Here’s my take on another inauspicious decision by the United States Supreme Court. It’s Heien v. North Carolina, 574 U.S. __, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). If you’ve been under a rock recently and missed the action, the upshot of the case is police officers can now rely upon a reasonable mistake of law to justify a traffic stop. In April 2009, a Surry County-North Carolina sheriff’s deputy stopped a vehicle because one of its two brake lights was not functioning. The deputy believed this was a traffic offense. Mr. Heien was subsequently arrested for possessing cocaine. On appeal the North Carolina Court of Appeals interpreted the traffic statute and decided a single working brake light was all the law required. Consequently, the deputy was mistaken about his interpretation of the brake light statute. Mr. Heien had not committed a traffic offense. The United States Supreme Court held the deputy’s mistake of law was “reasonable” and, as a result, determined there was reasonable suspicion justifying the stop under the United States Fourth Amendment. The Court noted that “an officer may ‘suddenly confront’ a situation in the field as to which the application of a statute is unclear – however clear it may later become . . . 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 . . . Thus an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty bound to enforce.” Heien, No. 13-604, slip op. at 11-12 (U.S. December 15, 2014)(my emphasis).
Before Heien, federal and state courts had never considered an officer’s misunderstanding of traffic law as justification for a Fourth Amendment intrusion. For example, in United States v. Miller, 146 F.3d 274 (5th Cir. 1998) the Fifth Circuit held a traffic stop must be based upon a “clearly establish[ed]” violation of the law and that police must have probable cause to believe a traffic violation had occurred. Miller, 146 F.3d at 279. In United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) the Tenth Circuit held a traffic stop must be “objectively justified” under the Fourth Amendment. In other words, the stop must be “based on an observed traffic violation.” 721 F.3d at 1241. “[Failure] to understand the law by the very person charged with enforcing it is not objectively reasonable.” Id. If the alleged traffic violation forming the basis of the stop was not a violation of state law, there was no objective basis for justifying the stop. United States v. Raney, 633 F.3d 385, 390 (5th Cir. 2011). In State v. Haas, 2012-Ohio-2362, 971 N.E.2d 436 (Ohio Ct. App. 2012) the Ohio court held that when a person’s conduct does not facially violate the traffic statute providing the sole basis for the officer’s alleged reasonable articulate suspicion, the stop is unconstitutional. Haas, 971 N.E.2d 436. The court in Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.-Houston [14th Dist.] 2006) held an officer’s suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws. See also United States v. Lopez-Valdez, 178 F.3d 282, 288-89 (5th Cir. 1999)(if an officer stopped a vehicle for conduct that did not, in fact, constitute a traffic violation, there was no “good faith exception” to the exclusionary rule to justify the initial stop); Fowler v. State, 266 S.W.3d 498, 504-05 (Tex. App.-Forth Worth 2008, pet. ref’d)(a traffic stop cannot be based on a mistaken understanding of traffic laws); and State v. Police, 377 S.W.3d 33, 36 (Tex. App.-Waco 2012)(an officer’s mistaken, though honest, misunderstanding of traffic law will not justify a stop). Ominously, in a footnote, the Court of Criminal Appeals left undecided the question of whether a police officer’s reasonable mistaken interpretation of law could serve as an objective reasonable basis upon which to effectuate a traffic stop. See Mahaffey v. State, 364 S.W.3d 908, 915, at fn. 8 (Tex. Crim. App. 2012).
Another issue compounding the confusion is whether probable cause or reasonable suspicion is the correct standard by which to justify a stop based solely upon a traffic law violation. The Fifth Circuit has held the police may stop a vehicle only if they had probable cause to believe a traffic violation had occurred. United States v. Cole, 444 F.3d 688, 697 (5th Cir. 2006)(citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L. Ed. 2d 89 (1996)). The Texas Court of Criminal Appeals has held the decision to stop an automobile is reasonable when an officer has probable cause to believe a traffic violation occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000)(U.S. Supreme Court recognized the decision to stop is reasonable when police have probable cause a traffic violation occurred); See also Haas v. State, 172 S.W.3d 42, 50 (Tex. App. – Waco 2005, pet. ref’d)(decision to stop an automobile is reasonable when officer has probable cause). In Heien, the Supreme Court did not apply probable cause as the threshold justifying the traffic stop. Rather, they used reasonable suspicion.
What should we do when prosecutors begin to avail themselves of Heien? First, be prepared to distinguish the facts. Is your case factually different in a way that applying it is an abuse of discretion? Heien involved a complicated traffic statute. Is your statute straight forward and unambiguous? Has a Texas court interpreted it? In Heien, the traffic law in question “pose[d] a quite difficult question of interpretation.” Heien, 135 S.Ct. 530 (Kagan, J., concurring). “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction.” Id. “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.” Id. (my emphasis) Research the case law for an interpretation of your applicable statute. According to Justice Kagan, the trial court judge would simply apply rules of statutory construction to determine whether the police made a reasonable mistake. In her words, the statute must be “genuinely ambiguous” before the stop can be justified as a reasonable mistake of law. So, the simpler you construct the statute the more likely the officer’s mistake was unreasonable.
Heien is not yet Texas law. The case simply creates a constitutional protection beneath which the states cannot slip. Consequently, our Texas Constitution Article 1, Section 9 may hold greater protection for the citizen accused. See Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)(Texas Constitution can provide more protection than U.S. Constitution). Include a Texas constitutional objection and obtain an adverse ruling. Also, object under Article 1.06 of the Texas Code of Criminal Procedure prohibiting unreasonable searches and seizures, as well as the Texas exclusionary rule under Article 38.23 of the Code.
Lastly, prepare for factual battle in the suppression hearing. Since we don’t know how the Court of Criminal Appeals will treat our Texas constitutional and criminal code objections, we’d like to provide them ample ammunition to help our clients. The Heien court stated clearly the officer’s “subjective understanding” of the law was irrelevant. Heien, No. 13-604, slip op. at 11. However, how much the officer studied the law is an objective fact. How much (or how often) he studied should be admissible to prove they were a poor study. Also, whether the officer was trained on the law is an objective fact. Remember the State bears the burden of proof that a Fourth Amendment intrusion was justified. Once the accused satisfies the initial threshold requirement of producing evidence rebutting the presumption of proper police conduct, the burden of proof shifts to the State to establish the search or seizure was reasonable. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Heien requires the police officer’s mistake of law be “objectively reasonable.” So pressure the prosecutor to prove it!
Heien v. North Carolina is a problem for the criminal defense bar . . . but it’s not insurmountable. Develop a mastery of the court’s reasoning. Train trial court judges how to apply the case in your specific situation. Compel prosecutors to prove the cop’s mistake was reasonable. Show how simple the statute really is. Good luck!
(“Off the Back” featured in the “Voice For The Defense” January 2015)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.