Rejecting the position taken by Wisconsin and the clear majority of jurisdictions that have addressed the issue, the Supreme Court holds that a reasonable mistake of law may give rise to the reasonable suspicion necessary to justify an investigatory seizure under the Fourth Amendment. While a statement of the Court’s holding is simple, its decision doesn’t fully articulate how courts are to determine when a mistake of law is “reasonable,” leading the sole dissenting Justice (Sotomayor) to predict lower courts will have difficulty applying the Court’s decision.
Police stopped Heien’s vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all that state law required. Heien argued the officer’s mistake about the law made the stop objectively unreasonable. (Slip op. at 2-4). In rejecting Heien’s claim, the Court invokes the Fourth Amendment’s “ultimate touchstone” of reasonableness, notes that a seizure based on a mistake of fact may be reasonable, and concludes there is no reason to treat mistakes of law differently:
… [R]easonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. 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, under the text of the Fourth Amendment or our precedents, 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. (Slip op. at 6).
One primary reason for not creating an exception for mistakes of law by police is that the exception would remove incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey. See, e.g., United States v. McDonald, 453 F.3d 958, 962 (7th Cir. 2006). But the Supreme Court rejects that reasoning because under its holding the mistake of law must be a “reasonable” one:
Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce. (Slip op. at 11-12).
The Court doesn’t expand on how to determine when a mistake of law is “objectively reasonable,” though in applying its holding in this case the Court focuses on the text of the brake light statute and the fact there were no cases construing it (slip op. at 12-13), thus suggesting that a reasonable officer should know at least those aspects of the law.
A concurrence by Justice Kagan, joined by Justice Ginsburg, “elaborate[s] briefly” on the standard for determining when a mistake of law is “reasonable”:
First, an officer’s “subjective understanding” is irrelevant: As the Court notes, “[w]e do not examine” it at all. [(Slip op. at 11.)] That means the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that … an officer’s reliance on “an incorrect memo or training program from the police department” makes no difference to the analysis. … Those considerations pertain to the officer’s subjective understanding of the law and thus cannot help to justify a seizure. (Concur. at 1-2).
Instead, the test should look to whether “the law at issue is ‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.” (Concur. at 2 (emphasis added; quoted source omitted)).
A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. …[T]he statute must pose a “really difficult” or “very hard question of statutory interpretation.” …[B]oth North Carolina and the Solicitor General agreed that such cases will be “exceedingly rare.” … (Concur. at 2-3).
Justice Sotomayor dissents, criticizing the majority for “both serious legal and practical errors” (dissent at 7) and expressing concern about the vagueness of the majority’s test:
While I appreciate that the Court has endeavored to set some bounds on the types of mistakes of law that it thinks will qualify as reasonable, and while I think that the set of reasonable mistakes of law ought to be narrowly circumscribed if they are to be countenanced at all, I am not at all convinced that the Court has done so in a clear way. It seems to me that the difference between qualified immunity’s reasonableness standard—which the Court insists without elaboration does not apply here—and the Court’s conception of reasonableness in this context—which remains undefined—will prove murky in application. … I fear the Court’s unwillingness to sketch a fuller view of what makes a mistake of law reasonable only presages the likely difficulty that courts will have applying the Court’s decision in this case.
As noted in our post on the grant of certiorari, most jurisdictions have held that a mistake of law can not provide reasonable suspicion the law has been violated. The Seventh Circuit is one of those jurisdictions, McDonald, 453 F.3d 958. So is Wisconsin. Indeed, just last term, State v. Brown, 2014 WI 69, 355 Wis. 2d 668, 850 N.W.2d 66, reaffirmed Wisconsin’s position—albeit over a dissent of two justices that reads much like the majority in Heien. 355 Wis. 2d 668, ¶¶98-107 (Roggensack, J., dissenting).
Heien obviously controls as to the Fourth Amendment, and Wisconsin courts usually construe the state constitution’s search and seizure provision, art. I, § 11, in conformity with the Fourth Amendment, e.g., State v. Fry, 131 Wis. 2d 153, 171-74, 388 N.W.2d 565 (1986). But Brown cited both the federal and Wisconsin constitutions, 355 Wis. 2d 668, ¶19 and n. 7, without saying whether they were coterminous on this question. For now, then, the response to claims that Heien changes the law must be that the state constitution provides greater protection, for the reasons canvassed by the Brown majority and the cases they cited. See 355 Wis. 2d 668, ¶¶22-25. A point made by Justice Sotomayor’s dissent provides another reason: The leeway afforded to officers under the mistake-of-fact doctrine has been justified because police officers operating in the field have to make quick decisions and are generally in a superior position, relative to courts, to evaluate the facts and their significance as they unfold; however, “[t]he same cannot be said about legal exegesis. After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, ‘the notion that the law is definite and knowable’ sits at the foundation of our legal system. Cheek v. United States, 498 U.S. 192, 199 (1991). And it is courts, not officers, that are in the best position to interpret the laws.” (Dissent at 2-3). (An article cited in Brown, ¶24, might be useful, too: Wayne Logan, Police Mistakes of Law, 61 Emory L.J. 69 (2011) (available here).)
Apart from state constitutional argument, the dissent is right to say the majority does not clearly say how to determine whether a mistake of law is “reasonable,” so that question will now be a big part of the litigation in these cases. We quoted the concurrence at some length above because it arguably provides more guidance, but the concurrence’s test—that “the law at issue is ‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view”—seems far narrower than the majority’s “reasonable officer” test, given the differences between judges and cops in legal training and experience. Moreover, only two Justices expressly espouse this test, so it remains to be seen what test the lower courts fashion in the wake of Heien and, ultimately, what the Court will say when they revisit the matter, as they will surely have to do.
UPDATE (12/17/14): Richard Re has posted his thoughts about Justice Kagan’s “aspirational narrowing” and its likelihood of success.
A final observation: The dissent comments that evidence seized during a stop based on a mistake of law will not often be suppressed, “thanks to the exception to the exclusionary rule for good-faith police errors. See, e.g., Davis v. United States, 564 U.S. ___, ___-___ (2011) (slip op., at 8–9).” (Dissent at 6). As we’ve noted before, the sweeping “good-faith” exception to the exclusionary rule the Court has effectively adopted means evidence is suppressed only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” Herring v. United States, 555 U.S. 135, 144 (2009). If courts are going to base Fourth Amendment decisions on police officers’ good-faith (or “reasonable”) but mistaken beliefs about the legality of their conduct, it doesn’t matter for our clients whether the courts conclude there was an objectively reasonable mistake of law, and thus no Fourth Amendment violation in need of a remedy, or whether they conclude the police violated the Fourth Amendment, but the violation was a good-faith mistake and therefore the remedy of exclusion doesn’t apply. What Heien demonstrates, then, is that short of “deliberate, reckless, or grossly negligent” police conduct, they’ve got us, coming and going.