Daily Archives: October 4, 2014

Search Seizure: A New Fourth Amendment for a New Generation? - Promo
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By: The American Law Journal

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Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video

Theres not a Barney Fife defense to the violation of the Fourth Amendment, the legendary advocate Pamela Karlan once told the Supreme Court. The Court disagreed, and held that a police officer had validly arrested a man even though the warrant he relied on had been revoked months before.

Heien v. North Carolina, a case to be argued Monday in front of the Supreme Court, will tell us whether Barneys loophole is even bigger. Coincidentally, speaking of Barney, this case happened in the hometown of actor Andy Griffith: Mt. Airy, North Carolina, population 10,417.*

On April 29, 2009, Surry County Sheriffs Deputy Matt Darisse parked by Highway 77 working criminal interdiction, a term which seems to mean looking for folks who dont look right. During his shift, Maynor Javier Vasquez drove by, with the owner of the car, Nicholas Heien, asleep in the back seat.

Darisse became suspicious of Vasquez. Its a little unclear, why, though: In court, Darisse reasoned that the driver was gripping the steering wheel at a 10-and-two position, looking straight aheaddriving like a regular person, in other words. Darisse followed the car until it came to a stoplight. At that point, he noticed one brake light was out. He stopped the vehicle.

Under the Fourth Amendment, police who want to stop a car need reasonable suspicion that someone in it has committed a crime. Once theyve made a valid stop, they can pull the driver and passengers out for a frisk; bring in drug-sniffing dogs; or ask consent to search the car without explaining that the driver has the right to refuse. If permission is refused, they can detain the driver and passengers for hours while they seek a search warrant; and if the driver has committed any offense, even failing to wear a seat belt, they can make an arrest.

Thats the scenario in Heien. Darisse asked Heien for permission to search the car; Heien agreed, and the officers found a baggie full of cocaine.

After Vazquez and Heien were arrested, however, their lawyers made a startling discovery: North Carolina apparently hasnt fully revised its automobile code since before the days of break lights. Under state law, a cars only required to have a stop lamp on the rear of the vehicle. Yes, a stop lampnot two brake lights, as Deputy Darisse and most of the rest of us would assume.

As interpreted by the Supreme Court, the Fourth Amendment creates an exclusionary rule, under which an unconstitutional stop is a poisonous tree, and anything that is discovered in a search afterwards is tainted fruit. It cant be used in evidence, and, as then-Judge Benjamin Cardozo wrote, [t]he criminal is to go free because the constable has blundered. There are exceptions; there wont be any exclusion when police make certain kinds of factual mistakesa warrant that was improperly granted by a judge, for example, or clerical errors in the warrant itselfif the mistakes are reasonable and made in good faith.

Heien asks about the next step: What if the police officer has a reasonable suspicion that the driver has done something that turns out not to be against the law? The North Carolina Supreme Court refused to suppress the cocaine, reasoning that the Fourth Amendment exclusionary rule wouldnt apply. An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances, the justices held.

But theres a slight contradiction here. Ignorance of the law is no defenseeven if someone makes a reasonable mistake. As recently as 1971, the Supreme Court repeated that [t]he principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. Dozens of lower-court cases since then have reiterated this warning.

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The 'Barney Fife Loophole' to the Fourth Amendment

The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officers reasonable mistake of law provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.

Facts: A surprising interpretation of state law.

Heien was driving a car which undisputedly had only one of its two rear brake lights working. Observing this, a member of a local sheriffs department stopped Heiens car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the officer cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion.

But on what basis could a court suppress? Well, in a decision later described by even the dissenting North Carolina justices as surprising, the state court of appeals ruled that, because the antiquated North Carolina statute requires only a stop lamp and one of Heiens brake lights had in fact been working, the traffic stop was invalid. [A]n officers mistaken belief that a defendant has committed a traffic violation is not, said the appellate court, an objectively reasonable justification for a traffic stop.

Granting discretionary review, the North Carolina Supreme Court disagreed. It noted that, although one part of the state law required only a stop lamp, another required all rear lamps to be in working order. Thus, the state supreme court ruled, even assuming that the appellate courts statutory interpretation was correct, the officers mistake of law was objectively reasonable, and a reasonable mistake of law can provide the reasonable suspicion needed to stop a car under Terry v. Ohio. The Court also emphasized societys interest in keeping its roads safe. (Heien contends that the statute should define what the legislature thinks is safe, not officers who misinterpret it.)

Heiens petition for certiorari noted that various state and federal courts have split on the general question whether reasonable mistakes of law can support Fourth Amendment intrusions (with the North Carolina Supreme Court having adopted the minority view). On Monday, the Justices at least five of whom are former law professors will bat this ephemeral question around, hypotheticals abounding, in the highest classroom in the land.

Ideology and amicus briefs

Along with merits briefs from Heien and North Carolina (which will be represented by Deputy Attorney General Robert Montgomery at oral argument), the federal government will also participate in the argument (represented by Assistant to the Solicitor General Rachel Kovner) as an amicus. Six other amicus briefs have been filed, including one on behalf of nineteen states and the District of Columbia supporting North Carolinas view, and one filed by among others the Gun Owners Foundation in support of Heien. Ideology does not, apparently, forecast the preferred result on the surprisingly unsettled constitutional question: the Gun Owners Foundation brief argues, for example, that the Fourth Amendment . . . cannot be diminished by modern judges who view traffic safety [as] more important than property rights.

The parties arguments

Conceding that the Court has previously ruled that what is generally demanded of the many factual determinations regularly made by law enforcement is not that they always be correct, but that they always be reasonable, Heien argues that mistakes of law should be (and have always been) treated differently. He argues (and both North Carolina and the federal government appear to concede) that the common law has always presumed that officers know the law, so that officers, for example, have long been liable for trespass even if they reasonably rely on an incorrect interpretation of a statute. Ignorance of the law is no excuse, argues Heien.

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Argument preview: How many brake lights need to be working on your car?

Philadelphia, PA (PRWEB) October 03, 2014

Are we witnessing diminishing protection against unreasonable search and seizure? When it comes to police misconduct, is race a factor?

If the First Amendment is our most cherished right under the constitution, says Attorney Christopher Naughton on the television programs preview, then the Fourth Amendment protection against unreasonable search and seizure is right behind it.

Live Monday night October 6, 2014 at 7:00 p.m. on the Philadelphia CNN-News affiliate WFMZ-TV and streaming online at wfmz.com, The American Law Journal presents "Search & Seizure: A New Fourth Amendment for a New Generation? with host Christopher Naughton. His guests are criminal defense attorney Kevin Mincey of Mincey & Fitzpatrick, Northampton County District Attorney John Morganelli and former New Jersey State Police Major and Chief of Staff Michael Schaller of New Jerseys King, Kitrick, Jackson & McWeeney.

Has a new, high tech-oriented generation come to expect less privacy - and therefore less protection- under the Fourth Amendment?

The program examines a panoply of current, critical topics: warrantless stops, cell phone seizure, GPS tracking, stop and frisk, officer cams and possible racially motivated police misconduct. The panel also gives their take on the latest and upcoming U.S. Supreme Court Fourth Amendment cases as well as the Pennsylvania Supreme Courts controversial Commonwealth v. Gary (2014) decision that now allows vehicular search and seizure based on probable cause.

The American Law Journal starts its 25th season of broadcasting on the CNN-News affiliate for Philadelphia, WFMZ-TV 69 to Pennsylvania, New Jersey and Delaware. Airing Monday nights at 7:00 pm from October to Memorial Day the program is also available on http://www.YouTube.com/LawJournalTV. For over the air channels (HD, satellite) see http://bit.ly/ALJchannels.

Next week on The American Law Journal: Work Injury & Labor Market Surveys: Can the Boss Force Your Hand?

About The American Law Journal

The American Law Journal is the weekly talk-feature program hosted by former New Jersey prosecutor and trial attorney Christopher Naughton. It airs Monday nights at 7:00 p.m. on the CNN- News affiliate in Philadelphia, WFMZ-TV to Pennsylvania, New Jersey, Delaware and online.

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Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ...