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Arrest – Probable Cause – Predicated on Mistake of Law

State v. Michael M. Longcore (I), 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), affirmed by equally divided vote, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620
For Longcore: William E. Schmaal, SPD, Madison Appellate.

Issue/Holding: An officer stopped Longcore’s car because his back window had been replaced with a plastic covering. The trial court ruled that this was a permissible temporary stop but the court of appeals holds that the officer wasn’t conducting a temporary, “investigative” stop. Rather, the officer knew the window was covered with plastic, and he believed this to constitute an equipment violation; he thought, that is, that a crime was being committed in his presence. The court  “conclude[s] that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law.”

The court doesn’t order suppression outright: “While this court cannot embrace the circuit court’s rationale, that does not mean the principal issue is settled.” The “principal issue” is the construction of the safety statute – if the state is correct, then the officer had probable cause to seize Longcore. “(H)owever, the State’s brief does not sufficiently develop this issue, and we therefore decline to do so.” The court of appeals “must resolve issues independently and cannot serve as both advocate and judge. … Therefore, this court has no recourse but to remand the matter to the circuit court to determine whether the facts proven at the hearing constitute a violation of § 347.43(1).”

Appeal after remand: State v. Michael M. Longcore (II), 2001 WI App 15 (holding that Longcore in fact violated safety statute, therefore officer had probable cause). Longcore Ithus remains technically viable, given the ultimate resolution of a true safety violation as ground for the stop, but its rationale is unfortunately suspect, at least in part. That is, the court’s conclusion that a mistaken view of the law cannot support a stop because Wisconsin does not acknowledge the good-faith rule has been unsettled by subsequent adoption of that rule. However, that was only part of the rationale, the other part being:

… The issue is, then, whether an officer has probable cause that a law has been broken when his interpretation of the law is incorrect. If the facts would support a violation only under a legal misinterpretation, no violation has occurred, and thus by definition there can be no probable cause that a violation has occurred. We conclude that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law.

There is no reason to doubt that conclusion, with an important caveat: the police may be mistaken as to the fact of a violation, as opposed to mistaken as to the law. See,e.g. State v. Wimberly, FL App No. 5D07-3444, 7/21/08 (“A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment. … If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer’s mistake of fact was reasonable. … The same would not be true with respect to an officer’s mistake of law.”); People v. Cole, Ill App No. 4-05-0672, 1/9/07 (“We agree with the majority of federal courts of appeal that a traffic stop based on a mistake of law is generally unconstitutional, even if the mistake is reasonable and made in good faith. … [T]raffic stops based on an officer’s objectively reasonable mistake of fact rarely violate the fourth amendment. … However, a police officer who mistakenly believes a violation occurred when the acts in question are not prohibited by law is not acting reasonably.”); U.S. v. McDonald , 453 F.3d 958 (7th Cir 2006) (“We agree with the majority of circuits to have considered the issue that a police officer’s mistake of law cannot support probable cause to conduct a stop.”); U.S. v. Tibbetts , 396 F.3d 1132 (10th Cir 2005) (stop may be based on reasonable mistake of fact, but mistake of law is impermissible); U.S. v. Cole , 5th Cir No. 05-50686, 3/30/06 (extending good-faith rule to traffic stop would violate holding of Whren v. U.S., 517 U.S. 806 (1996) that officer’s subjective beliefs irrelevant to question of whether police action objectively justifiable); U.S. v. Gross, 6th Cir No. 07-5971, 12/22/08 (fn 2: collecting federal cases).

But see, U.S. v. Delfin-Colina , 464 F.3d 392 (3rd Cir 2006) (mistake of law doesn’t render traffic stop per se unreasonable, and despite trooper’s misconstruction of applicable law stop upheld; however, the case certainly seems more like mistake-of-fact than law: “an objective review of the facts shows that an officer who correctly interpreted § 4524(c) and was in Trooper Wagner’s position would have possessed reasonable suspicion to believe that Delfin-Colina was in violation of § 4524(c)”); U.S. v. Rodriguez-Lopez , 8th Cir No. 05-3139, 4/24/06 (“the resolution of the case turns upon whether Detective Bandy’s belief that the statute was violated was objectively reasonable not whether it was in fact violated”; thus, even though defendant’s failure to signal may not have violated traffic law, officer’s belief that it was a violation wasn’t unreasonable); U.S. v. Washington , 8th Cir No. 06-1220, 8/1/06 (same; contrary authority recited, fn. 1). This could be a cert-worthy split of authority. Keep in mind, too, that the perception must at least be a reasonably mistaken fact,U.S. v. Chantasouxat, 342 F.3d 1271, 1281 (11th Cir. 2003) (“if an officer makes a traffic stop based on a mistake of fact, the only question is whether his mistake of fact was reasonable”).

 

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