In Heien v. North Carolina, 135 S.Ct. 530 (2014), the U.S. Supreme Court has issued forth its new edict asserting the Fourth Amendment is not disturbed if a constitutional deprivation occurs because of a police officer's reasonable mistake of the law. This creates a scheme where divergent interpretations of the same statute may produce unequal outcomes, which may ultimately prove to be untenable under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Hein v. North Carolina stems from a routine traffic stop which escalated into a felony drug arrest after a law enforcement officer discovered cocaine in the defendant's vehicle. The officer’s pretext for the stop was that he believed state law prohibited driving a vehicle with a broken brake light. However, the statute in question only requires one working brake light. During the stop, the drugs were discovered after the defendant granted the officer consent to search his vehicle.
Prior to trial, the defendant filed a Motion in limine to suppress the evidence seized on the grounds that the officer’s erroneous pretext for the stop violated the Fourth Amendment. The Trial Court denied the motion to suppress and the defendant was convicted. The State Court of Appeals reversed, finding that the officer's mistake of law meant that no probable cause existed for the initial stop. On appeal, the North Carolina Supreme Court upheld the Trial Court's decision to deny defendant's motion to suppress the evidence, ruling that the officer’s mistake of law was a “reasonable” one, thus the stop did not violate the Fourth Amendment. On appeal, the U.S. Supreme Court granted certiori to hear the case.
The ACLU's amicus curiae brief on behalf of the defendant, Nicholas Heien, argued the North Carolina Supreme Court's decision should be overturned on the grounds that treating mistakes of fact and law in the same manner under the Fourth Amendment contravenes well established legal principles. Attorneys argued:
As a matter of public policy, the ACLU argues that adopting the rule crafted by the North Carolina Supreme Court has negative consequences on individual liberty. Their brief asserts, "[i]f the Fourth Amendment inquiry hinges on the reasonableness of police officers’ beliefs about the law ... the rule will enable an expansive new category of government intrusions." Put into practice, the rule could justify intrusions "based on all manner of innocent conduct, so long as the state raises, post-hoc, a non-frivolous question of statutory interpretation."
The ACLU further contends "allowing state intrusions that have no basis in law, undermines the legitimacy of law enforcement and threatens officer safety." In support of their position, they put forward the argument that "the rule diminishes incentives to ensure that law enforcement officials receive thorough and up-to-date training in the law. See United States v. Nicholson, 721 F.3d 1236, 1242 (10th Cir. 2013) (“Permitting officers to excuse their mistakes of substantive law as ‘reasonable’ ‘would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.’” (quoting United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000)))." In addition, the ACLU argues "the rule may damage the public perception of law enforcement’s knowledge and authority, discouraging citizens from obeying or cooperating with police and alienating law enforcement officials from those they serve." As a result, officer safety could be negatively impacted "by encouraging citizens to dispute the law with officers who are no longer presumed to understand it."
The U.S. supreme Court disagreed. In an 8-1 majority opinion, the U.S. supreme Court adopted the North Carolina Supreme Court's position as the new standard for "reasonableness" under the Fourth Amendment. The Court held, "Because [Officer] Darisse’s mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment." Chief Justice Roberts, delivering the opinion of the Court, provided the following rationale:
The vehicle for challenging the recent Fourth Amendment precedent established by the Court under Heien v. North Carolina may reside in the Fourteenth Amendment's due process and equal protection clauses, which protect individuals against arbitrary application of the law. The Court's ruling in Heien v. North Carolina creates a scenario whereby an unequal application of the law most likely will arise through individual police officers enforcing different standards, which stabs through the heart of the original guarantee against an unequal application of the law enumerated by the Fourteenth Amendment.
An appeal to the Court's void for vagueness jurisprudence transforms a Fourth Amendment inquiry over the reasonableness of the officer's actions, into a Fourteenth Amendment due process inquiry into the reasonableness of the statute, as applied to the defendant. If the offending statute was applied in an arbitrary or discriminatory manner against the defendant, then they have suffered a deprivation of their due process and equal protection rights through its enforcement, regardless of the reasonableness of the officer's actions. Hence, any evidence gained as a result of the constitutional deprivation becomes fruit of the poisoned tree.
The first step in evaluating whether a law is unconstitutionally vague is to determine if the statute provides adequate notice of what conduct is prohibited. United States v. National Dairy Products Corp., 372 U.S. 29, 33 (1963) (citing United States v. Harriss, 347 U. S. 612, 618 (1954)). A regulation must be sufficiently clear to warn a party regarding what is expected of them before they can be sanctioned for failure to comply with the required regulation. Id. at 33. Legislation is not unconstitutionally vague if the law’s prohibitions are such that an ordinary person exercising common sense is able to understand and comply. CSC v. Letter Carriers, 413 U.S. 548, 579 (1973).
The second step is to determine if the statute is drafted in a manner that fosters arbitrary or discriminatory enforcement. To prevent arbitrary and discriminatory enforcement, laws must provide explicit standards for those who apply them. A law is unconstitutionally vague when it "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt. Winters v. New York, 333 U.S. 507, 515 -16 (1948); Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972).
Here, a law enforcement officer who has been deemed to have made a "reasonable" mistake of law in regards to the enforcement of a traffic ordinance provides the necessary ammunition for challenging the offending statute on the grounds that it fosters arbitrary or discriminatory enforcement. By deeming a police officer's mistake of law as "reasonable," what the Court has inadvertently established is that the law in question is capable of being applied on an "ad hoc and subjective basis," which in turn fosters arbitrary and discriminatory application. This would make it impossible for the reasonable person, exercising ordinary common sense, to comply with the statute in such a manner that would protect them from being targeted.
This opens the door for a creative legal strategy of challenging an arrest on the grounds that the underlying statutory offense providing justification for the stop is unconstitutionally void for vagueness. The legal dichotomy this creates is that either the officer's understanding of the law was unreasonable, causing a Fourth Amendment deprivation, or that the law, as applied to the defendant, is capable of being reasonably misinterpreted and arbitrarily applied, hence, is unconstitutionally vague.
The void for vagueness claim should be supplemented with a selective enforcement challenge arising under the Court's equal protection jurisprudence. This should adequately protect against any finding that the challenged statute is facially valid, since the discriminatory enforcement of an otherwise facially valid law is unconstitutional under the equal protection clause. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993) (applying Yick Wo to a claim of discriminatory enforcement of a residency ordinance).
Generally, to establish selective enforcement a claimant must establish (1) that they were treated differently than other similarly situated individuals, and (2) that this selective treatment was motivated by an unjustifiable standard, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith attempt to injure the person. See, Holder, 987 F.2d at 197; Hill v. City of Scranton, 211 F.3d 118, 125 (3d Cir. 2005).
However, a selective enforcement claim can also be brought by a “class of one,” where the defendant alleges that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 345-46 (1989). In Olech, the Court reaffirmed, "The purpose of the equal protection clause is to secure every person within a State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” 528 U.S. at 564 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923) (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918))).
Here, a police officer's "reasonable" mistake of law certainly qualifies as an "improper execution through duly constituted agents." Therefore, a mistake of law, no matter how "reasonable," subjects a defendant to different treatment than similarly situated individuals, without a rational basis for the difference in treatment.
As for the public policy argument, Justice Sotomayer provides a persuasive individual rights justification by asking "why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question." This argument can be supplemented with the ACLU's contention that the rule undermines respect for authority by inviting the public perception that police officers are unfamiliar with the law that they are seeking to enforce and will be held unaccountable for their mistakes.
Lawrence Christopher Skufca (2015)
The legal standard against which the facts and circumstances are judged does not depend upon what was known to the officer. Instead, it is based on the “infraction itself.” Whren v. United States, 517 U.S. 806, 818 (1996); accord Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (“Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.”). The question is not whether the facts could have caused a law enforcement official to perceive a violation of a law he reasonably believed to exist; it is whether the facts could have given rise to reasonable suspicion of a violation of an actual law. See, e.g., United States v. Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”); Delaware v. Prouse, 440 U.S. 648, 661 (1979) (“When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations—or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered—we cannot conceive of any legitimate basis [for a stop.]” (footnote omitted)).
The ACLU further contends "allowing state intrusions that have no basis in law, undermines the legitimacy of law enforcement and threatens officer safety." In support of their position, they put forward the argument that "the rule diminishes incentives to ensure that law enforcement officials receive thorough and up-to-date training in the law. See United States v. Nicholson, 721 F.3d 1236, 1242 (10th Cir. 2013) (“Permitting officers to excuse their mistakes of substantive law as ‘reasonable’ ‘would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.’” (quoting United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000)))." In addition, the ACLU argues "the rule may damage the public perception of law enforcement’s knowledge and authority, discouraging citizens from obeying or cooperating with police and alienating law enforcement officials from those they serve." As a result, officer safety could be negatively impacted "by encouraging citizens to dispute the law with officers who are no longer presumed to understand it."
The U.S. supreme Court disagreed. In an 8-1 majority opinion, the U.S. supreme Court adopted the North Carolina Supreme Court's position as the new standard for "reasonableness" under the Fourth Amendment. The Court held, "Because [Officer] Darisse’s mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment." Chief Justice Roberts, delivering the opinion of the Court, provided the following rationale:
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.The lone dissenter, Justice Sotomayor reasoned:
The Court is, of course, correct that “‘the ultimate touchstone of the Fourth Amendment is “reasonableness.”’” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5). But this broad statement simply sets the standard a court is to apply when it conducts its inquiry into whether the Fourth Amendment has been violated. It does not define the categories of inputs that courts are to consider when assessing the reasonableness of a search or seizure, each of which must be independently justified. What this case requires us to decide is whether a police officer’s understanding of the law is an input into the reasonableness inquiry, or whether this inquiry instead takes the law as a given and assesses an officer’s understanding of the facts against a fixed legal yardstick. I would hold that determining whether a search or seizure is reasonable requires evaluating an officer’s understanding of the facts against the actual state of the law.
The vehicle for challenging the recent Fourth Amendment precedent established by the Court under Heien v. North Carolina may reside in the Fourteenth Amendment's due process and equal protection clauses, which protect individuals against arbitrary application of the law. The Court's ruling in Heien v. North Carolina creates a scenario whereby an unequal application of the law most likely will arise through individual police officers enforcing different standards, which stabs through the heart of the original guarantee against an unequal application of the law enumerated by the Fourteenth Amendment.
An appeal to the Court's void for vagueness jurisprudence transforms a Fourth Amendment inquiry over the reasonableness of the officer's actions, into a Fourteenth Amendment due process inquiry into the reasonableness of the statute, as applied to the defendant. If the offending statute was applied in an arbitrary or discriminatory manner against the defendant, then they have suffered a deprivation of their due process and equal protection rights through its enforcement, regardless of the reasonableness of the officer's actions. Hence, any evidence gained as a result of the constitutional deprivation becomes fruit of the poisoned tree.
The first step in evaluating whether a law is unconstitutionally vague is to determine if the statute provides adequate notice of what conduct is prohibited. United States v. National Dairy Products Corp., 372 U.S. 29, 33 (1963) (citing United States v. Harriss, 347 U. S. 612, 618 (1954)). A regulation must be sufficiently clear to warn a party regarding what is expected of them before they can be sanctioned for failure to comply with the required regulation. Id. at 33. Legislation is not unconstitutionally vague if the law’s prohibitions are such that an ordinary person exercising common sense is able to understand and comply. CSC v. Letter Carriers, 413 U.S. 548, 579 (1973).
The second step is to determine if the statute is drafted in a manner that fosters arbitrary or discriminatory enforcement. To prevent arbitrary and discriminatory enforcement, laws must provide explicit standards for those who apply them. A law is unconstitutionally vague when it "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt. Winters v. New York, 333 U.S. 507, 515 -16 (1948); Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972).
Here, a law enforcement officer who has been deemed to have made a "reasonable" mistake of law in regards to the enforcement of a traffic ordinance provides the necessary ammunition for challenging the offending statute on the grounds that it fosters arbitrary or discriminatory enforcement. By deeming a police officer's mistake of law as "reasonable," what the Court has inadvertently established is that the law in question is capable of being applied on an "ad hoc and subjective basis," which in turn fosters arbitrary and discriminatory application. This would make it impossible for the reasonable person, exercising ordinary common sense, to comply with the statute in such a manner that would protect them from being targeted.
This opens the door for a creative legal strategy of challenging an arrest on the grounds that the underlying statutory offense providing justification for the stop is unconstitutionally void for vagueness. The legal dichotomy this creates is that either the officer's understanding of the law was unreasonable, causing a Fourth Amendment deprivation, or that the law, as applied to the defendant, is capable of being reasonably misinterpreted and arbitrarily applied, hence, is unconstitutionally vague.
The void for vagueness claim should be supplemented with a selective enforcement challenge arising under the Court's equal protection jurisprudence. This should adequately protect against any finding that the challenged statute is facially valid, since the discriminatory enforcement of an otherwise facially valid law is unconstitutional under the equal protection clause. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993) (applying Yick Wo to a claim of discriminatory enforcement of a residency ordinance).
Generally, to establish selective enforcement a claimant must establish (1) that they were treated differently than other similarly situated individuals, and (2) that this selective treatment was motivated by an unjustifiable standard, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith attempt to injure the person. See, Holder, 987 F.2d at 197; Hill v. City of Scranton, 211 F.3d 118, 125 (3d Cir. 2005).
However, a selective enforcement claim can also be brought by a “class of one,” where the defendant alleges that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 345-46 (1989). In Olech, the Court reaffirmed, "The purpose of the equal protection clause is to secure every person within a State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” 528 U.S. at 564 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923) (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918))).
Here, a police officer's "reasonable" mistake of law certainly qualifies as an "improper execution through duly constituted agents." Therefore, a mistake of law, no matter how "reasonable," subjects a defendant to different treatment than similarly situated individuals, without a rational basis for the difference in treatment.
As for the public policy argument, Justice Sotomayer provides a persuasive individual rights justification by asking "why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question." This argument can be supplemented with the ACLU's contention that the rule undermines respect for authority by inviting the public perception that police officers are unfamiliar with the law that they are seeking to enforce and will be held unaccountable for their mistakes.
Lawrence Christopher Skufca (2015)
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