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We Are Finally a Police State, or May the Devil Take the Juristic Heien-most!

Does anyone really question whether we have long ago sunk into the muck of being a police state?  If anyone is so deluded, the newest United States Supreme Court opinion on Fourth Amendment matters should sweep away such a delusions.

Heien v. North Carolina came out yesterday, ironically Bill of Rights Day, and it involves a traffic stop of a vehicle, which ultimately results in the collection of cocaine because the occupants of the car couldn't shut up and they consented to a search.

What brought the case to the Supreme Court was the fact that the cop stopped the car for a brake light malfunction that really was not against the law: the officer made a mistake of law about the facts he was observing on which he based his liberty invasion.

Now, we all know that “ignorance of the law is no excuse,” right?  If you are accused of breaking the law and you genuinely don't know your conduct is illegal, you cannot invoke that doctrine to get out of accountability – you are deemed to know the law.  Unless you are a cop; a cop now is not deemed to know the law.

Giving, institutionally and systemically, greater rights to police than enjoyed by the polity has to be the definition of a police state.

In an opinion that will live in infamy, the Court ruled that reasonable good faith misunderstanding of what the law requires is a defense to a motion to suppress evidence.  In effect, they are ruling that the badged/jack-booted “law” “enforcers” are not deemed to know the law they enforce!  Huh?

This really is a conscience shocking opinion by SCOTUS, which had a duty appointed by the Framers to protect people from excessive government. The default position in this Republic was to be for liberty and against power, but that has eroded steadily since the early years, and then at juristic lightspeed since the Nixon justices were appointed in '68.

It is interesting that the chief justice cites two-century old cases to help support his anti-liberty screed, yet in that era, if there were violations of the Fourth Amendment, cases would get dismissed and government agents and judges could get sued, and the agents could get arrested for trespass, and habeas would lie. But the current court does not embrace those early doctrines, because they protected individuals and they properly but inconveniently punished government; “originalism” is only embraced these days where it appears to support power, which is ironically counter-originalist! This court only embraces the early doctrines that they think assist the power side of the equation.

If we ever needed proof of the long self-evidence notion that we have become a police state, this case is written to illustrate that truism. Ignorance of the law is not a defense for you or for me, but it is for the court's pals sporting badges [yes, I know the chief justice made an almost humorous, and patently cynical, distinction of that idea as between regular folk and their government chums, but his utterances on that have the substance of the Emperor's iconic raiment].

Although this purports to be a narrow opinion, it will be expanded by our trial court judges in our suppression motions [negligently or otherwise], since they are no more required to know the law and its limitations than are cops; it's only the plain folk that have to implicitly and expressly know the law, or else they get screwed.

There was a time that everyone understood that liberty is the default position in this Republic and power is the disfavored position.  That founding notion has been turned on its head time and time again since 1968, and now it has been scrapped entirely.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


Michael DeFrank

Posted Dec 17, 2014 at 12:10:48

I know there are plenty if Csl cases that state a good faith mistake of law is not acceptable in a motion to suppress based on a warrantless search (e.g. In re Tony C.).

I would certainly argue that these Cal. cases offer our Californians greater protection than this case. What a horrible decision!


Posted Dec 17, 2014 at 12:18:35

The problem is that there is no independent state grounds for suppression motions, so the cops will be free to be ignorant [despite hopeful language against such a notion in the opinion!] in California when the issue is 4th Amendment suppression issues. This is police statism run rampant.


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