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In 2055, a grandfather in his 80s will sit down on his couch and begin to tell his grandchildren stories that start with “When I was a boy … .” He will talk about those papery things that people once read called “books”; he will talk about a time when a cup of coffee only cost $8.50 and then he will try to scare his grandkids with tales of an evil substance called “gluten.” That grandfather will be James and his grandkids will be bored. That is, until James tells his grandchildren about the time when a police officer had to observe an actual violation of law to pull a vehicle over.
That’s right. “Back in our day,” reasonable suspicion for a traffic stop was based upon objective evidence that the suspect had committed a traffic violation. For example, in 1992, a police officer stopped a suspect’s car because the license plate “did not look secure.” Cash v. State, 593 N.E.2d 1267, 1269 (Ind. Ct. App. 1992). This stop led to the driver’s arrest for possession of marijuana. Although the license plate was off-center and only fastened by a single bolt, it was in a “horizontal position” and was “clearly visible.” Id.
The police officer believed that it was a violation of the law to not have a secure license plate. However, the Indiana Code made it clear that if the license plate was secure and in a horizontal position, there was no violation of law. The Court of Appeals noted that the officer had “imposed subjective conditions plainly beyond the scope of the regulation” and suppressed the stop. Id. at 1269. (Emphasis added.) See also Ransom v. State, 741 N.E.2d 419, 422 (Ind. Ct. App. 2000) (“Although a law enforcement officer’s good faith belief that a person has committed a violation will justify a traffic stop . . . an officer’s mistaken belief about what constitutes a violation does not amount to good faith.”)
Those certainly were the good old days. It was an innocent time before Lady Gaga, reality TV and North Carolina v. Heien, 135 S. Ct. 530 (2014), which gave police officers increased discretion to make traffic stops. In Heien, the question presented was “whether . . . a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.” Id. at 534. The Supreme Court of the United States held that a reasonable mistake of law was sufficient for a vehicle stop under the Fourth Amendment and validated a police officer’s stop of a vehicle for only having one functional brake light (even though North Carolina law only required one working brake light for the car to be lawfully on the road.) Id. at 534-5. In her dissent, Justice Sonia Sotomayor noted a concern that this represented an erosion of “protection of civil liberties in a context where that protection has already been worn down.” Id. at 543.
Heien has had an effect on Indiana cases. For example, in Williams v. State, 22 N.E.2d 730 (Ind. Ct. App. 2014), the Court of Appeals originally reversed the denial of a motion to suppress when a law enforcement officer stopped a motorist for what later proved to be legal conduct under the Indiana Code. However, on rehearing, after the Heien decision, the Court of Appeals reversed its prior ruling stating that the officer’s mistake of law was reasonable and that the Fourth Amendment was not violated. Williams v. State, 28 N.E.2d 293 (Ind. Ct. App. 2015).
It should be noted that Williams did not raise a claim under the Indiana Constitution’s Article 1, Section 11. (In fairness, at the time, federal law was on his side. Heien would be decided six days after Williams was decided.) The Court of Appeals has noted that “protections provided by the Indiana Constitution may be more extensive than those provided by its federal constitutional counterparts.” Taylor v. State, 639 N.E.2d 1052, 1053 (Ind. Ct. App. 1994). However, on rehearing, the Court of Appeals left for “another day the question of whether a reasonable mistake of law can support a traffic stop under the Indiana Constitution.” Williams v. State, 28 N.E.2d at 294 n. 1.
So in the end, Heien makes it easier for a police officer to justify why he or she pulled over a vehicle. It is no longer reasonable suspicion of a traffic violation that will get a motorist pulled over, but reasonable suspicion of what a police officer thought was a traffic violation that lands a driver on the side of the road.
As constitutional protections erode away, we can flash forward to 2055 and picture why future generations will get pulled over. Maybe by then police officers will only have to show reasonable suspicion of what should be a violation of the law. For example, maybe they will only have to show that the motorist was driving a minivan with a “Stick Family” decal that tried to claim that a Wookie was part of the family. After all, those decals should be a violation of the law. Right? For now, you can drive with a Wookie decal without getting pulled over. Our grandkids may never know how good we had it.•
James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.
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