Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 153 Issue: 29

February 09, 2007

Driver's Fuzzy Dice Should Say It All

The greatest invention of the 20th century was the ''mute button.'' Mankind's new ability to silence commercials for Ronco's Pocket Fisherman may have been the most significant advance in mental health since the founding of the Menninger Clinic.

Yet there are times a ''mute button'' would also help in criminal law. One example is the 4th District Appellate Court's recent search and seizure decision in People v. Cole, No. 4-05-0672, (Jan. 9).

Officer Nicholas Hiland stopped a car driven by Ronald Cole for violation of section 12-503(c) of the Illinois Vehicle Code. 625 ILCS 5/12-503(c) (2004). This statute provides that no person shall drive a motor vehicle that contains an object that ''materially obstructs'' the driver's view. The object Hiland observed was a single strand of beads hanging from the rear view mirror. Hiland requested Cole's driver's license and determined that he lacked a valid one from Illinois. A search following Cole's arrest uncovered several types of illegal drugs.

After charges were filed, Cole filed a motion to suppress the drugs. Following a hearing, the trial judge denied the motion. After a stipulated bench trial, Cole was convicted and sentenced to twelve years imprisonment.

The 4th District reversed and found that Hiland possessed neither probable cause nor reasonable suspicion sufficient to legally stop the car. In reaching this holding, the court quoted at length from Hiland's testimony at the suppression hearing. Hiland testified that it was his understanding that anything hanging between the driver and the front windshield resulted in a violation of section 503(c). The appellate court, however, noted that it is not enough that an item ''obstructs'' the driver's view; rather, it must ''materially obstruct'' his view before the statute is violated. The court thus found that Hiland acted under a ''mistake of law.''

The court stated that it could find no Illinois case dealing with a traffic stop based on a police officer's mistake of law. Thus, it reviewed federal cases on this issue, and wrote, ''We agree with the majority of federal courts of appeal that a traffic stop based on a mistake of law is generally unconstitutional, even if the mistake is reasonable and made in good faith.'' Slip op. 12.

The court then applied this legal rule to the facts of the case. Hiland testified that the beads either ''obstructed'' or ''hindered'' the driver's view; however, the court concluded that this was insufficient. It held that ''a reasonable officer correctly interpreting the law would not have had reasonable suspicion to conduct the traffic stop because Officer Hiland never testified the beads constituted a material obstruction as required by the statute.'' Slip op. 15.

The court wrote, ''[B]ased on Officer Hiland's mere agreement on redirect examination that the beads 'hindered' defendant's view, we conclude a reasonable officer correctly interpreting section 12-503(c) could not have possessed reasonable suspicion to initiate the traffic stop.''

The court wrote, ''Absent testimony that Officer Hiland believed the beads materially obstructed defendant's view, the trial court erred in concluding that Officer Hiland had reasonable suspicion to initiate the traffic stop.''

Thus, the appellate court found a Fourth Amendment violation and suppressed the evidence.

The Cole opinion is thoughtful and articulate - and its conclusion may even be correct. Yet its analysis is wrong and is based on a misreading of Fourth Amendment law. There is a good reason the Cole court could not find an Illinois case discussing ''mistake of law'' and traffic stops: the reason, quite simply, is that the doctrine of mistake of law has no role to play in this area of the Fourth Amendment.

To find out why, let's assume that Illinois law provides that it is illegal to drive with fuzzy dice of a certain size hanging from the rear view mirror. A driver who is in clear violation of this statute is pulled over four times by four different officers on four different days.

Officer Allen says he stopped the car on Monday because he has memorized the vehicle code, and once he saw the fuzzy dice he immediately knew the driver was violating the statute.

Officer Baker says he stopped the car on Tuesday just because the driver was black. Only after he made the stop did he see the dice, and so he charged the driver with that offense.

Officer Clark testifies that when he saw the fuzzy dice on Wednesday he was ''100 percent sure'' they were too small to be covered under the statute. He was sure the stop he was making was illegal. Nevertheless, he made the stop and charged the driver because he needed one more traffic stop for his quota that day.

Officer Dodd says he made the stop on Thursday just because he has always hated fuzzy dice. He had no idea the dice violated the law. When he found out later about the statute he said, ''Wow! I had no idea I was stopping the guy for a real crime.''

Question: How many of these stops violate the Fourth Amendment?

Answer: None.

To find out why, take a look at two recent U.S. Supreme Court cases never cited by the Cole court, Devenpeck v. Alford, 543 U.S. 146 (2004) and Brigham City v. Stuart, 126 S.Ct. 1943 (2006).

In Devenpeck, the police officers investigating Alford's disabled car became suspicious that Alford might be a police impersonator. But when they saw that Alford was making an audiotape of their conversation, they arrested him only for violating a state privacy statute. It was later determined, however, that the taping was not a crime, and the charges were dropped.

Alford later sued the police for unlawful arrest. The police responded that even if the taping was not a crime, they nevertheless had probable cause to arrest him either for obstructing an officer or impersonating an officer. The 9th U.S. Circuit Court of Appeals refused to allow the officers to raise this issue, both because these offenses were not actually invoked by the police at the time of the arrest, and because they were not ''closely related'' to the only offense invoked by the police at the time of arrest, i.e., the privacy violation.

The U.S. Supreme Court unanimously reversed and upheld the legality of the arrest. It held that ''an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.''

The subjective reason an officer has for making an arrest need not be the criminal offense for which the known facts provide probable cause. The officer's action is legal under the Fourth Amendment as long as ''the circumstances, viewed objectively, justify that action.''

The unanimous court reiterated that ''subjective intent of the arresting officer ... is simply no basis for invalidating an arrest. Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest.'' (Accord, Brigham City v. Stuart, 126 S.Ct. 1943 (2006) (Fourth Amendment analysis ''has nothing to do with discerning what is in the mind of the individual officer conducting the search.'')

Apply this to our four hypotheticals. According to Devenpeck and Brigham City, Allen's stop is clearly proper because the facts objectively showed a violation. Baker's stop is proper because his racism is irrelevant under the Fourth Amendment; the facts objectively showed a dice violation and thus the stop is legal under the Fourth Amendment. (Whether Baker's actions violate the Equal Protection Clause is a separate issue. See Whren v. U.S., 517 U.S. 806 (1996)).

Clark may have thought the arrest he was making was illegal, but according to Devenpeck and Brigham City his subjective mistake of law is irrelevant under the Fourth Amendment. Since a ''reasonable officer'' could have seen that the dice objectively violated the statute, the stop was proper regardless of Clark's misbehavior. The analysis is the same for Dodd.

Let's be clear: Baker, Clark, and Dodd are bad police officers who should be disciplined by their respective police departments. Nevertheless, under Devenpeck and Brigham City their actions did not violate the Fourth Amendment.

What Devenpeck and Brigham City illustrate is that in evaluating the legality of an arrest or stop you should look solely at the facts as they objectively appear to a reasonable officer, e.g., Officer Allen in our first hypothetical. In all four of our hypos, a reasonable officer could have objectively observed a car exhibiting fuzzy dice that objectively violated the statute. And that ends the Fourth Amendment analysis. The thoughts of Baker, Clark, or Dodd have no bearing on the objective legality of their actions. A court should simply push the ''mute button'' when the officers try to reveal the subjective motivations for what they did. Under Devenpeck, it is totally irrelevant to a Fourth Amendment analysis. The only testimony we need from the officers is the actual size of the dice and where they were hanging; the court can then determine whether a reasonable officer could have objectively believed there was a violation.

Similarly, Devenpeck and Brigham City show that the Cole court was wrong in relying on whether Hiland thought the beads were ''hindering'' or ''merely obstructing.'' It is likewise irrelevant whether or not he ever used the statutory language ''materially obstruct.'' The only issue is whether a reasonable officer could have objectively possessed either reasonable suspicion or probable cause that the strand of beads was ''materially obstructing'' the windshield per the statute. And the only way a court can answer this question is to examine case law that describes the kinds of objects that do - and do not - ''materially obstruct'' a driver's vision under the statute.

Again, the opinion in Cole is thoughtful and articulate. And its ultimate result may even be correct. But, according to the U.S. Supreme Court in Devenpeck and Brigham City, the only proper way to determine whether the single strand of beads might support either reasonable suspicion or probable cause is to objectively compare it with other items examined by case law that has glossed the statute. As for Hiland's subjective views, Devenpeck and Brigham City teach courts simply to reach for the remote and click ''mute.''