
I hope prosecutors around the country will be sparing and reasonable in their use of Heien’s reasonable mistake of law holding, but I’m not holding my breath. I would like to say that I trust criminal trial court judges around the country to be sceptical of cases before them that deal with a policeman’s reasonable mistake of law, but I’ve been practicing law too long to be so naive. But I urge and beg my fellow criminal defense lawyers to fight to the bitter end every single mistake of law case they encounter as being unreasonable. We are the the vanguard of freedom. We are the check on a runaway government. We are the guardians of liberty. As the late, great Jim Valvano said: “Don’t give up. Don’t ever give up.”