I am working on a longer piece about how Sotomayor has emerged as the leading civil libertarian voice on the Court. But in the meantime, read Lithwick on the case that came down Monday, in which the Court held that a search of a motorist who was not in fact doing anything illegal was nonetheless “reasonable” under the Fourth Amendment. Sotomayor, alas, was the only dissenter. Her opinion merits quotation on several points:
Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down. Traffic stops like those at issue here can be “annoying, frightening, and perhaps humiliating.” We have nevertheless held that an officer’s subjective motivations do not render a traffic stop unlawful. But we assumed in Whren that when an officer acts on pretext, at least that pretext would be the violation of an actual law. Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. (“There is scarcely any law which does not admit of some ingenious doubt”). One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.
Of course, if the law enforcement system could not function without permitting mistakes of law to justify seizures, one could at least argue that permitting as much is a necessary evil. But I have not seen any persuasive argument that law enforcement will be unduly hampered by a rule that precludes consideration of mistakes of law in the reasonableness inquiry. After all, there is no indication that excluding an officer’s mistake of law from the reasonableness inquiry has created a problem for law enforcement in the overwhelming number of Circuits which have adopted that approach.
While I appreciate that the Court has endeavored to set some bounds on the types of mistakes of law that it thinks will qualify as reasonable, and while I think that the set of reasonable mistakes of law ought to be narrowly circumscribed if they are to be countenanced at all, I am not at all convinced that the Court has done so in a clear way. It seems to me that the difference between qualified immunity’s reasonableness standard—which the Court insists without elaboration does not apply here—and the Court’s conception of reasonableness in this context—which remains undefined—will prove murky in application. See ante, at 11. I fear the Court’s unwillingness to sketch a fuller view of what makes a mistake of law reasonable only presages the likely difficulty that courts will have applying the Court’s decision in this case.
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To my mind, the more administrable approach—and the one more consistent with our precedents and principles—would be to hold that an officer’s mistake of law, no matter how reasonable, cannot support the individualized suspicion necessary to justify a seizure under the Fourth Amendment. I respectfully dissent.
The second-to-last paragraph seems to be directed at the Kagan/Ginsburg concurrence, which urges that the holding be applied narrowly. I am not at all optimistic that this is how lower courts will in fact apply the holding in this way. It seems more likely that the case will be used to give more and more leeway to the police despite the paucity of evidence that legitimate law-enforcement objectives are being served. I also note that Scalia’s stated preference for clear, applicable rules has once again been trumped by the pot-smoking hippie exception to his various alleged principles.