Professor Orin Kerr discusses the Supreme Court of North Carolina’s recent ruling that an investigative traffic stop, prefaced on an officer’s reasonable but mistaken understanding of the law, may still be valid:
“Under Whren v. United States, 517 U.S. 806 (1996), the police can pull over a car based on probable cause to believe a traffic violation has occurred. Any civil traffic violation counts: If you’re driving at 36mph in a 35 mph zone, you can be lawfully pulled over. But what if the officer pulls over a car based on his belief that a violation has occurred, and it turns out that the officer has the law wrong? That is, what if you’re not violating the law, and the officer mistakenly thinks you are? And here’s where it gets interesting: What if the officer’s mistake about the law is a reasonable one?
Lower courts are deeply divided on the question, and the Supreme Court of North Carolina just entered the fray with State v. Heien, ruling by a vote of 4-3 that the Fourth Amendment permits an officer to execute a seizure based on a reasonable mistake of law. The facts of Heien are the best possible facts for the government in a case like this. An officer spotted a car with a broken rear right brake light. The officer pulled over the car, and the traffic stop eventually led to the discovery of drugs in the car. The defendant was convicted, and on appeal persuaded the North Carolina Court of Appeals to adopt a rather surprising interpretation of the traffic laws. According to a long statutory analysis from the North Carolina Court of Appeals, interpreting several archaic sections of the traffic code, it was actually legal to have one broken brake light as long as the other brake light functioned properly. The state government saw the opportunity: It accepted this interpretation of the statutes, and it petitioned the North Carolina Supreme Court only on the Fourth Amendment question of whether the stop was constitutionally reasonable even though it turned out that the officer’s belief that a broken tail light was unlawful was not correct. That is, did pulling over the car with a broken tail light violate the Fourth Amendment?
A divided North Carolina Supreme Court ruled that the stop was constitutionally reasonable. The officer had a reasonable belief as to what the traffic laws meant, the majority reasoned, and he acted reasonably. Because the Fourth Amendment requires reasonableness, this is all the Fourth Amendment requires and the resulting stop was constitutional. The dissent agrees that the officer acted reasonably in a generic sense, but it argues that we would not want to systemically allow stops of people who are not breaking the law at all based on erroneous officer understandings of what the law is. The dissent also points out that this is like an exclusionary rule case in disguise: The majority’s reasoning is akin to saying that there is a good faith exception at the remedies stage, the kind of thinking that should not infuse the court’s reasoning at the initial stage of whether a constitutional violation occurred.” Excerpted from Orin Kerr, Can a Police Officer Lawfully Pull Over a Car For A Traffic Violation Based on an Erroneous Understanding of the Traffic Laws?, The Volokh Conspiracy, 21 Dec. 2012.
The United States Court of Appeals for the Fourth Circuit does not appear to have ruled directly on the question. However, the ruling predicts the question will surface. For North Carolina law enforcement to get around the state constitution’s directive that forfeitures go to education, local law enforcement invite federal authorities to adopt and prosecute their forfeiture cases with an understanding that up to 80% of the proceeds will be kicked back to the initial seizing agencies.
The lure of forfeiture proceeds is, of course, a powerful motivator to find violations–fictional and otherwise.