Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding–that police act constitutionally when they make certain mistakes of law–and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the “other” rule of lenity–that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police’s “good faith.” And then there’s the historical dimension of Heien. So, as expected, Heien is a big decision.
For now, I’d like to focus on how lower courts will construe Heien in light of Justices Kagan’s concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan’s decision to join the majority may seem somewhat surprising. But the content of Justice Kagan’s concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan’s concurrence might be an example of “aspirational narrowing.” It’s less clear that Justice Kagan’s efforts will be successful.
Justice Kagan points out three ways in which the Court’s holding is limited. Two points appear in the main text of her opinion and another comes up in a footnote. The two main-text points are that the majority relies on an objective inquiry and that it imposes a more demanding requirement than would apply in a qualified immunity case. The footnote asserts that a reasonable mistake as to the content of the Fourth Amendment itself cannot be reasonable for Fourth Amendment purposes. Let me take up these points in turn.
1. The inquiry is objective, not subjective. This basic point is well supported, as the majority expressly endorses an “objective” inquiry. But Justice Kagan’s cashing out of this point is surprising. As she puts it:
[T]he government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. [C]ontrary to the dissenting opinion in the court below, an officer’s reliance on ‘an incorrect memo or training program from the police department’ makes no difference to the analysis.
But the majority says nothing about police memos or training. Moreover, Justice Kagan’s conclusions are questionable on their own terms. Objective inquiries often incorporate relevant facts, including things like training and advice. Indeed, the Supreme Court recently said just that in a qualified immunity case. Even though the qualified immunity standard is quite expressly “objective,” the Court