When cops make good faith mistakes

Last week, the U.S. Supreme Court granted review in Heien v. North Carolina, No. 13-604, which concerns whether a traffic stop that was based on a reasonable mistake of law by a police officer violates the Fourth Amendment. The case promises to either confirm or unsettle the long-standing law in California federal and state courts that renders such a stop unconstitutional. It also may shed light upon the Supreme Court's evolving understanding of the exclusionary rule.

Under long-standing precedent, Terry v. Ohio, 392 U.S. 1 (1968), an officer may stop a driver for a traffic violation, so long as the officer has reasonable suspicion to conclude that the driver has violated a traffic law. If the traffic stop later is held invalid because the officer lacked objective reasonable suspicion, then evidence seized during the stop typically must be suppressed under the exclusionary rule.

But what happens if the officer was mistaken about the facts or the law such that, with the proper information considered, the officer lacked reasonable suspicion for a traffic violation at the time of the stop?

In the 9th U.S. Circuit Court of Appeals, the distinction between mistakes of fact and mistakes of law is "crucial to determining whether reasonable suspicion exists to search a vehicle." United States v. Twilley, 222 F.3d 1092, 1096 n.1 (9th Cir. 2000). An officer's reasonable mistake of fact does not render a stop unconstitutional. In contrast, a stop is unconstitutional in this circuit if an officer makes a reasonable mistake of law.

For example, where officers stopped a vehicle because they believed it to be in violation of a Hawaii law that criminalized the possession of a rental car more than 48 hours beyond its return time, the stop was not unconstitutional because the officers merely had made a reasonable mistake of fact by relying on rental car company information erroneously indicating that the full 48 hours had elapsed. United States v. Dorais, 241 F.3d 1124, 1131 (9th Cir. 2001).

On the other hand, when a California officer stopped a car because it had only one Michigan license plate, making a mistake of law by believing that two plates were required by that state, the circuit held that the stop violated the Fourth Amendment even though the officer's belief was objectively reasonable because most states require two plates. Twilley, 222 F.3d at 1096; see United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (evidence suppressed where officer made reasonable mistake of law about registration sticker placement); United States v. King, 244 F.3d 736, 741 (9th Cir. 2001) (evidence suppressed where officer made good-faith mistake about handicap placard placement).

The state Court of Appeal has expressly followed the 9th Circuit case law and held that an officer's mistaken understanding of the law cannot constitute reasonable suspicion for a traffic stop. People v. White, 107 Cal. App. 4th 636, 644 (2003); People v. Williams, 2014 WL 212183 at *4 (Jan. 21, 2014). Indeed, this approach is the majority rule in both the federal circuits and the states.

The 9th Circuit's justification for its distinction between reasonable mistakes of fact and those of law is intertwined with a conception of the Fourth Amendment exclusionary rule as a tool that encourages proper police conduct. That is, the 9th Circuit has stated that stops based on reasonable mistakes of fact do not violate the Constitution, as officers in the field have "leeway" to make factual determinations quickly and exercise discretionary judgment based on them. King, 244 F.3d at 739. In contrast, a police officer's knowledge of the law is not based on snap judgments and arguably can be encouraged if courts exclude evidence when officers make mistakes of law. As Judge William A. Fletcher explained:

"[T]here is no good-faith exception to the exclusionary rule for police who do not act in accordance with governing law. To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey." Lopez-Soto, 205 F.3d at 1106.

The Supreme Court's new case, Heien, arises from a jurisdiction that follows the minority rule and finds no Fourth Amendment violation where officers make a reasonable mistake of law. Officers stopped Nicholas Heinen after observing that his right rear brake right did not illuminate, even though his left one did. After questioning Heinen and his passenger, the officers obtained consent to search the vehicle and found cocaine, which led Heinen's North Carolina conviction for trafficking in the substance.

On appeal, the North Carolina Supreme Court assumed that the officer made a mistake of law in stopping Heien, as North Carolina statutes appeared to require only one working brake light, not two. Nevertheless, that court found the officer's mistake to be reasonable, because the state's appellate courts had never interpreted the law to require only one working brake light. On a 4-3 vote, the court affirmed the conviction, holding that "so long as an officer's mistake is reasonable, it may give rise to reasonable suspicion."

California's federal and state courts therefore differ with North Carolina as to whether an officer can have reasonable suspicion for a traffic stop if the officer has made a reasonable mistake of law in concluding that a traffic offense was committed. Because the ground for suppression based on mistake of law turns on the incentive-based reasoning offered by Fletcher that is quoted above, some justices may see this case as calling for the court's view on whether the exclusionary rule applies, an area that has been in flux for a generation.

Until the mid-1970s, "the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation." Arizona v. Evans, 514 U.S. 1, 13 (1995). In several more recent cases, however, the court has weighed the benefits of excluding evidence and found several categories of cases where a Fourth Amendment violation will not warrant suppression of evidence, which typically comes at the cost of allowing a criminal defendant to go free. In its two most recent cases concerning the exclusionary rule, the court has created such categories, emphasizing that suppression was unwarranted where police officers lacked bad faith in the particular case, rather than focusing on broader notions of encouraging proper police conduct.

First, in Herring v. United States, 555 U.S. 135, 144 (2009), the court stated that "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Applying this principle, the court held that the rule did not require the suppression of evidence found after the defendant was arrested erroneously, because the police error was merely negligent: officers failed to remove from a database a warrant for the defendant that should have been recalled. The Herring dissenters argued that the exclusionary rule instead should apply to "strongly encourage[] police compliance with the Fourth Amendment in the future." Id. at 705 (Ginsburg, J., dissenting).

More recently, in Davis v. United States, 131 S. Ct. 2419 (2012), the court held that the exclusionary rule did not apply to police errors in relying upon binding precedent that is later reversed. Citing Herring, the court stated that there was little basis for the exclusionary rule "when the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful." Id. at 2427. The dissent argued that the court should instead conceive of the exclusionary rule "as an effective way to secure enforcement of the Fourth Amendment's commands." Id. at 2439 (Breyer, J., dissenting).

Herring and Davis raise the possibility that some justices may see suppression as unwarranted in Heien if the officer made a mistake in good faith - regardless of whether the mistake is one of law or of fact. Others may agree with Fletcher's view that the exclusionary rule is necessary to provide an "incentive for police to make certain that they properly understand the law."

California criminal practitioners may wish to watch Heien to see whether it affects our law holding that reasonable mistakes of law cannot constitute reasonable suspicion for a stop. And it is possible as well that Heien could be the next case to elucidate the court's view as to the role of the Fourth Amendment exclusionary rule in creating incentives for the police.