Mediaboss Marketing

I attended the oral argument this morning in the Supreme Courts first case of the new Term, Heien v. North Carolina. I had a long preview of Heien here. He are some impressions of the argument.

On the whole, I thought the argument was puzzling. A large chunk of the argument time was spent on Justice Scalias insistence that the Court could not render a decision on the rights question alone without also ruling on whether the exclusionary rule was available. I found this odd for two reasons. First, the state had never argued the exclusionary rule. The states Brief in Opposition had argued that it would be better to review a different case in which the exclusionary rule issue was also part of the case, a position the Justices presumably weighed before granting cert on just the rights question.

Second, the logic of Davis v. United States is that the Court is free to rule on substantive Fourth Amendment issues even when there is no remedy. Its fine to consider rights when there are no remedies, Davis concluded, because the two are conceptually distinct questions. More broadly, the Court often rules on one issue and remands for other issues that need to be resolved before we know which side will win. Given that, it was puzzling that so much argument time was spent in Heien considering whether they could decide the rights issue without also deciding the remedy in the same case.

Perhaps the Court will dismiss Heien as improvidently granted and later take a different case in which the exclusionary rule issue is presented? Its a possibility. But that path would seem pretty puzzling in light of cases like Davis.

In the time not spent considering whether the Court could decide the case, there was a lot of discussion of how a reasonable mistake of law standard would be different from the good faith exception to the exclusionary rule or qualified immunity. Is the proposed standard any different, and if so, how? Both the state and the U.S. suggested that the reasonable mistake of law standard is similar to qualified immunity but doesnt go as far. The state suggested that there could be a difference if a prosecutor tells the agent that the search is legal, presumably when the prosecutor is relatively straightforwardly wrong. There would be no reasonable mistake of law, as the prosecutor was clearly wrong, but prosecutorial approval could trigger qualified immunity. The U.S. suggested that the reasonable mistake of law standard should be for close calls, unlike qualified immunity that applies unless the error was clear.

How might the Court rule? Im not at all sure. Justice Kennedy suggested that he would say that the good faith exception applies to the facts of Heien, and that he wanted to reach that issue. Justice Kagan seemed sympathetic to the defenses argument on the rights issue. Justice Breyer seemed open to allowing a reasonable mistake of law claim if it could be narrow. And a lot of Justices didnt give any sign one way or the other, perhaps in part there was so much focus on the remedies issue. Given the close connection between rights and remedies in the case, it may not matter which side in Heien wins on the only briefed issue, that of rights. The rights issue isnt really where the action is, and its hard to predict if that means the Justices will give the rights issue to the defense and wait for another case on the exclusionary rule, or, alternatively, import exclusionary rule concepts into the rights issue to resolve the ultimate disposition of such cases now even though the remedies issue isnt before them.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

Read the rest here:
Volokh Conspiracy: Oral argument in Heien v. North Carolina