Cops Can Enforce Non-Existent Laws With Impunity

Wendy McElroy
Activist Post

Ignorance of the law is an excuse … if you are a cop. American police no longer need to know what the law says or to enforce it correctly. They can implement a non-existent law with impunity even if it results in the apparent violation of constitutional rights.

This may have been apparent to many as a police practice but now it is officially the law of the land. On December 15, the Supreme Court of the United States (SCOTUS) ruled on Heien v. North Carolina.

Facts of the Case

In 2009, Sergeant Matt Darisse made a clear “mistake of law” in conducting a traffic stop. He pulled over a car driven by Maynor Javier Vazquez and owned by Nicholas Heien who was sleeping in the back.  The legal pretext: the car had a broken brake light. But North Carolina law at the time only required there to be “a [singular] stop lamp” working. In short, a single brake light made the vehicle “street legal” and the officer had no lawful reason to make the stop.

Darisse became suspicious when the two men offered somewhat different stories about their destination. Then Heien reportedly consented to a search his car with the words, “I don’t care.” A sandwich bag of cocaine was discovered and the two occupants were charged with drug trafficking.

At trial, Heien made a motion to suppress the evidence due to Fourth Amendment protection which prohibits unreasonable search and seizure. Heien’s attorney argued that enforcing a non-existent law was unreasonable and so any evidence resulting from the enforcement could not be used in court. Again, at the time, the North Carolina Supreme Court maintained that the state constitution required the suppression of evidence when the Fourth Amendment was violated. Nevertheless, the trial court allowed the evidence.

The Court of Appeals reversed the decision saying that “an officer’s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop”. The Supreme Court of North Carolina determined the purpose of the Fourth Amendment was to ensure that police officers act reasonably. And police officers should be able to make traffic stops based on their reasonable interpretations of law even if that interpretation was in error.

The case was the first one heard in SCOTUS’ current session. Attorney Jeffrey Fisher represented Heien and  argued, “The government should be presumed to know the laws … It would undercut public confidence in law enforcement and the common law rule upon which the criminal law is built to say the government doesn’t have to be presumed to know the law when it acted.” Fisher claimed that, if “ignorance of the law is no excuse” for average citizens, then the maxim should apply equally to police officers. To argue otherwise would take all incentive away from the police to familiarize themselves with the law or to abide by it.

What is Reasonable? 

Much of the case on both sides hinged on the question of what is a reasonable search. But what is “reasonable” was never defined by SCOTUS. The closest outline of a definition of “reasonable” came from Solicitor General Rachel Kovner who argued for the federal government as an amicus. She stated “You simply ask officers to decide whether –­­ you simply ask courts to decide whether an officer could reasonably think that a person has committed a crime.” In other words, if a court finds either a question of law or fact to result from an officer’s reasonable confusion, then no rights violation has occurred. In providing an example of a reasonable confusion, she offered a the standard of a “foothold … in the statute that affirmatively supports” the officer’s legal interpretation. In short, not the clear language of the statute but a foothold of interpretation.

SCOTUS reversed the Court of Appeals decision by a vote of 8 to 1.  The majority found that “the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law’.” Chief Justice Roberts wrote the opinion:

Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason…why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

The evidence was deemed admissible under the Fourth Amendment. No standard was established for how much law must be known by a reasonable officer, with the opinions of judges varying.

Likely Consequences

The ruling has several important consequences, including:

• Probable cause is the standard by which law enforcement can obtain a warrant or make an exception to warrant requirements for conducting a search of person or property when a crime is suspected. As the Simple Justice blog explained, “By exalting ‘reasonableness’, the Court ignores the Warrant Clause, as if it only applies to unreasonable searches and seizure, which of course renders it a nullity since unreasonable searches are unconstitutional anyway.  If a search need only be reasonable, and the absence of a warrant does nothing to impair that conclusion, then there will never be a reason to obtain a warrant again.” 

• Traditionally, courts have held that the “fruits” of an invalidly produced or conducted search may be suppressed. The standards by which evidence can be admitted in criminal procedures seems to have been considerably loosened. 

• With no solid definition of a “reasonable” search and seizure, the courts are likely to leave the interpretation to the officer. The power of the police has massively expanded with the SCOTUS ruling setting a national precedent. 

Justice Sonia Sotomayor was alone in dissenting on the grounds that the decision granted the police far too much discretionary power. She wrote, “One is left to wonder why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretative question … [A]n officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment.” Interestingly, Sotomayor is the only justice with significant experience in criminal trials.

The law has ceased to be an objective thing and has become an interpretation in the mind of a police officer. Simple Justice concluded, “[P]olice have become, at least in their own minds, the arbiters of law at the end of a gun. [T]hey can craft a half-baked, phony, facile excuse for why they got the law wrong. The new test for ‘reasonableness’ under the Fourth Amendment is how good a spin the prosecution and cops can offer for mistakes. As it turns out, this is the one thing that they’re exceptionally good at.”

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Wendy McElroy is a regular contributor to the Dollar Vigilante, and a renowned individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982, and is the author/editor of twelve books, the latest of which is “The Art of Being Free”. Follow her work at www.wendymcelroy.com.