• Bryan Perkins

Arrested for Breaking a Non-Existent Law: Not a Problem for the Supreme Court



Lady Liberty was dealt another terrible blow this past week. Like a battered spouse, she was bruised and bloodied at the hands of those who should honor and protect her the most. As they say: “You always hurt the one you love.”


It should go without saying that as Americans, if we go about our daily business without breaking the law, then we should be free from being stopped, detained, or otherwise bothered by the police. Doesn’t the Fourth Amendment prohibition against unreasonable searches and seizures guarantee Americans at least as much? Not according to the United States Supreme Court.


This past week the United States Supreme Court decided the case of Heien v. North Carolina. In Heien, a police officer stopped Nicholas Heien because the vehicle he was driving had only one operable brake light. Following the stop, the police officer searched Heien’s car and found cocaine. The problem was that North Carolina law only requires a motorist to have one operable brake light. So as it turned out, Heien had committed no crime or traffic offense prior to being stopped by the police—he was operating his vehicle in full compliance of the law.


This means that the police officer stopped Heien unlawfully. This means that the search of Heien’s car was unlawful. This means that the cocaine should be suppressed as “fruit of the poisonous tree.” Or so it seems.


Apparently not wanting to let that “technicality” known as the Constitution interfere with efficient police work, the Supreme Court held that there was no need to suppress the cocaine because the conduct of the police officer did not constitute an unreasonable search and seizure under the Fourth Amendment. Yes ladies and gentlemen you heard that right. A law enforcement officer detaining a citizen to enforce a law— that is not really a law—is not unreasonable under the Fourth Amendment. Mistakes happen.


Sounds like the Supreme Court has discovered the allure of Orwellian Newspeak. One does not have to be bothered with logic and consistency. One can in fact simultaneously assert two contradictory beliefs in the same thought. What’s the logical difference between Big Bother’s “freedom is slavery,” and the Supreme Court’s ruling to the effect that “an unlawful stop is legal”?


In her dissent, Justice Sotomayor was the lone voice of freedom crying out from the wilderness. Citing established precedence, Justice Sotomayor discussed the prior reasonableness standard established by the Court for judging Fourth Amendment cases. “What matters, we said, are facts as viewed by an objectively reasonable officer, and the rule of law—not an officer’s conception of the rule of law, and not even an officer’s reasonable misunderstanding about the law, but the law.” [emphasis mine] “Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”


Despite the logic of the dissent, the majority ruled that there was no Fourth Amendment violation in the police officer stopping Heien for breaking a law that was not really a law. Aside from the further erosion of our constitutional rights, this decision is certain to have negative repercussions. Considering the current political climate, it only strengthens the perception that the police are above the law and that they are not held to the same standards as the rest of us.


It further widens the ever growing gap the exists between the police and the policed. As mere citizens, we are repeatedly told that “ignorance of the law is no defense.” If we break a law and don’t know its the law—too bad. For the police “ignorance of the law” is not only an excuse, it’s a benefit. An officer who was conscientious enough to learn the law he was enforcing would not have stopped Heien’s car since no laws were broken. But here, an arrest made by an officer who does not know the law, and detains someone for breaking a law that is not a law, is given the blessing of our Supreme Court. Ignorance is in fact bliss.


Someday soon we will wake-up and find that all of our rights have been eroded away. On that day we shouldn’t be surprised and we certainly cannot say we didn’t see it coming.

Attorney, Bryan Perkins, in Cincinnati, Ohio, has extensive trial and appellate experience in the area of criminal defense law.

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