What a gripping title! This post raises the question of whether evidence obtained as a result cops’ good faith mistakes of fact or law will survive motions to suppress. And the answer is: It depends; which Constitution are you arguing under?
In the last few months, criminal defense lawyers across the country collectively moaned a moan of moanly pain in light of the abomination known as Heien v. North Carolina. In Heien, the United Supreme Court decided that the theory of reasonable mistakes of fact by law enforcement not being subject to suppression should be extended to cops’ reasonable mistakes of law. In other words, while “ignorance of the law” is no excuse for a citizen who unwittingly breaks the law, it is an excuse for a cop – the very person who we would expect to know the law – to justify his unwitting breaking of the law.
It is settled law that, for example, a cop who makes the mistake of fact that a driver is not wearing his seatbelt (but who is in fact wearing his seatbelt) and who pulls that person over will not be deemed to have acted unreasonably if the mistake of fact was reasonable. And if the officer then develops probable cause to search the car and finds a kilo of cocaine, that subsequent search will be deemed reasonable because it was supported by probable cause to search; and the kilo of cocaine will not be suppressed, or excluded, even though the initial seizure of the defendant was based on a mistake of fact. As long as the mistake of fact was reasonable. His reasonable, or good faith, belief that the properly-seatbelted driver was not wearing his seatbelt, will not result in the subsequent search – if supported by probable cause to search – and the kilo of cocaine being suppressed or excluded. This is the mistake of fact scenario.
This is the mistake of law scenario. Until Heien v. North Carolina, it has been settled law that the same rule does not apply to mistakes of law. Mistakes of law are – or were – presumptively unreasonable. No good faith exception applied in cases where the policeman made a mistake of law. For example, evidence obtained from a policeman’s stop of a car that is traveling 55 mph in a 55 mph zone that the cop reasonable believed to be in a 35 mph zone will be suppressed. The mistake of law – however reasonable – will not survive the motion to suppress. Until Heien v. North Carolina, that is. Thanks to Heien, the cop’s ignorance of the law will forgive his unlawful action, and any evidence obtained as a result of that unlawful action will not be suppressed or excluded.
In Heien, the policeman stopped a car because it had only one working brake-light. In North Carolina, it turns out, a car need have only one working brake-light; however, the policeman believed that the law required all brake-lights to be working. He pulled the car over – for something that is not a violation of the law – and somehow got Mr. Heien to consent to a search his car; that search yielded cocaine somewhere in the car. Prior to the Heien decision, the policeman’s ignorance of the law – or mistake of law – would not have served as an excuse for his actions, and the cocaine that was seized would have been suppressed (bad stop; cocaine not coming into evidence). In Heien, the North Carolina Superior Court Judge inexplicably broke with precedent and denied the Defendant’s motion to suppress (good stop; cocaine coming into evidence). The Defendant appealed to the Court of Appeals, who, relying on precedent, reversed the Superior Court Judge’s decision (bad stop; cocaine not coming into evidence). The State appealed to the North Carolina Supreme Court, who (and this happens a lot in North Carolina – our two appellate courts are in a pissing contest with each other), reversed the Court of Appeals decision (good stop; cocaine coming into evidence). The Defendant appealed directly to the US Supreme Court, who agreed to hear the case. The US Supreme Court sided with the Superior Court Judge and the NC Supreme Court, and denied the motion to suppress (good stop; cocaine coming into evidence).
I’m not going to comment on that lone employee of the state choosing to create new law, or the politics behind North Carolina’s Supreme Court decision, or the motivations behind the US Supreme Court’s decision. I’m pretty sure I’ve already done that in a prior post. This post deals with the question of whether, even in light of Heien, evidence obtained as a result of a cop’s good faith mistake of law or fact can be suppressed.
In North Carolina, evidence obtained unlawfully but in good faith – whether a mistake of fact or law – .can, and in fact, should be suppressed pursuant to State v. Carter, a 1988 North Carolina Supreme Court case. This case is the landmark case that declares there to be no good faith exception under Article 1, Section 20 of the North Carolina Constitution to the exclusion of evidence obtained by unreasonable search or seizure. I blogged several years ago about the legislature’s attempt to influence the Supreme Court into overturning State v. Carter when it re-wrote NCGS 15A-974 (“Evidence shall not be suppressed under this subdivision if the person committing the violation of the … provisions under this chapter acted under the objectively reasonable, good faith belief that the actions were lawful.”). According to Carter, whether the reasonable or good faith mistake is one of fact or law, it makes no difference as to the suppression issue; the evidence will be suppressed because the North Carolina Constitution does not recognize a good faith exception to the exclusionary rule. But, Heien, taken together with the new 15A-974, would seem to signal the end of North Carolina’s bright-line rule that unlawfully-obtained evidence will be suppressed – regardless of good faith.
But not so fast.
State v. Garner, a 1992 North Carolina Supreme Court case states that both the Federal.and North Carolina Constitutions protect the “same fundamental right to be free from unreasonable searches and seizures” – the Fourth Amendment in the Federal Constitution; and Article 1, Section 20 in the North Carolina Constitution. But while there is a recognized good faith exception to the exclusionary rule under the Federal Constitution, there is no such exception under the North Carolina Constitution (State v. Carter). And the legislature’s enacting a good faith exception to the exclusionary rule under the re-written version of 15A-974 is meaningless, as that exclusion applies only to motions to suppress pursuant to the statute alone and not the State Constitution. But a Defendant’s moving to suppress evidence under only the Federal Constitution, opens the door to the good faith exception argument. It is important, therefore, for defense lawyers to make their motions to suppress evidence that was unreasonably obtained under Article 1, Section 20 of the North Carolina Constitution either in lieu of or at least, in addition to the Fourth Amendment to the Federal Constitution.
Back to Heien v. North Carolina. The Defendant in Heien limited his constitutional argument to the Fourth Amendment, and unfortunately gave the US Supreme Court the opportunity to curtail citizens’ freedom even more than it already was by allowing policemen’s mistakes of law to be forgiven and for unlawfully-obtained evidence to be used against us. As a North Carolina criminal defense lawyer, I feel I owe an apology to the rest of the country for Heien: Sorry; we foisted this terrible law on you. What the Defendant in Heien should have done was moved to suppress the evidence under Article 1, Section 20 of the North Carolina Constitution. This way, the Fourth amendment would not be relevant as North Carolina’s Constitution and case-law provide greater search and seizure-protection than the the Federal Constitution and case-law do. Had Heien moved for suppression under the North Carolina Constitution, any appellate court would have been obliged to suppress the evidence as North Carolina’s Constitution does not recognize a good faith exception to the exclusionary rule – whether the mistake was one of fact or law.
Scenario: A policeman is behind a car in North Carolina; he runs the car’s registration through the Division of Motor Vehicles’ computer system; the information the policeman receives is that there is an insurance lapse on this car and that the license plate must be seized; the policeman stops the car and after talking to the driver becomes suspicious that the driver is impaired; he investigates the possible drunk driving violation and arrests the driver for driving while impaired. It later turns out that the Division of Motor Vehicles’ information about the insurance lapse was incorrect – there was no lapse.
Issue: Should the evidence beyond the stop of the car be suppressed?