Wayne A. Logan, Police Mistakes of Law

• Publication year: 2011

POLICE MISTAKES OF LAW

Wayne A. Logan*

This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts condone seizures based on what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for unrelated, more serious offenses (usually relating to guns or drugs). The Article surveys the important rule-of-law, separation-of-powers, and legislative-accountability reasons supporting continued judicial adherence to the historic no-excuse position. In so doing, it illuminates the central role that police can play as interpreters—not merely enforcers—of the law, a role to date ignored by courts and commentators.

* Gary and Sallyn Pajcic Professor of Law, Florida State University College of Law. Thanks to Susan

Bandes, Richard Bonnie, Sherry Colb, Tom Davies, Wayne LaFave, Adam Gershowitz, David Logan, Alexandra Natapoff, Jim Rossi, Chris Slobogin, Scott Sundby, Andy Taslitz, Ron Wright, and participants in the Vanderbilt Law Criminal Justice Roundtable for their helpful comments, and to Laura Atcheson (J.D. 2011) for her able research assistance.

INTRODUCTION 70

1. A TYPOLOGY OF POLICE MISTAKES OF LAW 76

   1. Constitutional Law 76

   2. Substantive Law 78

2. FORCES DRIVING JUDICIAL FORGIVENESS OF POLICE MISTAKES OF

   LAW 82

   1. Volume and Complexity of Laws 83

   2. Deterrence and the Exclusionary Rule 85

   3. Qualified Immunity Doctrine 89

3. HOLDING THE LINE: WHY THE INCLINATION MUST BE RESISTED 90

   1. Rule of Law 90

   2. Separation of Powers 95

   3. Legislative Accountability 101

4. RESPONDING TO THE CHALLENGE 103

CONCLUSION 109

INTRODUCTION

Police officers, like members of the public at large, can make mistakes, including relative to the scope and content of laws. Police mistakes of law, however, differ in kind and consequence. When police stop or arrest an individual based on a mistaken legal understanding, they not only violate their sworn duty to enforce the law but also effectuate an unlawful deprivation of physical liberty. Historically, as a result, police mistakes of law have been

condemned by courts, triggering first tort liability,1 and later application of the

exclusionary rule, based on a finding that the seizure was unreasonable for Fourth Amendment purposes.2

Of late, however, courts have shown increasing willingness to excuse police mistakes of law, especially with respect to the myriad low-level offenses that play a staple role in modern policing. The Eighth Circuit, D.C. Circuit, and several state appellate courts now uphold police stops and arrests premised on

1. See Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 WAKE FOREST L. REV. 239, 323–24 (2002) (noting common law practice of imposing false-arrest and trespass liability for illegal arrests).

2. See 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.5 (4th

   ed. 2004 & Supp. 2010) (surveying caselaw deeming seizures based on police mistakes of substantive law unreasonable and subject to the exclusionary rule).

   what they deem objectively reasonable police mistakes of law.3 As a consequence, police are permitted to seize an individual for conduct that does not violate positive law and, with the exclusionary rule not at play, use the seizure to secure evidence in support of a prosecution for an unrelated offense of a more serious nature (typically involving guns or drugs).

   
   

   Lawless behavior by police is, of course, not unprecedented. During the first decades of the twentieth century, studies repeatedly highlighted the widespread incidence of illegal seizures,4 backed by the Orwellian assertion that police needed to engage in “illegality . . . to preserve legality.”5 The excesses, which over time inspired major public concern,6 figured centrally in the Warren Court’s criminal procedure revolution, with Mapp v. Ohio, the watershed 1961 decision extending the Fourth Amendment’s exclusionary rule to the states, serving as a cornerstone.7 In later years, the seizure authority of police was further limited by, inter alia, decisions striking down substantively vague laws on due process grounds,8 casting into disfavor such time-honored tactics as rounding up individuals based on “suspicion.”9

   
   

3. See infra Part I.B.

4. See, e.g., Caleb Foote, Safeguards in the Law of Arrest, 52 NW. U. L. REV. 16, 21–27 (1957) (discussing reports of illegal detentions occurring nationwide); Jerome Hall, Police and Law in a Democratic Society, 28 IND. L.J. 133, 154 (1953) [hereinafter Hall, Police and Law] (stating that 3.5 million illegal arrests and imprisonments occurred in 1933—a number that increased as of 1950); Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. CHI. L. REV. 345, 359–61 (1936) [hereinafter Hall, The Law

   of Arrest] (analyzing findings from Boston, Detroit, and Los Angeles showing common incidence of illegal arrest); Sam Bass Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, 153 (1940) (discussing frequent police resort to illegal frisks).

5. ERNEST JEROME HOPKINS, OUR LAWLESS POLICE: A STUDY OF THE UNLAWFUL ENFORCEMENT OF THE

   LAW 64 (1931).

6. See NAT’L COMM’N ON LAW OBSERVANCE & ENFORCEMENT, REPORT ON CRIMINAL PROCEDURE 14

   (1931) (“Indiscriminate exercise of the power of arrest is one of the most reprehensible features of American criminal justice.”); NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS, HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGS OF THE ANNUAL CONFERENCE

   MEETING IN ITS SIXTY-FIRST YEAR 274 (1952) (“At no time in history has public criticism of police services been as severe and as widespread as it is today.”).

7. 367 U.S. 643, 655 (1961). The rule was imposed on federal agents several decades earlier in Weeks v.

   United States, 232 U.S. 383, 398 (1914).

8. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 51 (1999) (city antigang loitering ordinance); Kolender v. Lawson, 461 U.S. 352, 361 (1983) (California loitering statute); Papachristou v. City of Jacksonville, 405 U.S. 156, 170–71 (1972) (city vagrancy ordinance). For a discussion of the troubling use of such laws to target African-Americans in particular for decades after the Civil War, see DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL

   WAR TO WORLD WAR II 107, 112 (2008).

9. See generally HOPKINS, supra note 5, at 63–64, 70 (condemning the high prevalence of “on-suspicion” bookings in 1929 and 1930); Hall, The Law of Arrest, supra note 4, at 359 (identifying 3,500 “suspicious

   Substantive law lawlessness has attracted less attention over time. But this too is ripe for change, given broader evolutionary developments. As law enforcement has become more proactive in recent years, relying less on citizen complaints10 and more on police investigative initiative,11 substantive law has

   assumed correspondingly greater significance. Modern-day strategies like order-maintenance policing and vigorous traffic patrol depend on the ever- expanding array of low-level offenses contained in state, local, and federal codes as tools to stop and arrest individuals,12 providing bases to secure evidence or information allowing for more serious prosecutions.

   
   

   This street-level shift has, in turn, been facilitated by Supreme Court decisions increasing the discretionary authority of police to seize individuals without warrants. In 1996, in United States v. Whren, the Court held that the legal basis offered by police to justify a traffic stop can merely be a pretext to

   investigate suspicions of unrelated criminal activity.13 Five years later, in

   Atwater v. City of Lago Vista, the Court held that the menial nature of the offense justifying an arrest is constitutionally irrelevant, allowing police to allege violation of any law, however trivial in nature or consequence, as a

   
   

   person[]” arrests in Boston between 1928 and 1933, nearly all of which resulted in release without court appearance).

10. See generally Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547,

    627–42 (1999) (discussing the reactive nature of early law enforcement); George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 NOTRE DAME L. REV. 1451, 1468–75 (2005) (surveying the limited responsibilities of late-eighteenth-century law enforcement).

11. See Wayne A. Logan, Erie and Federal Criminal Courts, 63 VAND. L. REV. 1243, 1247–48 (2010)

    (discussing common police resort to minor offenses, especially concerning traffic, to secure evidence for more serious drug and weapons prosecutions). The practical importance of these many laws is magnified by the reality that police often enjoy authority to seize individuals for alleged violations of both their own jurisdiction’s laws and those of others. See, e.g., United States v. Santana-Garcia, 264 F.3d 1188, 1194 (10th Cir. 2001) (noting that, absent “state or local law to the contrary,” state and local police enjoy power to arrest for violation of federal law).

12. See Christine N. Famega, Proactive Policing by Post and Community Officers, 55 CRIME & DELINQ.

78 (2009) (examining various proactive policing methods now enjoying widespread use); Philip B. Heymann,

The New Policing, 28 FORDHAM URB. L.J. 407, 422–40 (2000) (same).

13 517 U.S. 806, 813 (1996); accord Arkansas v. Sullivan, 532 U.S. 769, 771–72 (2001) (per curiam) (validating a pretextual arrest on the same basis). The Whren Court also refused to impose any substantive limit on police seizure authority, stating:

[W]e are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and...