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Jeffrey W. Jensen is a criminal defense lawyer in Milwaukee, Wisconsin. He is also a criminal appeals lawyer in Wisconsin.
Today on The Jensen Defense
"I thought that was against the law"
United States Supreme Court holds that an officer's reasonable mistake as to the law does not negate reasonable suspicion.
It was not until December 15th that the United States Supreme Court decided what is probably the most significant criminal law decision in 2014. In Heien v. North Carolina, 574 U.S. _______ (2014) the Supreme Court held that an officer's reasonable mistake as to the law does not negate a reasonable suspicion to stop and detain a suspect. Heien was riding in a car with friends. One of the car's rear brake lights was out, and so the officer stopped the vehicle. According to the officer, he then observed "suspicious" behavior by the occupants of the vehicle and so he searched it. Predictably, he discovered cocaine. The problem was that under North Carolina law, a vehicle is required to have only one operable brake light. Thus, the single burnt out brake light was not a violation of the North Carolina law. The United State Supreme Court, though, held that the officer's "mistake" as to the law was reasonable and, therefore, the stop of the vehicle was not unreasonable under the Fourth Amendment.
At first blush, this may not seem to be a watershed holding. After all, for many years a mistake of fact did not negate reasonable suspicion. However, the Heien decision represents a substantial erosion of Fourth Amendment protections.
As an aside, one wonders why a reasonable mistake of law by a police officer does not negate reasonable suspicion but a reasonable mistake of law by a defendant is no defense.
Nevertheless, this inconsistency pales by comparison to the broader implications of the decision. What, perhaps, the justices on the Supreme Court fail to fully appreciate is the fact that the language of their decisions directly informs the testimony of police officers at suppression hearings. For example, for many years it was common to hear an officer testify at a suppression hearing that he searched a suspect or a vehicle for "officer safety." This was as a direct result of appellate holdings that approved of questionable searches on the grounds of "officer safety." Then, several years ago, in Arizona v Gant, SCOTUS held that officer safety did not justify the search of a vehicle where the occupants had been removed. The court held that the officer could search the vehicle only if he had probable cause to believe that the vehicle contained contraband or evidence of the offense for which the driver was being arrested. Almost overnight criminal defense lawyers began to witness the spectacle of police officers testifying at suppression hearings that they possessed the remarkable ability to smell the odor of marijuana from outside of a closed vehicle in winter. Very few judges question the truthfulness of such testimony. Consequently, Gant did not result in any greater Fourth Amendment protection. It succeeded only in changing the talismanic phrase used by police officers to justify a vehicle search.
This is where the problem will lie with Heien, only in spades. Under Heien, a police officer may justify a search upon almost any supposed "mistaken" view of the law. The natural inclination of trial judges is to decline to find that such a "mistake" is unreasonable. So, now, we are likely to witness the spectacle of police officers claiming to have believed that, for example, it was against the law to have an open alcoholic beverage in one's own backyard in order to justify a "detention" of that person. Of course, during such a detention, the officer will no doubt observe further "suspicious behavior" to justify further investigation. At a hearing to suppress the heroin that the officer found in the person's pants pocket, what trial judge will hold that the officer's "mistake of law" was unreasonable?
The only small glimmer of hope is that under Wisconsin law, reasonable suspicion cannot be based on an officer's mistake of law. State v. Longcore, 226 Wis. 2d 1 (1999). The states are permitted to offer greater constitutional protection than the federal government. If history is any teacher, though, the Wisconsin Supreme Court will very shortly overrule Longcore to conform with the SCOTUS mandate in Heien.
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Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 735 W. Wisconsin Avenue, Twelfth Floor, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.224.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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