"Heien gives the police more leeway to stop cars for the wrong reason, and that SUCKS." 

One of the first principles learned by students of criminal law is "Ignorantia juris non excusat", or "Ignorance of the law is no excuse".  That makes sense, doesn't it?  Otherwise, people could excuse their criminal actions by saying, "I thought that was legal."  However, yesterday the Supreme Court of the United States ("SCOTUS") ruled that the police--the one group that definitely should know the law--can be excused for their ignorance of the law, so long as the ignorance was "reasonable".

So what is a mistake of law, you ask?  For example, if a police officer pulled someone over because he/she thought the person's windshield was cracked, and it was not cracked, that's a mistake of fact.  If, however, he/she made the stop because of a cracked windshield, and cracked windshields are not even illegal, that's a mistake of law.   

HEIEN v. NORTH CAROLINA is the case, handed down just yesterday.  Heien gives the police more leeway to stop cars for the wrong reason, and that SUCKS.  In Heien, a police officer stopped a vehicle under the mistaken belief that having only one brake light was illegal in North Carolina.  It wasn't illegal.  This was a mistake Chief Justice Roberts found "objectively reasonable".  Cocaine was later found in the vehicle. The North Carolina Supreme Court reversed a lower appellate court, which ruled that the cocaine had to be suppressed because there was no grounds for the stop.  SCOTUS AFFIRMED. 

The holding in Heien states that, at least under the US Constitution, both mistakes of fact and mistakes of law are now excusable so long as they are reasonable mistakes, and suppression of evidence will not be required when a such mistake is made.  I call this tantamount to a "good-faith exception" for traffic stops.

Prior to this ruling, reasonable mistakes of fact by police were generally excusable, but reasonable mistakes of law were not.  In Wisconsin, that has been the law for over 15 years.   State vs. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999).  That principle was recently reiterated in State v. Brown, 2014 WI 269.  Therefore, if the police made a stop on a mistake of law and discover evidence as a consequence, that evidence must be suppressed, even if the mistake was reasonable.  

Heien does not necessarily mean that reasonable mistakes of law are now excusable in Wisconsin.  The Wisconsin court can interpret  the Wisconsin constitution in a way that is more generous to citizens' rights than the US Constitution has been interpreted by SCOTUS.  However, the Wisconsin court has generally followed the interpretations of SCOTUS on issues of Fourth Amendment law when deciding the scope of Article I, section 11, Wisconsin's counterpart to the Fourth Amendment.  Therefore, the decision does not bode good things for Longcore and Brown.  

The following is my letter to the editor of the La Crosse Tribune, submitted today:

Police "Body Cameras" Can't Help If They Are Turned Off.

In the wake of the situation in Ferguson, MO, President Obama has pledged $75 Million in federal funds, specifically to equip police officers with digital "body cameras".  The idea, of course, is that these cameras will objectively capture encounters between police and citizens.  This will take the "he said, she said" element out of the equation.  It will eliminate the human elements that have led to infamously unreliable eyewitness accounts.  It will protect the police from false accusations.  It will keep police "more honest".  All of this may be true, so long as the cameras are actually working and on, and if the footage is properly preserved.         

I am a criminal defense and car accident attorney.  As such, I have over the last 15 years routinely requested and examined police audio-video evidence.  Advances in digital technology have led to nearly every police vehicle, and nearly every police interview room, being equipped with audio-video equipment.  I want the audio-video record for obvious reasons:  It is often the best evidence of what actually happened, and of what actually was said.  It can be the best or worst evidence for a client; but it is the truth that matters most. 

In the case of most police squad cars, the digital equipment is designed to be perpetually on.  The system is designed to preserve the audio and/or video record anytime an officer activates emergency lights or sirens, or manually starts recording.  In either case, the equipment will also capture a period of time before the equipment was activated.  Importantly, officers are equipped with wireless microphones on their persons, which often allows them to record witness statements.  

Most law enforcement agencies have in place orders dictating how the audio and/or video equipment is to be used and maintained.  These orders usually require officers to inspect the equipment at the outset of their shift, to ensure it is properly functioning.  These orders also require that officers actually use the equipment to preserve evidence, allowing few exceptions.  

Despite these orders, there is, in my opinion, a shocking percentage of cases where video and/or audio-recorded squad evidence is not being properly captured and/or is not being properly preserved.  I have seen many cases of field sobriety tests done out of view of the camera.  I have seen many cases where officers' microphones are turned off; selectively turned off and on; or not functioning at all, while reportedly incriminating statements are being made.  I have seen multiple cases of audio-video not being recorded because the digital storage device was "full" or the equipment was down.  I have seen many cases where there is no video, no audio, and no explanation at all.  This very morning, I received a letter from the Town of Campbell Police Department, in response to my request, saying only, "[D]ue to computer issues we are unable to retrieve any audio/video recordings of this incident."       

I don't like to be critical of the police; but it is part of my job description.  I am also a citizen, and I rely on the police, just like everyone else.  Police are human.  They also have tough jobs.  Mistakes will happen.  That having been said, if it is true that "the conqueror gets to write history", then this technology must not only be available to the police, it must be properly used by them.  We cannot tolerate the selective or sloppy use of police cameras.                     

Chris Dyer, Attorney and Counselor at Law, Onalaska, WI.