About . . . . Classes . . . . Books . . . . Vita . . . . Blog. . . . Podcast

by Peter Moskos

December 17, 2014

What about "fruit of the poisened tree"?

From NPR:
The U.S. Supreme Court on Monday ruled that police officers don't necessarily violate a person's constitutional rights when they stop a car based on a mistaken understanding of the law.
The court said the officer made a "reasonable mistake." Hence it's not an unreasonable search and seizure.

The case involved drugs found after a traffic light for one broken brake light in a state where one broken brake light isn't a traffic violation.

How can police claim ignorance of the law as a defense?

Strange, I say. Eight of nine supreme court justices disagree with my take.


David Woycechowsky said...

You might know an answer to this, PCM -- I don't:

If a magistrate issues a warrant based on a mistake of law (let's say a search warrant to look for Spice in a state where that is not yet illegal), and the policeman executes the warrant and finds evidence of a crime (let's say an unlicensed handgun), then does the gun get suppressed?

Moskos said...

No. It would not be suppressed.

If a warrant is by a judge, the police are completely off the hook in terms of responsibility.

Even more so, as long as the police are acting in good faith, anything they find is fair game. (and "good faith" isn't the only exception to the exclusionary rule)

Doesn't matter if the spice isn't illegal. Doesn't matter if the address is wrong. Doesn't matter if a cop reads a 8 as a 3 because the printer was low on ink, or he forgot his glasses.

But this case amazes me because the court is saying police can have a "reasonable" ignorance of the law they are enforcing.

David Woycechowsky said...

Well, I am less concerned so long as police are only being excused for making the type of errors that traditional warrant-issuing magistrates are already excused for.

IrishPirate said...

When I hear "poisoned tree" I immediately think Werner Herzog....or not.


Moskos said...

When I hear "Werner Herzog," I think of walking toward "certain deaf."

David Woycechowsky said...

BTW, if a magistrate does make a mistake of law in issuing a warrant, then I suspect that the evidence collected pursuant to that warrant does get suppressed (contrary to what PCM said).

But I don't know which of us is correct about this.

On condition that a warrant-issuing magistrate's mistake of law would get the evidence tossed, then I agree with PCM that Heien is a bad decision.

Corey said...

This is an interesting discussion. I agree with PCM that this creates a horrible precedent.

Regarding David's last comment. It seems reasonable that a defendant could invoke the exclusionary rule if a magistrate issued a warrant based on an improper interpretation of law, though I can't seem to find any caselaw that tests this. Can anyone cite an example of the exclusionary rule applying in such situations?

I spend an entire week on the exclusionary rule in my Intro to CJ class and would like to take this up.

Moskos said...

If the magistrate makes a mistake of law, perhaps. But I that is honestly a bit too technically me, in terms of the judge.

There certainly have been cases of bad warrants being used in drug raids, and evidence collected from people who were never intended to be party to that raid. The devil in the details may be what "bad" means.

I still suspect that as long as there wasn't bad faith or malice, it would be OK. But these cases almost always involve bad evidence being presented to the judge. Or a simple typo. Both of those are OK. I don't know of a case in which a magistrate made a mistake of law in issuing a warrant.

David Woycechowsky said...

Here is a case that suggests a magistrate's mistake in law would not result in suppression:


However there are some wrinkles:

1. this mistake of law was a mistake about 4a law and not about statutory construction of the criminal offense suspected in the warrant. Not sure which way that difference cuts.

2. the case may be overturned for the reasons pointed out by the dissent (that is, the popo should have known better, the popo reliance was not reasonable)

3. this case may be overturned because its reliance on Herring / Davis style suppression law is questionable. More specifically: does Herring-Davis law apply when the bad behavior to be deterred is the future, prospective bad behavior of a magistrate (rather than prospective, future bad behavior of a policeman)? Given how new the Herring-Davis exception to the exclusionary rule is: that is probably an open question.

campbell said...

I think this one went the way it did because the language of the law with regard to the rear lights was such that most people would have interpreted it the way the officer did and I bet there were years of tickets for burned out rear stop lights being upheld in the courts prior to this. Text of law here.


Relevant parts are sections D and G. Apparently the NC court ruled D did not apply to G.

(d) Rear Lamps. - Every motor vehicle, and every trailer or semitrailer attached to a motor vehicle and every vehicle which is being drawn at the end of a combination of vehicles, shall have all originally equipped rear lamps or the equivalent in good working order

(g) No person shall sell or operate on the highways of the State any motor vehicle, motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle.

Moskos said...

I always make sure all my post-1955 motor vehicles are equipped with a stop lamp on the rear.

But seriously, that's all fine. Don't bang the cop for a reasonable misunderstanding. But the Supreme Court sets precedent, and to allow a search after a stop that isn't legal, that's just asking for trouble.

I guarantee you this decision won't be remembered for "stop lamps" but rather for searches are illegal stops.

campbell said...

But I wonder if the courts prior to that decision were upholding citations on a single brake light being burned out on the interpretation that a stop lamp on the rear was also a "rear lamp" and subject to subsection D of that code. If that's the case then what we have is not ignorance of the law but an officer applying the law as interpreted by the local courts at that time.

David Woycechowsky said...

Campbell, I have a question for you. This is basically a question being debated on legal blogs, but it woul be good to have a policeman perspective.

I will do it in terms of a hypothetical:

There is a New Law that has a disputed meaning -- it is disputed whether certain items are legal or illegal under this New Law. This is because the language of the New Law is difficult to understand.

More hypo:

You read up on the New Law and the court cases on the New Law. Through this research, you decide that: (i) you believe Item X is legal; but (ii) you think that reasonable judges could possibly reach the conclusion that Item X is illegal (although you think most judges would say that Item X is illegal). You ask all the local prosecutors about this and they say that they agree with you.

More hypo:

You are on foot patrol at St. Charles and 26th when a white male starts to walk by you and he is holding Item X. You do not want to arrest the individual for Item X, but you realize that if you arrest him then you will be allowed a search incident to arrest, and you would like to search the man because you have a real strong hunch that he has contraband in his pockets.

First question:

Do you arrest?

Second question:

You do decide to arrest, and you do find some serious contraband in the man's pockets. Should the evidence be suppressed?

Moskos said...

I'll take that one.

I would arrest. And the contraband I wanted and found in his pockets incident to arrest would not be suppressed.

My opinion as a police officer on the legality of substance X matters less than what a judge would say. In the legal pecking order, judges always outrank police. Likewise, what the prosecutors believe and choose to prosecute is almost irrelevant from a legal standpoint of my police officer discretion. (Which is different than in a country like Holland where police do follow orders from prosecutors on, for instance, the decriminalization of drugs.)

In the US, prosecutors march to their own drummer and have their own rules about what they would choose to prosecute. Of course prosecutorial discretion is huge (and abused). But police make many legal arrests that they know won't be prosecuted. It's still a legal arrest.

In your hypothetical, of course, the prosecutor could decide not to charge at all because they don't like Officer Pete making an arrest based on substance X. But if they did prosecute, the judge would not suppress the evidence as long as it was a reasonable arrest.

The courts say time and time again that police (and the judicial system) follow legal and procedural justice (as opposed to what is morally correct or even the actual truth).

Somewhat related, I personally don't think pretextual car stops should be constitutional. But they are. So I used every tool I had. (I took particular offense when white junkies -- non-residents -- were cruising my post looking to buy heroin.)

David Woycechowsky said...

Thanks for the answer. Wasn't sure if you understood my hypothetical. In my hypothetical the judges, at least for the most part believe that Item X is street legal -- and you agree.

It is just that you believe that it ould be possible for a judge to go the other way (and disagree with you and the other judges who had opined).

Moskos said...

I was going with "although you think most judges would say that Item X is *illegal*."

(You might have meant *legal* there)

But if there's no clear ruling I think it would be reasonable to make the stop no matter what I think. And the evidence would not be suppressed.

campbell said...

What Peter said. If the code reasonably could be interpreted that X is illegal and you run it by the DA and he also interprets the law that way you're on solid legal and ethical grounds making that arrest.

I personally don't think pretextual car stops should be constitutional.

Huh. To be honest I've never given it that much thought because short of a mind reading machine for the cops I can't imagine a way of enforcing that. I think the Whren ruling said something like "there is no realistic alternative".

Moskos said...

That's exactly the court's reasoning. Hard to imagine an alternative.

But I'm still not happy with procedural justice being the end-all.

Also -- because I have never been able to not find a legal reason to stop a car within a few blocks or minutes -- something bugged me about how the Supreme Court gave me the right to stop any and every car on the road, at my whim.

David Woycechowsky said...

Thanks for the answers, guys!

bacchys said...

The citizen who has a "reasonable misunderstanding" of the law gets prosecuted. Even if the proper understanding of the law is something the prosecutor dreamed up in order to charge him. As Harvey Silverglate noted in "Three Felonies A Day," we not only have to be cognizant of the law as it is now, we also have to know what prosecutors will think it is in the future. Because "ignorance of the law is no excuse."

Unless you work for the government. In that case, provided you are acting for the government at the time, ignorance of the law is very much an excuse.

A case in point would be the arrest of Anthony Graber in Maryland for violating the state's wiretapping law. Graber had videorecorded an encounter with a State Trooper on the side of the highway and posted it on YouTube. The Trooper obtained search and arrest warrants on Graber for unlawful wiretapping. The prosecutor in Harford County, Joseph Casilly pursued charges against him. Not until it came before a trial judge did anyone say that what he did wasn't a violation of the law. A Trooper requested the warrants, a judge signed them, and a prosecutor indicted him *for engaging in lawful, constitutionally protected conduct.* This wasn't a "reasonable" mistake of law, either. The contention of the state (as represented by Casilly) that a public official in a public place performing his public duty has an expectation of privacy while the private citizen in the same encounter does not is as far from reasonable as is humanly possible to get without being a schizophrenic off his meds. Perhaps even further than that.

None of the public officials involved in that travesty of a prosecution were held accountable for their actions. Because ignorance of the law is an excuse for some.