Ignorance Is No Excuse . . . Unless It Is

The old maxim goes that "ignorance of the law is no excuse."  That's certainly true when it comes to us plebs, but what about the cops?  Or does "almost" count for law enforcement, the way it does for horseshoes, hand grenades, and atomic weapons?  The Supreme Court, in a case that kicks off the 2014 term Monday, is about to tell us.

Nicholas Heien was driving in North Carolina when he got pulled over for having a busted tail light.  A subsequent search uncovered drugs, which lead to Heien being prosecuted for, among other things, the busted taillight.  But the North Carolina courts determined that state law only required one working tail light, regardless of how many lights the car was supposed to have.  One busted one, therefore, was not a crime, so long as the others were working.

So much for Heien's driving charge. But what about the drugs?  Was the stop good, now that we know it was based on an incorrect interpretation of the law?  The state supreme court decided almost was good enough - so long as the cop's mistake of law was "reasonable," the stop doesn't violate the Fourth Amendment.  Because state law on tail lights was uncertain, the cop's stop of Heien in this case was reasonable.

Orin Kerr lays out the issues and why he thinks the defense should prevail. I agree that they should, but that doesn't mean much in modern Fourth Amendment law.  That being said, this case does have two interesting angles that might lead it to buck the trend.

First, a lot of the modern cases stripping the Fourth Amendment deal not with the amendment itself but with the exclusionary rule - the rule that says that evidence discovered during an unconstitutional search can't be used at trial.  The Supreme Court (and the lesser courts) has, for the past few years, expanded the once-limited "good faith" exception to the rule, giving cops more room to make mistakes and not pay a price for it.  Heien can't be viewed through that lens because North Carolina, in its state constitution, explicitly rejected the good faith exception.  So the Supremes will have to deal with the issue head on.

Second, and hanging over the whole thing, is the goose/gander angle I mentioned above.  As Kerr explains:

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.

I wouldn't expect a generic Fourth Amendment case to really catch the public's attention.  We've let it atrophy so much over the past few decades that I wouldn't blame most folks if they thought it had just vanished into thin air.  But I'd expect there to be an uproar if the Supreme's give the cops more leeway when it comes to knowing the law than they do regular citizens.  If the fear of that is what it takes for them to get this one right, so be it.

UPDATE: Scott over at Simple Justice has a more pessimistic take.  Having read about half of the oral argument transcript, he might be right to worry.