SCOTUS makes a mistake anybody would have made. So it’s okay, right?

The Fourth Amendment established one of our most important protections against government power: if the police search you or your stuff for evidence, their search must be ‘reasonable’; and if they do get a warrant then it has to be specific, and they’ll need probable cause. In writing, it couldn’t be more straightforward.

In practice, however, its meaning is anything but. Over the years, the courts have dramatically muddied the meaning of the Fourth Amendment. Not as badly as the Fifth, perhaps, but badly enough to severely erode the Fourth’s protections against unreasonable searches and seizures. The courts certainly weren’t trying to undermine the Amendment (well, not most of the time, anyway). It’s been a long series of discrete errors, gradually chipping away at what counts as an “unreasonable” search, and what can be done about it. And so legal types have long complained that the courts have been “eroding” our Fourth Amendment protections.

Sometimes this happens because the legally correct outcome sometimes seems so… wrong. What judge wants to let some vile nasty inhuman threat to society go free, on a mere “technicality?” Very often, this sense of “doing the right thing” in fact leads judges to make errors in law — waving away the protections this one bad guy had, and thereby creating a precedent that erases everyone else’s. It’s the “hard cases make bad law” principle, and it’s very real.

Sometimes this erosion happens because the courts simply don’t understand the law they themselves have created! Even the Supreme Court does this. It happens more often than you might think.

And yesterday, the Supreme court did it again.

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The case is Heien v. North Carolina, and in a nutshell the Supremes said this: If a police officer mistakenly thinks something you’re doing is against the law, and if it’s a mistake any reasonable person would have made, then it’s okay if he stops you to investigate. The Court broadened the definition of “reasonable suspicion” so that now an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’ll still be allowed to stop and frisk you. Based on the justices’ own understanding of the law, it’s okay, they say.

Actually, it’s not okay. The Supremes themselves were mistaken about the law.

Was it a “reasonable” mistake?

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It looks like, at the heart of this mistake, we’ll find the “Exclusionary Rule.” This is law invented by the courts, specifically for the purpose of enforcing the Fourth Amendment. If you’re charged with a crime, and the police have evidence they unlawfully seized from you, your only protection is the Exclusionary Rule: if the police got evidence by violating your rights, then that evidence cannot be used against you at trial. The officers are not themselves penalized in any way; all we do is take away the evidence that they shouldn’t have had in the first place.

This is a very civilized rule, if you think about it. In any situation, there’s a line the police cannot cross. Every situation is different, and the rules aren’t always clear. If the police themselves might be punished for inadvertently crossing that line, then they’re going to avoid going anywhere near it. Society would lose a lot of evidence that the police could have lawfully obtained. Guilty people whom society really wants to punish will get away with it. That’s bad. A rule meant to deter police conduct is not what we want. Instead, however, the Exclusionary Rule lets police go right up to the line, without fear of repercussion if they mistakenly cross it. All the rule does is take away the evidence they get from crossing the line if that happens. It merely excludes what they shouldn’t have had anyway. The rule has zero deterrent effect on police personally, and only serves as an incentive to collect evidence lawfully if they want to ensure its use at trial. It’s really quite elegant: the lawful evidence is maximized, the unlawful evidence is eliminated. What more could society want?

The problem comes when judges are mistaken about the law. When they say the Exclusionary Rule is all about deterrence. Which is precisely what the Rule isn’t about. They get the whole purpose of the Rule wrong, and then they base the rest of their reasoning off of that wrong premise. And they reach a result that’s not only wrong, but inconsistent, confusing, overcomplicated, and unjust. There’s some satisfaction in the guilty being punished, but in so doing they’ve made things worse for everyone else.

So say the police got a bad warrant, but they didn’t know it was bad. Acting in good faith, they seize evidence the Fourth Amendment absolutely forbids them from having. But they didn’t know it was bad. They sincerely and reasonably thought it was good. There’s no way to deter people against being reasonably mistaken. You just can’t. So if you think the Exclusionary Rule is about deterrence, you’ll have to conclude that it’s literally pointless if the police were acting in good faith. And if you’re a court, you carve out an exception to the Fourth Amendment — a “Good Faith” exception –and our protections are eroded just a little bit more.

It happens all the time, and it happened yesterday.

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As one might expect when a court is arguing from a mistaken premise, the Court’s justification was convoluted and strange. In an area where one would expect the law to be fairly current and on point, the Supreme Court had to reach way back to its earliest cases, especially about international-border customs seizures as opposed to Fourth Amendment seizures, to find something to justify itself. You can read the case itself here, and Scotusblog has a typically excellent analysis here.

The legal issue is whether “reasonable suspicion” is still “reasonable” if the police officer is wrong on the law. “Reasonable suspicion” itself is about the police officer’s assessment of the facts on the ground, whether he’s seeing someone casing a bank to rob it, or someone who’s just pacing back and forth in front of it lost in thought. Police officers aren’t mind readers, and so their suspicion can be reasonable even if their conclusion turns out to be wrong. The whole point of “reasonable suspicion” is to allow the police to investigate whether their suspicion is correct.

It’s never been about whether the officer’s understanding of the law was correct. We want to let the officer stop you to investigate whether his assessment of the facts was correct. An officer doesn’t need to stop you to investigate whether his understanding of the law is correct. It doesn’t even make sense to say reasonable suspicion is reasonable if the officer was wrong on the law.

The Court’s ruling essentially broadens the definition of reasonable suspicion so that an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’s still allowed to stop and frisk you.

Though it didn’t say so explicitly, the Court was essentially making the same “good faith” mistake all over again. A police officer is mistaken on the law. Not because he didn’t study it carefully, or because he was sloppy — no, it’s an error that any reasonable person would have made. Anyone would have thought you were breaking the law, despite the fact that what you were doing was technically legal. The officer’s mistaken belief wasn’t his fault. It was objectively reasonable. And there’s no way you can deter people from being reasonably mistaken. You just can’t. And so if the Exclusionary Rule is about deterring police conduct, it’s simply pointless to apply it here. So we have to carve out an exception — a “Reasonably Mistaken” exception — and our protections are eroded just a little bit more.

It would be a mistake to argue that the Court was wrong because its reasoning was convoluted and it relied on irrelevant case law, however. That’s not the problem with the decision. It’s only an outcome, a symptom, of the underlying error. Once again, they presumed that the Exclusionary Rule is something it categorically is not. That’s their error. And our cherished Fourth Amendment probably means just a little bit less now, as a result.

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So they were mistaken on the law. But it’s a mistake lots of judges, even those on the Supreme Court, have made before. It’s an “objectively reasonable” mistake.

But that doesn’t make it okay.