The facts in the scenario from last time—cop pulls driver over believing cars in North Carolina must have two working brake lights; cop is wrong, as North Carolina law only requires one working brake light (See: BLOG)—are are not the product of my imagination: they are from an actual case that made its way to the Supreme Court of the United States, so that the question of whether a cop’s mistake of law can support a stop.
And what the Supreme Court of the United States said is, quite frankly, as shocking as it is nonsensical.
Well, maybe not “shocking” if you are familiar with prior Supreme Court holdings on mistakes of fact.
Consider, the Supreme Court of the United States has previously held that: the warrantless search of a home is reasonable (i.e. is okay, is legal) if the cop obtains the consent of someone who reasonably appears to be a resident, even if the resident is NOT actually in fact a resident; and that if a cop arrests the wrong person who happens to match the description of the actual person for whom the warrant was issued, the subsequent search of the (wrong) person is okay and is legal.
Now, these mistakes, I have to admit are reasonable. But these are mistakes of fact; not of the law itself. Sure, people look alike sometimes, and cops are bound to occasionally grab the wrong guy. The cop in the above example was mistaken about the identity of the person he arrested. Sure, if I knock on the door to a house, and someone answers the door, I might reasonably assume that the person who answered the door is a resident of the house, versus a guest or visitor. The cop in the second example above was mistaken about the fact of whether the person who he spoke to was a resident of the house or not.
I don’t take issue with reasonable mistakes of fact, other than to say that possibly we should ask police to check things out a little further before arresting or searching. These are, as the Supreme Court put it, “mistakes of reasonable men.”
But…shouldn’t cops know what the LAW is? I mean, they are the very folks charged with enforcing the law. Tough to enforce the law if you don’t exactly know what the law is, right? And here, we are dealing with a mistake of law: cars are required to have one working brake light under North Carolina law, not two. That’s what North Carolina law is. And, it’s worth noting that the cop in the North Carolina case was a Sergeant—not some patrol cop. Shouldn’t a Sergeant of the Surry County Sheriff’s Department in North Carolina know what North Carolina law says about brake lights?!?
Apparent not. The Supreme Court of the United States held that it was reasonable for Sergeant Darisse, of the Surry County Sheriff’s Department in North Carolina, to be mistaken about what the law of North Carolina was.
Just let that sink in for a moment. Cops don’t have to know what the law is. You do. I do. Everyone else does. Cops can be mistaken about what the law is, so long as the cop’s mistake is reasonable. What, then, would be an unreasonable mistake of law that a cop might make if a mistake as to a traffic law is, under the facts here, “reasonable”?
The dissent in the North Carolina case from Justice Sotomayor is instructive here. “The notion that the law is a definite and knowable sits at the foundation of our legal system.” Agreed! In fact, that’s why we print up copies the Texas Penal Code—and indeed why the Texas Penal Code provides that, among its stated purposes is to, “give fair warning of what is prohibited.” Texas Penal Code s.102 “Objectives.” “Giving officers license to effect a seizure so long as they can attach…some reasonable legal interpretation (or misinterpretation) that suggests that a law has been violated significantly expands [constitutional and police] authority. One wonders how a citizen seeking to be law-abiding and to…avoid invasive, frightening, and humiliating encounters [with police] could do so.” Exactly! Say I, Ordinary Citizen, would prefer to live free of the humiliation, fright, and harassment of being stopped by the police for no good reason. If police are permitted to be mistaken about the law without consequence, how could I possibly manage to live free of such intrusion? I couldn’t. I am the mercy of that particular cop’s understanding of the massive tomes that are the Texas Penal Code, Texas Transportation Code, Texas Health and Safety Code, etc. “[The majority argues that not permitting reasonable mistakes of law would hamper law enforcement, but] I have not seen any persuasive argument [that suggests this.]” Generally, you know bad news is coming for the defense and for your civil liberties when you hear phrases like “hamper law enforcement.” Yet, these phrases are bandied about typically without any proof to back them out. Consider: cops would get qualified immunity for most civil suits involving wrongful detentions based on mistake of law; the evidence may or may not be excluded (thanks to the overly generous “good faith exception” for cops—yes, that’s a real thing for “well, you were nice about it about and we think you’re an honest cop, so we’re not going to suppress the evidence, even though you were fantastically wrong.”)
Welcome to The Year 2015
So, just to recap: you are charged with knowing what the law is; cops are not. This makes absolutely no sense whatsoever. Bad Law from the Supreme Court.