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A few thoughts on <em>Heien v. North Carolina</em>

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is “no.” In this post, I’ll explain the case and why I think the defense should prevail.

I. The Facts, and A Brief History of Brake-Light Law

The facts of the case are simple. A North Carolina police officer stopped a car for having a broken right rear brake light. The stop led to a consent search, and the search led to the discovery of drugs in the car. So far it sounds like a pretty routine Fourth Amendment traffic stop case. But here’s the twist: If you look closely at the text of North Carolina’s traffic laws, it’s at best unclear whether it prohibits driving with one broken brake light.

A little bit of history is helpful here. Decades ago, it was common for cars to come equipped with only one brake light. The early brake lights often had STOP written on them, and unsurprisingly they were known as “stop lamps.” At the time, it was common for the traffic laws to require cars to have only one stop lamp.

That’s antiquated now, of course. But a lot of state laws still have a residual form of this. In particular, many state laws require one working “stop lamp” for antique cars but two such stop lamps for more modern cars. To get a flavor of this common practice, see the laws of Florida, California, Texas, New York, Michigan, Tennessee, the District of Columbia, or Ohio.

North Carolina’s traffic law is different.  The key statutory provision requires that modern cars have “a stop lamp” but has no such requirement for pre-1956 cars. Here’s the language:

No person shall sell or operate on the highways of the State any motor vehicle, motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.

Violation of this law is a misdemeanor criminal offense, see N.C.G.S.A. § 20-176.

Why require only one stop lamp for more modern cars and none for older cars?  I have no idea.  It’s hard to know what the legislature was thinking. A few other states in the southern U.S. have traffic codes that also require only one stop lamp, perhaps just as a historical relic. See Alabama’s code, for example, which dates back to 1927. Georgia, West Virginia, and South Carolina have similar language but add the additional requirement that all original equipment has to be working properly, which as a practical matter requires multiple working brake lights. See, e.g., Georgia § 40-8-26; W. Va. Code Ann. § 17C-15-18(a)(1); State v. Jihad, 553 S.E.2d 249 (S.C 2001) (interpreting South Carolina’s brake light law). North Carolina’s law appears to be somewhat unique. It has a provision that the originally-equipped tail lights have to be working (that is, the red lights that go on when the front headlights or parking lights are on), but it does not appear to apply that same standard to brake lights.

Ok, back to the case. At trial, Heien argued that the North Carolina traffic law did not prohibit driving with one broken brake light so long as the other brake light was working. After all, with one brake light out and the other working, the car did have “a” functioning “stop lamp.” The North Carolina Court of Appeals agreed with Heien’s reading of North Carolina’s law. Under its decision, driving with one broken brake light is perfectly legal in North Carolina.

The state did not contest that statutory reading in subsequent litigation. Instead, the state relied on the idea that prior to the Court of Appeals’ opinion, a reasonable officer in North Carolina would have thought that it was unlawful to drive with one broken brake light. No one had looked closely at North Carolina’s statutory scheme in decades, after all, and the police and courts had long assumed that an officer could stop a car for having a brake light out. It seems like a common sense sort of thing, and the statutory issue wasn’t simple. Given that the Court of Appeals decision was the very first to read North Carolina’s law as allowing one brake light to be out, the state reasons, the stop should be ruled lawful because the officer’s belief and conduct were reasonable. On the other side, the defense argues, in short, that the stop was unlawful because what the officer saw was perfectly legal. The officer had no cause because no law was violated.

II. The Three Options, Not All Before the Court

Heien thus comes to the Court asking this question: Is the Fourth Amendment requirement of reasonable suspicion satisfied if the officer suspects conduct is afoot that is entirely lawful, but that the officer mistakenly thinks is unlawful because of his reasonable disagreement with subsequently-decided caselaw? Put another way, can a mistake of law by itself justify a Fourth Amendment seizure?

It’s critical to understand that there are three basic ways that the Heien case could be ultimately resolved under federal law. Here are the three legal paths courts could take:

  1. They could hold that the stop was lawful and the evidence should therefore be admitted.
  2. They could hold that the stop was unlawful but that the exclusionary rule does not apply under the “good faith” exception, so that the evidence should be admitted.
  3. They could hold that the stop was unlawful and that the exclusionary rule applies, so that the evidence should be suppressed.

An unusual part about Heien is that the Supreme Court isn’t being asked to pick among these three options.  Instead, the Court has two options:  It can either decide that the stop was lawful (choice #1) or that it was unlawful (either choice #2 or #3). The decision between #2 and #3 is not before the Court: The issue comes to the Court as a case about what violates the Fourth Amendment, not which violations of the Fourth Amendment trigger the exclusionary rule.

For that reason, it’s not clear that the result in Heien will make any difference as a matter of Fourth Amendment law. Given the uncertain scope of the federal exclusionary rule these days, a possible ruling for the defense at the rights stage might just be a prelude to a later defeat at the remedies stage under the Fourth Amendment. It would certainly matter to defendants like Heien under state constitutions that adopt the federal Fourth Amendment right but reject the good-faith exception. But purely as a federal Fourth Amendment matter, it’s not clear it makes any difference.

III. Why I Think the Defense Should Win

My own view is that the Fourth Amendment was violated and that the defense should win this case. I reach that conclusion for a few related reasons.

First, the state’s arguments are really about the remedy, not the right. Recent Fourth Amendment caselaw draws a sharp distinction between the two. To oversimplify a lot of caselaw, cases on the Fourth Amendment right ask whether the rules were technically followed, while cases on the Fourth Amendment remedy ask whether the officer’s violation was culpable under the circumstances. The government’s basic argument is that it was reasonable to pull over the driver based on the law as it was believed to be at the time; the officers who made the stop weren’t acting culpably or wrongly based on the situation they confronted. But that sounds like a remedies argument, not a rights argument. To my mind, that means that the Court should rule for the defense in this case at the rights stage and then remand for the state courts to consider the proper remedy. (The North Carolina state constitution rejects the good faith exception to the exclusionary rule, so I gather the state courts wouldn’t need to reach that issue in this case if the substantive state constitutional law matches the Fourth Amendment.)

Second, ruling for the government would create an uncomfortable tension with retroactivity law. All new Fourth Amendment decisions are retroactive to cases not yet final when the new case comes down. The new rule applies to the old case, rendering the old search unconstitutional even when it seemed perfectly constitutional at the time. Consider Davis v. United States, where the officer searched a car incident to arrest at a time when it was authorized by the Belton rule. When Davis was on appeal, the Court handed down Arizona v. Gant, which made the search in Davis unconstitutional. All parties agreed in Davis that the officer’s search was constitutionally unreasonable even though the officer reasonably believed that his conduct was perfectly lawful. That is, the officer’s stop was reasonable in the layman’s sense that a reasonable officer would have made it. But it was unreasonable in the constitutional sense because the Gant rule applied retroactively.

Given that the the search in Davis violated the Fourth Amendment when the law on the books at the time clearly and unambiguously allowed the search, it seems weird to me to say that the search in Heien did not violate the Fourth Amendment because an officer could reasonably believe that the law allowed his search. Granted, the “reasonable mistake” in Heien was about the substantive law rather than the operative Fourth Amendment rule. But it’s not clear to me why that should make a difference. Cf. Illinois v. Krull, fn 12.

Third, the “reasonable mistake of law” argument seems like an oddly indirect attack on the correct interpretation of the substantive law. If the courts hand down a surprising ruling on the scope of the law, that’s really a problem with that court’s ruling that should be litigated directly, rather than indirectly through a “mistake of law” defense. In this case, if the North Carolina Court of Appeals was wrong to read the traffic law as requiring only one working brake light — which I don’t think they were, but let’s assume for the sake of argument — then North Carolina prosecutors should have sought review of that ruling to settle the issue once and for all in the North Carolina Supreme Court. The optimal approach is to settle the scope of the traffic law directly, not to go into some sort of backup “mistake of law” mode.

Fourth, it seems only fair to apply the same rule to the police that applies to regular citizens. Mistake of law is a classic subject taught in first-year Criminal Law. Students read cases like People v. Marrero, 69 N.Y.2d 382, 507 N.E.2d 1068 (1987), in which a federal prison guard was convicted of possessing a weapon in violation of a state law that had an express exception for “corrections officers . . . of any penal institution.” After Marrero was charged, a divided lower court ruled that “any penal institution” only meant a state penal institution, which to his shock excluded Marrero. New York’s high court then ruled that Marrero could not assert a mistake of law defense in light of this ruling. Ignorance of the law was no excuse, even if “the law” was handed down in a surprising way only after the defendant’s arrest. This was a harsh result for citizen Marrero, perhaps, but it was needed to give individuals an incentive to learn the law.

That’s the usual rule in criminal law, and I’m not sure why the same thinking shouldn’t apply in criminal procedure. Granted, there may be a different rule at the remedies stage. Perhaps the exclusionary rule shouldn’t apply in such cases. But if the issue is only the right, not the remedy, why shouldn’t the same principle apply?

IV. The Originalist Angle (a.k.a. Going for Scalia’s Vote)

A final thought. There’s a lot of originalist and historical discussion in the briefs, especially with the United States brief. I gather this partly reflects Justice Scalia’s status as a key Fourth Amendment swing vote. Scalia nearly always votes for the government in remedies cases but increasingly he has voted for the defense in rights cases. His vote is going to be key in Heien, and I gather the originalist analysis in the briefs has an audience of one (or maybe two, with Justice Thomas). These arguments really deserve their own post, but in the interest of time I’ll just flag Richard Re’s interesting post introducing the issue for those interested. I might blog more on the originalist arguments if they surface at oral argument.