Does Officer’s Ignorance of Law Violate the Fourth Amendment?

Question of Fourth Amendement violation

Photo: J

The Fourth Amendment is once again up for review in the first case to be argued in the new U.S. Supreme Court term. In the case of Heien v. North Carolina, Nicholas Heien was arrested and charged with two counts of trafficking cocaine after the vehicle he was traveling in was pulled over. However, in-depth research into the law revealed that no laws were broken previous to Heien being pulled over, and subsequently there was no reason for the officer to pull over the vehicle. Therefore, it would seem that the defendant’s Fourth Amendment rights had been violated. The case bounced around the North Carolina court system and now has found its way to the Supreme Court.

The Original Case

In April 2010, Maynor Javier Vasquez was pulled over on I-77 in North Carolina after Sergeant Darisse of the Surry County Sheriff’s Department observed a broken brake light. When the officer pulled over the vehicle, he noticed Heien in the backseat lying under a blanket. This obviously raised concerns, and after speaking with both men and finding that their stories didn’t seem to match, he requested permission to search the vehicle. Permission was granted to Sgt. Darisse, and the search turned up a bag with 54.2 grams of cocaine.

[In this instance, Darisse had “reasonable suspicion” to search the vehicle but not “probable cause.” Heien could have declined the search. For more information on the topic of “search and seizure” and your rights when being pulled over, click our previous post, Questionable Focus on Highway Interdiction Nets Billions to Law Enforcement]

After being indicted on two counts of trafficking cocaine, Heien filed a motion to suppress the evidence based on his claim that a Fourth Amendment violation had occurred because technically Sgt. Darisse was in the wrong for pulling them over. In what is considered an antiquated law dating back to earlier models of vehicles equipped with only one “stop lamp”, North Carolina–as with many other states–still has on the books a statute stating that essentially only one “stop lamp” is required for a vehicle.

Heien argued that even though one of the brake lights on the vehicle was broken, the other was still functioning. Therefore the traffic stop was not objectively reasonable. The North Carolina Court of Appeals agreed and reversed the trial court judgment. However, the North Carolina Supreme Court reversed this decision, stating that because the law was so antiquated and no one had really examined the statute in decades, the officer’s “mistake of the law” was reasonable. The case was sent back to the Court of Appeals who found no errors this time around with the trial court’s original judgment, but still expressed in the dissenting opinion that this raised questions of “fundamental unfairness” in regards to the fact that citizens traditionally aren’t allowed to use “ignorance of the law” as an excuse, so why should law enforcement be allowed this right?

Heien again went to the North Carolina Supreme Court, but the Court rejected his appeal. Now the case has found its way to the United States Supreme Court.

The Fourth Amendment, Exclusionary Rule and Good-Faith Exception

The Fourth Amendment protects against unreasonable searches and seizures, which is the question at hand in the case of Heien v. North Carolina. In his defense, Heien is citing the exclusionary rule, a legal principle which states that evidence obtained in violation of a defendant’s constitutional rights may be inadmissible in court.

The problem that Heien may encounter is the good-faith exception to the exclusionary rule. This essentially states that if an officer was acting on “good faith” and had reasons to believe his/her actions were legal (such as in Heien’s case), the exclusionary rule doesn’t apply.

The interesting thing about this case is that while there are three ways the case could be resolved under federal law–essentially stating that the stop was lawful and evidence will be admitted, the stop wasn’t lawful and evidence shouldn’t be admitted, or the stop wasn’t lawful but the good-faith exception will apply–the Supreme Court is really only deciding if a violation of the Fourth Amendment occurred. They are not addressing the exclusionary rule or good-faith exception.

In other words, while the Supreme Court may decide that the stop was indeed unlawful, that doesn’t mean the evidence obtained during the search won’t still be used against Heien.

Only time will tell what the Supreme Court will decide, but one thing seems certain: the case of Heien v. North Carolina is most likely far from closed. In addition, if the Supreme Court rules for the state, many concerns could be raised regarding the fact that “ignorance of the law” is an argument which has always been denied to regular citizens but apparently doesn’t apply to law enforcement.

Questionable Focus on Highway Interdiction Nets Billions to Cops

Questionable Highway Interdiction methods

Photo: 401(k) 2012

In a practice originally intended to hit organized crime where it hurts–in the wallet–a recent investigation by the Washington Post showed that highway interdiction, the practice of seizing contraband from motorists, seems to have converted into a slush fund for law enforcement agencies under the combined guise of civil forfeiture, the federal Equitable Sharing Program, and Homeland Security. It would seem that in many cases, this practice of highway interdiction, especially when it comes to the confiscation of cash, amounts to a Fourth Amendment violation and the methods being used to target certain vehicles a basic violation of privacy.

How Highway Interdiction Became an Apparent Cash-Grab

Civil asset forfeiture is nothing new. Advocates state that the nature of organized crime effectively keeps the proceeds from criminal activity safe from legal confiscation. So instead of going after the criminal first, in essence, the law sues “the object,” and the owner is a third-party claimant to the property [as opposed to criminal forfeiture where the person is convicted and the forfeiture is a form of penalty].

In civil forfeitures–which constitute approximately half of all forfeiture cases–the owner of the property at the time of confiscation doesn’t need to be judged guilty of a crime; the government need merely to prove that someone else other than the owner used the property as part of a crime.

In addition, the Equitable Sharing Program has also been around for some time. This is a program by the Justice Department which allows the proceeds from asset forfeiture to be deposited into Justice Department Asset Forfeiture Fund. After the feds take their portion, local police are able to take up to 80 percent of what the property is worth.

Here is where things get tricky. After 9/11, seemingly everything got thrown into one big pot in the interest in Homeland Security.  As security tightened down in the airports, criminals (and yes, terrorists) shied away from air travel and moved to the interstate highway system. Everyone from local officers to state troopers started acting more aggressively in their searches of motorists for suspicious people, drugs, and other contraband which they could confiscate without proof of a crime.

Cash has been the biggest issue at hand when it comes to unchecked highway interdiction. It was reported that since 2001, $2.5 billion has been seized without accusation of a crime or issuance of a warrant. While many of these cases have been disputed, most go unchallenged.

Where Supply Meets Demand Meets Potential Civil Violations

After the urging of the government to crack down more heavily on highway “crime,” many law enforcement officers sought additional training on exactly what they should be looking for. The Justice Department and Homeland Security stepped up, spending millions on police training, but this isn’t where most critics are concerned.

In addition to those departmental trainings, many private firms stepped up to take their part of the pie. One method of supposedly assisting with highway interdiction that is especially under the microscope is a private intelligence network known as Black Asphalt Electronic Networking & Notification System. It’s like social networking for law enforcement… with one exception. Apparently detailed reports are being shared across the nation about American motorists, whether criminals or just “suspect.” Some of this information includes Social Security numbers, identifying features and addresses.

An article from has equated this new form of “law enforcement” more akin to bounty hunting and a serious invasion of privacy. In one incident, a Hispanic man was pulled over, but when the officer was unable to find anything incriminating, he still put out a message over one of these networking systems with all the information about the man and final message which stated, “Happy hunting.” Some of the officers on these networks have almost made it a game to see who can seize the most contraband, posting “trophy shots” on the network. According to the Washington Post report, some police departments even advocate highway interdiction as an effective method for raising revenue.

An online search for “ highway interdiction ” also proves this point. The second listing is for an officer who is promoting his book on the secrets of successful highway interdiction. The site includes quotes along the lines of “After I made my first bust, I never wanted to write a ticket again,” and the book offers chapters and tips on the difference between “probable cause” and “reasonable suspicion” [the cornerstones of carrying out a search without violating the Fourth Amendment] and the “top mistakes made my rookie officers,” one of which is probably informing a motorist of their actual rights in regards to searching their vehicle. Possibly recognizing the questionable nature of the content, the owner of the site had a huge disclaimer stating that his book was for “pro-law enforcement sources only,” stating that identification would be required upon purchase.

The Pattern of Highway Interdiction

It would appear that most highway interdictions follow a similar pattern. Motorists are pulled over for a minor violation and a warning or ticket is issued while the officer is actually looking for suspicious signs which will justify a warrantless search. Some of these signs or “indicators” of criminal activity include:

  • physical clues such as twitches, pulsing carotid arteries, perspiration, and clenched jaws, or if the driver attempts to get out of the vehicle upon being stopped
  • law enforcement or religious stickers or slogans on the vehicle or religious paraphernalia inside the vehicle
  • more than one cell phone or tools visible inside the vehicle
  • excessive air fresheners, tobacco use, cologne or perfume used to mask odor
  • rental car agreements
  • passengers who seem unfamiliar with each other or who have conflicting stories

Given these signs, an officer often has all he/she needs to move forward with attempting a search, and from there, the stories abound of law abiding citizens who had large amounts of cash on hand for perfectly good reasons and lost it as a result of this highway interdiction.

Of the multiple cash seizures made since 2001, only a sixth of them were legally challenged. While advocates might say this is a sign of guilt, given the cost of taking legal action against the government–a process which took more than a year in 40 percent of the cases–some may just chalk it off as an angry loss (even though of the cases challenged, almost half of the people had their money returned).

Know Your Rights

While the Fourth Amendment does protect you against “unreasonable search and seizure,” police officers also have the power to investigate based on suspicions. The key is to know some basic rights you have when you are pulled over to avoid possible unlawful highway interdiction.

  • You may only be detained as long as it takes to deal with the initial reason for your stop. After that, even though an officer may request further conversation, a motorist can decline and leave.
  • You can be briefly detained and questioned if there is “reasonable suspicion” that you were involved in a criminal activity. Less than “probable cause,” reasonable suspicion may include matching the description of a person of interest, dropping or attempting to hide something upon being pulled over, or acting nervous while being questioned. Simply asking if you are free to go does not constitute reasonable suspicion.
  • Reasonable suspicion isn’t enough to perform a search. Officers must ask for permission, and motorists may decline. Officers do not have to inform drivers of their right to refuse.
  • Probable cause can result in a search without motorist permission. Probable cause includes the sight and or smell of contraband. If an officer has probable cause to believe cash in the vehicle is related to criminal activity, they may seize it.

People are naturally uncomfortable around law enforcement officers, often just because they are afraid they will do something wrong, even if they hadn’t done anything wrong up to that point. Just remain calm, answer their questions, and know your rights, and everything should work out fine.

Man Arrested Videoing Police; Files First Amendment Violation Suit

Arrested Man Claims First Amendment Violation

Photo: Ed Uthman

It is being speculated that the activities of law enforcement across the nation haven’t been this much in the public eye since the 1960s and 70s. While much of this is being connected to the recent events in Ferguson, Missouri, it seems that the true cause is the proliferation of phones with the capability of taking video. While not everyone is carrying a video camera with them, most people have their phones, and people are using them.

In a recent case in Austin, Texas, a man claimed a U.S. Constitution First Amendment violation after he was arrested multiple times for videoing the activities of Austin PD law enforcement officers. He also claimed violations to the Fourth and Fourteenth Amendment of the U.S. Constitution as well as violations of the Bill of Rights to the Texas Constitution and state law. The multiple defendants, ranging from specific officers all the way to the city of Austin itself, asked the District Court to dismiss the case.

Putting Himself in the Wrong Place at the Right Time

The case at hand revolves around three arrests of Antonio Francis Buehler. The first took place in January of 2012 when the plaintiff witnessed two of the defendants engaged in a traffic stop. Seeing what he believed to be unreasonable actions by the police officers, Buehler took out his camera and began filming. He addressed the officer’s directly, however, he didn’t move “more than a couple steps away from his truck.” After the initial suspect was detained, the officers moved toward Buehler, forced him to the ground and arrested him for Resisting Arrest, Search, or Transportation.

According to court records, Buehler filed a complaint with the Austin Police Department Internal Affairs, but no action was taken. In addition, Buehler asserts that he was contacted by another of the defendants, Chief of Police Art Acevedo, and was assured than an investigation would take place, but “[d]espite this personal knowledge and personal assurances, the civil rights violations continued.”

The next two arrests occurred under similar circumstances when Buehler was with members of a group he formed as a result, the Peaceful Streets Project. Both times Buehler was arrested and charged with Interference with Public Duties, his camera was taken, and his reports to Internal Affairs were filed without action being taken.

As a result, Buehler filed the suit claiming a First Amendment violation as well as Fourteenth Amendment, as he stated he had a right to film and publish the conduct of law enforcement officers. He went on to claim further violations to the Fourteenth Amendment as well as Fourth Amendment, “specifically false arrest, excessive force, unlawful search and seizure, and malicious prosecution.” In addition, he claimed the City of Austin and Police Chief Acevedo were liable because the failed to have a policy regarding “how Austin police officers should proceed when a private citizen records their conduct” and because they had knowledge of alleged civil rights violations but didn’t take action to remedy or prevent further violations.

So Was it a First Amendment Violation?

Without a doubt, the biggest question regarding this case is whether the actions of the defendants constituted a First Amendment violation or whether to dismiss the case.

To decide whether or not to dismiss this case, per the wishes of the defendants, the District Court had to examine several factors. First, they evaluated whether or not the defendants’ actions fell under “qualified immunity,” which protects state officials from civil damages when acting in official capacities. This is a two-step process. The first is establishing if a constitutional right has been violated, and the second step is determining whether or not the defendants’ alleged conduct was reasonable.

In regards to the claim of a First Amendment violation, the defense claimed that the right to photograph or videotape a police officer is not a constitutional right. However, citing several cases, the District Court decided this did indeed fall under that right. Among aspects of the First Amendment they discussed were included:

  • Right to assemble in a public forum, citing a case that referred to it as “the most precious of the liberties safeguarded by the Bill of Rights.”
  • Right of individuals to speak on matters of public concern, citing precedent by the Fifth Circuit Court of Appeals establishing “speech concerning police misconduct” as a matter of public concern.
  • Right of private individuals to receive and gather information. Again citing multiple cases and referring to the changing face of the media and news reporting, the District Court found that private individuals have the same rights to receive and gather information of public concern as that of the press.

Given these considerations, it seemed obvious that a First Amendment violation had taken place. The District Court went on to say that these rights are not without limit and that a police officer must be free to perform his official duties without undue interference. However, they quoted another case stating, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Finding that a First Amendment violation had occurred and that it was an individuals right to photograph or videotape a police officer, the Court went on to also establish that, contrary to defense arguments, this right was clearly established at the time of Buehler’s arrest and that retaliating against a citizen for photographing or videotaping them constituted a depravation of that right.

Regarding whether the officers’ actions were reasonable, the Court referred to Buehler’s allegations that he informed the officers of his intent to record and attempted to comply with their directions so as to not interfere with the performance of their duties. The Court stated that if they accepted these allegations, the officers’ actions could not be considered reasonable. Therefore, the defendants were not considered entitled to qualified immunity.

The First Amendment violation was really the biggest issue at hand, and the Court found that he had a right to seek relief. In regards to the other aspects of his suit, they found as follows:

  • False arrest claims: Granted on the basis that he was arrested without probable cause to believe he committed an offense (based on the charges of “Resisting Arrest, Search, or Transportation” and “Interference with Public Duties”)
  • Malicious prosecution: Dismissed.
  • Use of excessive force: Dismissed. Even though psychological harm can be part of this claim in addition to physical harm, Buehler did not allege any physical or psychological harm.
  • Unlawful search and seizure: Granted in regards to the cameras taken as a result of arrests.

The claims Buehler made against the City of Austin and the Austin PD were a little more complicated. Because Buehler claimed he had notified the police chief of the civil rights violations and no action actions were taken were reason enough for the District Court to grant his claim that the city had failed to establish a policy or adequately train or supervise the officers if such a policy existed.

While certainly not the first of its kind, this case definitely adds another element to this growing concern both with among law enforcement and citizens as to how they interact with one another. While the case clearly states that Buehler was in the right to do what he had done, caution is still strongly advised in these circumstances. Law enforcement officials must carry themselves in a manner befitting their position, but citizens need to remember and be mindful of the tense situations in which those officers find themselves on a daily basis. It’s your right to film, but you must not interfere.