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Brake Lights, the Fourth Amendment, and What Was the Question Again?

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It's not a good sign when most of your argument before the U.S. Supreme Court is taken up with being grilled by the Justices on whether you have asked the right question, without all that much discussion of whether you have the right answer.  That happened today in the argument of Jeff Fisher for the petitioner in Heien v. North Carolina, No. 13-604.  The transcript is here.

Questions and potential questions in this case include:

1.  Is it legal to drive in North Carolina with only one of the two originally installed brake lights working?

2.  If so, does a police officer's stop of a vehicle in the reasonable belief it is not (there being no published decision to the contrary and the statute being ambiguous at most) violate the Fourth Amendment and the parallel provision of the North Carolina Constitution?

3.  If so, is suppression of the resulting evidence (drugs in the car) required?
The U.S. Supreme Court held in 1961 that the exclusionary rule -- excluding from criminal trials evidence obtained in violation of the Fourth Amendment prohibition on unreasonable searches and seizures -- would apply to state trials as well as federal ones.  From the 1970s onward, the Court has been doing damage control on this drastic remedy by carving out "good faith exceptions" of various stripes.

North Carolina hasn't gone along with the latter development.  Well, they can do that with their independent state constitutional provision.  (California used to, but now we have the opposite rule -- exclusion is required only when federal law requires it.  Thank God and Hiram Johnson for the initiative.)  But can a state decide that evidence will be excluded from a criminal trial on the ground that it was obtained in violation of the Fourth Amendment, rather than the state provision, if federal law says exclusion is not required on that ground?

The North Carolina Court of Appeals said that one working brake light is enough, as a case of first impression, and that the evidence must be suppressed.  The North Carolina Supreme Court said that the officer's traffic stop was reasonable, and therefore not a violation of the Fourth Amendment, because his belief that having one light out was a violation of the traffic law was a reasonable one, and there was no published court decision to the contrary.  It did not review whether the Court of Appeals' interpretation of the statute was correct because the state did not ask it to.

Fisher took the case up to the Supreme Court on this substantive Fourth Amendment question with no "good faith exception" issue, because none had been argued or decided in the state court.  Justice Kennedy immediately jumped on that, and Justice Scalia joined in.  We review judgments, not opinions, Justice Scalia said.  If the outcome is correct on the federal question -- the United States Constitution does not require suppression of this evidence -- does the high court have any basis for vacating the state court's decision, even if it got to the right result for the wrong reason?  I think they are right, and the answer is no.

What to do now?  If the Court decides the North Carolina Supreme Court is correct on the basis stated in its opinion, it could simply affirm.  But what if it does not?  What then?  Decide the case on a good faith exception that no one has briefed or argued?  Not a good idea.  (I would have argued it, but on the petition-stage papers I didn't think the question was properly presented.)  Call for more briefing and reset the case for reargument?  That's possible.  The term is still young, just a toddler, actually.  The other alternative is to "dismiss as improvidently granted," known as a DIG to insiders.  The Court's trying to do that less often, as it results in a waste of a limited national resource.  Tough call here.

6 Comments

Kent,

I don't understand the position that you and my old boss are advocating here. Why can't a state choose to provide additional state-law remedies for a federal constitutional violation than is required by federal law?

For example, a state could surely choose to provide compensation for all federal constitutional violations, regardless of whether there'd be qualified immunity under federal law. Likewise, as Danforth already held, a state can give full retroactivity to federal constitutional decisions, even though the decision wouldn't be retroactive in federal court under Teague or AEDPA. In neither situation does the State have to create a corresponding state-law substantive right -- it can simply provide additional state-law remedies for violation of a federal right.

So why can't NC do the same for exclusion of evidence in a criminal trial?

Best,
Hash

If the Court holds that a reasonable mistake of law can't justify a seizure, can the Court remand the case to the North Carolina court to determine whether the Court's good faith exception jurispridence applies, notwithstanding the fact that North Carolina rejects the GFE? Basically forcing the North Carolina court to decide if a federal doctrine -- the GFE -- that is repudiated under that state's law applies?

That is a possible outcome. Although Justice Scalia was arguing quite vigorously that it was not proper, his position may not carry the day.

It could, and if the state supreme court had said that and suppressed the evidence, this issue would not arise. The case would then be in the U.S. Supreme Court on the state's petition, solely on the substantive Fourth Amendment issue.

Justice Scalia's point is that the U.S. Supreme Court should not vacate a state court's judgment unless it finds the result to be erroneous as a matter of federal law. If suppression is required by state law but not federal, even if the state law has a federal predicate, does the U.S. Supreme Court even have jurisdiction to consider that?

The problem, as I understand it, is that the North Carolina state courts have not adopted the good faith exception. They have refused to apply Leon etc in state court proceedings under the state constitution. Thus, (again, as I understand it) there was a valid reason why the good faith exception was not addressed in the proceedings below. If SCOTUS were to agree with the defendant that there was an unreasonable search, then I think the proper outcome is to vacate and remand. The North Carolina state courts would then order that the evidence be excluded as a matter of state constitutional law. I could be wrong.
-Interesting case

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