The Shrinking Fourth Amendment: Heien v. North Carolina

Posted in: Constitutional Law

Earlier this year, the U.S. Supreme Court decided the case of Hein v. North Carolina. The question presented was whether a police officer could, consistent with the Fourth Amendment right against unreasonable seizures, stop a driver for violating a law that, it turned out, did not actually prohibit the driver’s conduct. The Supreme Court answered this question in the affirmative, holding that if a police officer makes a reasonable mistake of law that leads him to conclude that a driver is doing something illegal, then it is constitutionally reasonable for the officer to stop the driver for engaging in that conduct. In this column, I will explore the potential downside of this holding.

The Law at Issue: Trial and Appeal

In Heien, the North Carolina law at the center of the controversy provided, in relevant part, that “[n]o 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.”

A police officer, observing that Nicholas Brady Heien was driving with only one working brake light, pulled him over, initially for a brief stop and a warning. While the stop was in progress, however, the police officer, Sergeant Matt Darisse, asked for and received consent to search the vehicle and found cocaine in the course of that search, after which he arrested Heien, who was later charged with attempted trafficking.

Heien moved unsuccessfully at trial to suppress the evidence found in the car. The North Carolina Court of Appeals reversed, however, interpreting the state code provision to require only a single brake lamp, which Heien had, and therefore finding no reasonable suspicion for the stop. The state supreme court then reversed the court of appeals, finding that the officer’s mistaken understanding of the law (assuming that it was mistaken, based on the lower court’s interpretation) was reasonable and therefore validated the stop.

The U.S. Supreme Court Affirms

When the case came to the Supreme Court, the Court essentially agreed with the North Carolina Supreme Court. It determined that, given the ambiguity of the statute, the police officer who had stopped Heien for violating the brake light provision of the code was behaving reasonably in concluding that a violation had occurred. And because all that the Fourth Amendment demands are “reasonable” searches and seizures, the officer did not violate the Fourth Amendment in stopping the vehicle, notwithstanding the state court of appeals’ construction of the statute as permitting the driver to have one working brake light.

The Fourth Amendment does not require police officers to be perfect in assessing the law, the Court held, any more than it requires them to be perfect in assessing the facts. “Reasonable suspicion” thus means that a suspicion of legal misconduct based on what a reasonable police officer could believe regarding the facts or the law triggers authority, consistent with the Fourth Amendment, to briefly stop the target of that reasonable belief.

As Chief Justice Roberts observed in his opinion for the Court, it has long been understood that a reasonable mistake of fact would in no way undermine probable cause or reasonable suspicion. Both probable cause and reasonable suspicion require something far short of certainty (or even a preponderance of the evidence). Police can and do lawfully arrest innocent people when the officers incorrectly but reasonably conclude, based on what they have been told or have discovered, that those people violated the law.

Say, for example, that an eyewitness runs over to the police and points at a man and says “that man just robbed me at gunpoint,” subsequently providing his own name and contact information. Police now surely have reasonable suspicion to stop the alleged robber (and most likely have probable cause to arrest him as well). Yet it may be that the eyewitness is mistaken about the identity of his assailant and that therefore, the person who is arrested did not in fact commit the crime. This is a classic case of a factual error that in no way undermines the reasonableness (and thus the constitutionality) of an officer’s decision to stop a suspect.

After noting this completely uncontroversial feature of Fourth Amendment law, reasonable suspicion, and probable cause (and citing very old cases that incorporate reasonable legal errors into the concept of probable cause), Chief Justice Roberts contended that there should really be no difference between a reasonable mistake of fact and a reasonable mistake of law, in terms of whether the Fourth Amendment ultimately regards a police officer’s conduct as “reasonable.” If a police officer can “reasonably” (but mistakenly) believe that it was John Doe who committed the criminal act of robbery, a police officer can also—and equally “reasonably” (though also mistakenly)—believe that John Doe’s accurately observed behavior violates a criminal statute.

To elaborate this argument, consider the following hypothetical case. Police observe a man, James Roe, wearing a ski mask, knocking on the door of a house, waiting twenty seconds, and then—receiving no response from an occupant—opening the door, walking in, remaining inside for five minutes, and then leaving holding a computer. The police now arrest Roe for burglary and grand larceny.

Assume that, as it happens, James Roe was entering his own house and retrieving his own computer. He knocked on the door, because he did not want to alarm his wife, in case she was in the house. He wore a ski mask to cover an embarrassing wound on his face. In this scenario, police plainly had probable cause to arrest Roe, because although they turned out to be mistaken about the facts, their mistakes were reasonable and what they observed gave rise to probable cause.

Now assume, instead, that James Roe was entering someone else’s house and taking someone else’s computer and that he wore a ski mask to avoid being identified for what he was doing. Assume as well, in this scenario, that the state in which Roe lives, according to an ambiguously written statute, permits people to enter a house—so long as the door is unlocked—and take up to $3000 worth of property. The statute may have been intended to motivate potential victims to take a more active role in protecting their property. In this case, police understand the facts correctly but are (reasonably) mistaken about the law that governs those facts, because of an ambiguity in the statutory language.

In this scenario, as in the first, the police believe that James Roe committed a robbery. In addition, in this scenario, as in the first, the police have a good reason to believe what they believe and have drawn only those conclusions that a reasonable officer would draw. What distinguishes the two scenarios is that in one, the officers correctly understand the law, so their mistake concerns the factual nature of what they have observed (a man entering his own home versus a man entering someone else’s home), and in the other, the officers correctly apprehend the facts unfolding in front of them, and their mistake concerns the legal status of those facts. Why would anyone want to distinguish the two scenarios and hold that in the first, the Fourth Amendment holds that police may lawfully arrest the suspect, while in the second, the Fourth Amendment condemns what the police did as a constitutional violation and requires that any resulting evidence be suppressed?

The Good Faith Alternative

As I discussed in detail in a two-part earlier column about Heien, the notion of distinguishing between reasonable factual mistakes and reasonable legal mistakes, as a matter of Fourth Amendment law, is hardly novel. From the perspective of Nicholas Brady Heien, of course, winning would have meant a ruling that the “reasonableness” of the police legal error would have no consequences and that the evidence would be suppressed, just as it would have been if the legal error were unreasonable. But I suggested in my earlier column that one could acknowledge the reasonableness of the legal error and admit the evidence while simultaneously classifying what occurred as a Fourth Amendment violation, by relying on the good faith doctrine.

In a variety of cases from the Supreme Court, including United States v. Leon, Illinois v. Krull, Arizona v. Evans, Herring v. United States, and Davis v. United States, the Court has held that there are Fourth Amendment violations in which a reasonable legal rather than factual mistake has been made, and the way to deal with those is to admit the evidence but also to make clear that police (or others) have violated the Fourth Amendment.

In one sense, I am critical of the good faith move and have suggested in other writing that the outcome—admitting evidence that is the fruit of a Fourth Amendment violation—will be harmful to achieving constitutional compliance, even if the announced reason is “good faith.” Yet, notwithstanding what I have said, there is something symbolically important about announcing that there has been a constitutional violation, even if no concrete consequences will flow from that announcement—a status quo (no consequences) that the Court seems increasingly inclined to prefer. In the Court’s words in Hudson v. Michigan, “[s]uppression of evidence . . . has always been our last resort, not our first impulse.”

As a critic of the expanding good faith doctrine, I have worried that the Court has steadily chipped away at the primary means of motivating police to comply with the requirements of the Fourth Amendment, suppression, and that worry remains salient for me. However, once the Court has decided that evidence will be admitted, it strikes me as a whole new assault on the Fourth Amendment to further and explicitly contract the scope of the Amendment itself by saying that police may enforce non-existent laws, as occurred in the stopping of Heien, without even nominally violating the right against unreasonable seizures.

At the present time, police officers enjoy almost unbridled discretion to stop just about any driver they wish to stop, due to the breadth of the law that governs the conduct of drivers. I have proposed that this state of affairs is far from optimal, in part because one of the evils against which the Fourth Amendment was meant to protect is the exercise of unbridled discretion . That is, after all, one of the reasons that police must generally have individualized suspicion before stopping someone, whether a pedestrian or a driver, as discussed in Delaware v. Prouse. Yet the Court has not seen fit to consider the possibility of limiting seizure authority under the Fourth Amendment once a driver has apparently violated the law.

Given how capacious the law regulating drivers is, then, it seems to exacerbate the boundless discretion problem when a police officer can stop a driver because the officer suspects that that the driver is doing something that is in fact legally permissible, and the Supreme Court rules that the stop is nonetheless a “reasonable seizure” under the Fourth Amendment.

We tend to assume that people, civilians and officers alike, have familiarized themselves with the law on the books, such that people are responsible for acting in compliance with that law, even if the reality is that most people are unfamiliar with much of the traffic law (unless it is explicitly posted or recently tested on the driver’s written exam). If a civilian violates a law of which he is completely unfamiliar, we say that “ignorance of the law is no defense,” despite the fact that that ignorance may often be what explains and accounts for the violation.

In the case of the police officer in Heien, it seems quite likely that the officer had no occasion to read the North Carolina provision pertaining to brake lights prior to stopping Heien. The officer may have just assumed that driving with a broken brake light was illegal, and that assumption led him to stop the driver. It turned out that he was mistaken and that, according to the state court of appeals that later ruled on the question, driving with a broken brake light was legal. It also turned out that a reasonable person could read the statute (as the officer probably did not) and come to the opposite conclusion.

Consistent with the rule of lenity that we apply to civilians, it perhaps makes sense that we not visit the harsh consequences of an ordinary Fourth Amendment violation on the police officer who could have reasonably misunderstood the statute; admitting the evidence could thus be appropriate, just as we would not convict a civilian of a crime where it was unclear from the statutory language that what he did was illegal. But holding, as the Supreme Court did in Heien, that stopping someone for violating a non-existent law is a “reasonable seizure” is comparable to a court repealing a potentially ambiguous criminal law rather than simply not applying it to the actor who could reasonably have read the law to allow him to do what he did. It is to expand police authority to interfere with people’s liberty based on any ambiguous statute on the books rather than simply to remove the sanction (suppression) for a violation carried out due to a reasonable misunderstanding of the law.

Even as someone accused of violating the ambiguous statute could invoke the rule of lenity, in other words, to avoid conviction and incarceration for a crime, a police officer could simultaneously invoke the rule of Heien to affirmatively authorize the stopping of that person whose conduct could not be successfully prosecuted because of the rule of lenity. People protected from prosecution thus become vulnerable to stops that do not even get characterized as Fourth Amendment violations.

Last Thoughts on Heien

Were the Court writing on a clean slate, it might make sense to equate reasonable mistakes of fact with reasonable mistakes of law. In reality, however, we have plenty of case law embracing the “good faith” approach to reasonable mistakes of law while virtually always reserving the Fourth Amendment imprimatur of “reasonable search or seizure” for reasonable mistakes of fact. The one modern case that the Court cites to prove the contrary is Michigan v. DeFillippo, but that case came down five years before the good faith doctrine was first announced in Leon, so it is not surprising that the “good faith” label was not applied there.

Perhaps more importantly, we have a shockingly expansive traffic law that practically invites police to stop any driver whom they feel like stopping. This too, in addition to the “good faith” precedents, strongly cautions against suddenly classifying stops for perfectly legal conduct (that police mistakenly but perhaps reasonably imagine to be illegal conduct) as conforming to the dictates of the Fourth Amendment. Having nearly lost hope in the continuing vitality of the exclusionary rule as a tool of Fourth Amendment enforcement, it is a whole new level of disappointing to watch the Supreme Court give its constitutional stamp of approval to a stop that was, in the end, for lawful driver behavior that the police mistakenly believed to be illegal.

  • Bill O’Brien

    1st, i think this new ruling sucks.
    2nd is this going to be kind of like qualified immunity (in civil rights cases under section 1983), BUT applied to the exclusionary rule for 4th amendment violations on traffic stops? Or: How unreasonable can a mistake of law be?

  • inblack99

    What is in question is not whether the stop for the brake light was an honest mistake, but rather given that it was a mistake whether evidence in the resulting search should be barred from use in court.

    It is a simple matter to say, yes the officer made a mistake and while it was a reasonable mistake, the search of the car was not legal and the drug evidence should be thrown out. This is common practice for state violations of the law.

    The rest of their arguments and examples completely miss the point, which is once it has been determine that the suspicion was false – all evidence resulting from the the resulting unfounded search should have been voided.

    Only this approach would, as precedent has long held, protect the citizen from illegal violation of their rights – whether accidental or intended. And only this approach would discourage the state from claiming ignorance of the law as an excuse to illegally violate our rights.

    Finally discarding the evidence thus illegally found is in no way penalizing the officer, rather it is righting a wrong resulting from the officers mistake. I’m amazed at the frequency of SOCTUS rulings that fail a simple logic test.

  • Speedzzter

    Subsection (d) of the NC statute at issue states: “Rear Lamps. – Every motor vehicle, and every trailer or semitrailer attached to a motor vehicle and every vehicle which is being drawn at the end of a combination of vehicles, shall have all originally equipped rear lamps or the equivalent in good working order,”

    I’d argue that there was no mistake of law, good faith or otherwise, based on the “all originally equipped rear lamps” clause. Moreover, there hasn’t been a motor vehicle built since the advent of the FMVSS that’s been legally sold with only one “stop light.” A vehicle that’s factory equipped with two (or more) stop lights on the rear, with one broken or otherwise not working would still be in violation of the :all originally equipped rear lamps” clause of the statute. Accordingly, the trial and appellate courts should have ruled that there was probable cause to stop and no error of law.