by Sherry F. Colb
In my Verdict column for this week, part one of a two-part series, I consider a case on which the U.S. Supreme Court recently granted certiorari, Heien v. North Carolina. In Heien, police stopped a vehicle on the basis of reasonable suspicion to believe that one of the vehicle's brake lights was not functioning. Once the police stopped the vehicle, they obtained consent for a search and subsequently found evidence of drug trafficking. On appeal, however, the North Carolina Court of Appeals held that the traffic law in North Carolina actually permits a vehicle to have only one working brake light.
The North Carolina Supreme Court assumed (but did not decide) that the Court of Appeals was correct in its interpretation of North Carolina law regarding brake lights. Nonetheless, the state high court found that the officer's mistake of law -- if it was a mistake at all -- was a reasonable one and that when an interpretation of the law is objectively reasonable in this context, a police may lawfully rely on it to justify a valid stop, for Fourth Amendment purposes.
In my column, I take up the question whether the North Carolina Supreme Court was correct in its ruling regarding reasonable mistakes of law. The column proposes that the good faith doctrine might provide an alternative (or even superior) basis for admitting the drug trafficking evidence that was the fruit of a stop based on a reasonable but erroneous understanding of the traffic law. But I do not, in my column, take seriously the possibility that the drug trafficking evidence found in this case might actually be inadmissible. Here I discuss why I dismiss that possibility.
The argument that the evidence in this case was inadmissible is not a frivolous one. If police perform a seizure of a person (which a traffic stop represents) in the absence of evidence that the person has committed an actual, existing offense, then police arguably lack a factual basis for stopping the vehicle. Without a factual basis, police perform an unreasonable seizure, and the consequence of performing an unreasonable seizure is the suppression of the resulting evidence as the fruit of the poisonous tree.
If the Supreme Court were writing on a clean slate (at least as of 1961), I would expect this to be the result in the Heien case. It is, almost by definition, an "unreasonable" seizure to seize someone for violating a nonexistent law, even if the police officer holds a reasonable (though incorrect) interpretation of the law. The way that courts respond to unreasonable seizures is to suppress resulting evidence. The victim of the Fourth Amendment violation is entitled to as much, a means of restoring the status quo ante the violation of his Fourth Amendment rights.
The Court, however, has long rejected the notion that people who experience Fourth Amendment violations are in any way "entitled" to the suppression of resulting evidence. Starting at least in 1976, the Court has characterized the exclusionary rule -- which provides for the suppression of unconstitutionally obtained evidence -- as (1) not required by the Fourth Amendment itself and therefore discretionary with the Court, (2) exclusively a vehicle for deterring the police from violating the Fourth Amendment, and thus (3) best applied in circumstances that maximize the odds that suppression will yield better police compliance with the dictates of the Fourth Amendment.
This thinking has been part of the Court's approach to exclusion for decades, and the degree to which a majority holds this view -- one that is overtly hostile to the application of the exclusionary rule in any given context -- has only increased over time. This is, for example, what accounts for the relatively recent expansion of the good faith exception.
Given this thinking, I have a hard time imagining that the Court would see fit to suppress evidence that was obtained as a direct result of unimpeachably reasonable behavior by the police. Since it was reasonable for the police officer to believe that it was illegal to drive with one non-functioning brake light, the officer did nothing culpable, reckless, or even negligent by stopping a driver whose brake light appeared not to be functioning. What, then, would there be for the exclusionary rule to deter here, and how could whatever minor deterrent value it might have possibly be worth the cost?
Whether the Court calls the police conduct a technical Fourth Amendment violation that we cannot penalize because it is not culpable, or whether the Court calls it a valid stop under the Fourth Amendment, I am therefore confident that the Court will not find any deterrent value to suppressing the resulting evidence of drug-trafficking. For it to do so would represent a marked departure from the path it has been following for some time, and there is nothing to suggest this sort of departure.