Heien v. N.C. Oral Arguments: No Right Without a Remedy

On Monday, the Supreme Court heard its first oral argument of the October 2014 term. The facts of Heien v. North Carolina are straightforward. Vazquez was driving Heien's car; Heien was sleeping in the back seat. A police officer thought Vazquez looked "stiff and nervous" as he drove by, so the officer followed him. The officer noticed one of the car's brake lights was out, so the officer pulled Vazquez over, issued a citation for the light, and asked for permission to search the car. Boom: drugs.

The issue is that the North Carolina statute in question requires only that a car have a working brake light, not two working brake lights (though the same statute also says all the lights -- plural -- have to be in working order). The state supreme court had never interpreted the law, but a state appellate court was hearing a case on that very issue. Thus, the question presented was "[w]hether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop."

Jeffrey Fisher, for Nicholas Heien

The oral argument transcript indicates the justices were concerned, when questioning Stanford Law professor Jeffrey Fisher (representing Heien as part of Stanford's Supreme Court Litigation Clinic), with whether reasonableness factored into the officer's calculus. Fisher tried to steer the court away from this line of questioning, separating the violation from the remedy and arguing that reasonableness only factors into the remedy, but a mistake of law is per se unreasonable.

That only got the justices mired in another swamp: what the remedy is. Even acknowledging that there was a Fourth Amendment violation, Justice Scalia was concerned with what the Court would do about it. Would it remand? Would it suppress? No one argued the good faith exception, said Justice Scalia, which was necessary if the Court were deciding whether to exclude the evidence, because a good faith violation is subject to a reasonableness analysis.

Again, Fisher resisted: He wanted nothing more than a remand, but Justices Sotomayor, Kennedy, Alito, and Ginsburg wanted an answer to Scalia's question. North Carolina has no state good faith exception, "[s]o it would be futile to send it back for them to answer the good faith exception since they have none," said Ginsburg.

Very late in the argument, Justice Alito finally addressed the issue of reasonableness -- only to have Scalia come back to his remedy concern.

Robert C. Montgomery, for North Carolina

The questions for Montgomery centered on how reasonable the officer's interpretation of state law was. Justice Sotomayor expressed concern about situations where the law is uncertain: "It basically means that any open question, police officers will rule in favor of their right to search."

The justices suggested that the officer's interpretation of this law in this case was fairly reasonable, though Chief Justice Roberts resisted Montgomery's application of the reasonable person standard as too similar to qualified immunity, "which gives the officers quite -- quite broad scope, and that -- that's troubling."

Rachel Kovner, for the United States as Amicus Curiae

Chief Justice Roberts asked Kovner the crucial question of why it's reasonable for an officer to pick one of two options for interpreting the statute. Kovner said that as long as an officer could point to something in the statute, or to an appellate court opinion interpreting the statute, that would make the officer's decision reasonable.

Takeaway?

The Court will probably spend the bulk of its discussion on the reasonableness issue because that factors into the exclusionary rule analysis. Really, the Court can't do otherwise. Fisher's need to get reasonableness out of the justices' heads comes from the fact that the officer's mistake probably was reasonable "when, you know, 99 people out of a hundred think you have to have two brake lights, like you do everywhere else in the country," as Roberts told Montgomery. In terms of test cases for mistakes of law, this one isn't terribly helpful.

Related Resources:

• Goldilocks and the Fourth Amendment: Why the Supreme Court of North Carolina Missed an Opportunity to Get Officer Mistakes of Law "Just Right" in State v. Heien (North Carolina Law Review)
• Argument Analysis: A Simple Answer to a Deceptively Simple Fourth Amendment Question? (SCOTUSblog)
• Grants: Search, Career Criminal, and the Infamous Israel Passport (FindLaw's U.S. Supreme Court Blog)
• 5 Cases at SCOTUS' Big Fall Conference That We're Excited About (FindLaw's U.S. Supreme Court Blog)