Close Enough for Government Work? Heien’s Less-Than-Reasonable Mistake of the Rule of Law

In Heien v North Carolina, the Supreme Court held 8–1 that a search or seizure can be lawful under the Fourth Amendment despite its being founded on a government agent’s mistake of law, as long as the mistake was “reasonable.” The Court did not hold merely that a police officer’s reasonable mistake of criminal law excused the state from the remedy Heien sought—the exclusion of evidence from his criminal trial—but that there was no Fourth Amendment violation, that is, that “the people” have no federal right to be secure against such searches or seizures. The gist of the opinion was the simple virtue of symmetry: Just as probable cause and reasonable suspicion do not require the police to be correct about the facts, but merely to have the right level of justified factual suspicion, these objective standards do not require the police to be correct about the law, but only to have a reasonable belief about what the law forbids. In either case, the suspect’s ex post innocence does not disprove the ex ante probable cause or reasonable suspicion of guilt (as the particular doctrine requires) that renders the search constitutional. Plausible sounding as it may be, Heien is a riches of embarrassment. The symmetry reasoning is superficial, as it ignores or fails to grasp the power of obvious counterarguments, including: (1) A search or seizure based on a mistake of law is the joint result of executive and legislative action; viewing a government as a whole, mistakes of law are never reasonable because a reasonable legislature writes criminal statutes clearly enough to allow reasonable police officers to know what the law is. (2) Indeed, a state legislature can hardly be said to provide citizens with constitutionally sufficient “fair notice” of criminal prohibitions if the meaning of a criminal statute is so ambiguous that we cannot even expect law enforcement officers to get the law right. (3) Just as reasonable “ignorance of the criminal law is no excuse” for citizens, it should not excuse or empower government officials, especially not for mistakes about the law they are tasked with enforcing. (4) The issue in Heien arises almost entirely in the context of traffic enforcement, which is the very last place in criminal law where the Court should grant the police an extra dose of discretion. We might summarize these four points with the simple proposition that government, being the creator of law, is always limited in power by the law it actually creates, a principle which distinguishes government mistakes of law from governmental mistakes of fact. On reflection, Heien is a misstep for the rule of law.