Reasonable Wrongness

Somewhat like an alarm going off in the smouldering remains of a fire, the Supreme Court’s decision in Heien v. North Carolina, upholding a search incident to a broken tail-light, has set off a flurry of public criticism.

Notwithstanding vociferous exasperation from some quarters in the media, the Court’s ruling had nothing to do with Justice Scalia’s subservience to corporate interests. It was rather the putrid fruit of a poisonous jurisprudence.

North Carolina law requires a vehicle to have “a stop lamp” (nowadays called a tail-light). Heien’s vehicle had two, one of which was not working. The essence of the Court’s decision was that even though Mr. Heien had done nothing wrong his stop, detention and search were nevertheless lawful.

It always helps to begin at the beginning of things which, in the law’s case, is English.

The American distaste for prepositional clauses leads them to think that in order to arrest someone there has to be “probable cause”. Not so; and non-use of prepositional clauses turns hard thinking into mush. In order for a search or seizure to take place there must be probable cause to believe that a crime has been or is being committed.

Once it is understood what probable cause really is, the wretched absurdity of the Court’s decision unfolds as if unto a bowl.

How is it possible for there to be probable cause to believe a crime was committed when what was observed was not a crime at all? It isn’t. To say otherwise, is goobledygook, with emphasis on the “gook.”

How did the Supreme Court get itself to swallow this gook? It did so by driving a truck the wrong way through the tunnel of the word “believe”.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For at least a century and a half after it was written, the Fourth Amendment was understood to require a warrant and probable cause before an arrest or search could be undertaken. In other words, the word “reasonable” was understood to be contextually defined and limited by the ensuing clauses. “Reasonable” meant having a warrant and probable cause.

In 1925, in Carrol v. United States (1925) US, 267 US 132 the Supreme Court held that it wasn’t always necessary to have a warrant so long as there had been probable cause for the search.

It will be noted that this abbreviated way of speaking — which substitutes the phrase “for the search” for “to believe a crime has been committed, thereby warranting a search” — runs the risk of altering the constitutional context unless one remembers precisely that which has been skipped over.

That said, the Carrol decision did not alter the long understood rule that “reasonable” meant having probable cause to believe a crime was committed.

Then came Rehnquist. This man, joined by other early proponents of the national security police state, had a deep and abiding antipathy toward the Fourth, Sixth and Eighth amendments. Under Rehnquist’s guidance the word “reasonable” became decoupled from the rest of the Fourth Amendment.

This decoupling contravened all canons of statutory or constitutional construction. If the warrant and probable cause clauses had nothing to do with the constitutional requirements for a search why bother stating them at all? It would suffice to simply have written: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [.]”

However, it is axiomatic that all words in a statute or provision must be given effect. If a court can ignore part of a sentence or paragraph why bother with written statutes and laws at all?

The Supreme Court’s decoupling of the word “reasonable” from the rest of the amendment simply erased one half of the constitutional guarantee. The Fourth Amendment was there but it was there for show and for optional use. It established no constitutional standard.

The situation was even worse because along with this decoupling the Court lowered the standard of proof from “probable cause” to “reasonable suspicion.” (See Terry v. Ohio (1968) 392 US 1) That is another story not germane to the present issue; for, in the context of the Heien case, the question still remains “reasonable suspicion” of what?

Anglo-American jurists think that “reasonableness” is some sort of sacred totem that solves all problems. Actually it is simply a malleable weasle word. “Reasonable” simply means: does it sound, sit and feel more or less sensible, common sensical, practical, maybe even a tad logical.

The sheer gooeyness of the word “reasonable” has troubled the Court which is why (since the advent of Rehnquist) it cobbled up the term objective reasonableness.

The notion is that whatever “reasonableness” might be exactly it is to be measured “objectively” by known, observable existing hard facts of some sort, which other people can see and assess for themselves. In other words, we are not wandering into the nether world of the Erlkonig (a fantasy goblin said to inhabit German forests).

Of course, the phrase “objective reasonableness” is itself a pleanosm — a redundancy which corrodes if it does not actually destroy the word modified. What is non-objective or “subjective reasonableness”? Insanity?

“But of all these books there were none he liked so well as those of the famous Feliciano de Silva’s compositions. Their lucidity of style and complicated conceits were as pearls in his sight, particularly when in his reading he came upon courtships and cartels, where he often found passages like “the reason of the unreason with which my reason is afflicted so weakens my reason that with reason I murmur at your beauty;” … (Don Quixote de La Mancha Ch. 1. )

Should we really have to worry about the interior “reasons” of a lunatic? And is the constitutional standard for a search of seizure simply that it not be outright insane?

Indeed yes, because what the Supreme Court has now held is that the subjective but erroneous beliefs of the arresting officer are constitutionally reasonable. In other words, it has twisted probable cause into a subjective belief without objective correlative.

It must be remembered that the single broken tail-light was not “objectively” a crime in North Carolina, whether the officer thought so or not.

The Court’s decision does not destroy the Fourth Amendment — that has already been done — it simply opens the way for complete total police arbitrariness without recourse to law.

The second wretchedness of the Heien decision is actually the poisoned fruit of liberal jurisprudence

For years it was understood that an unconstitutional act was ultra vires. That is fancy Latin for “beyond the pale” or “in the outer darkness.”

Let me explain. The Constitution defines a reality in which we wish to exist. It is an ideal, but it is an ideal which we — by our daily actions — bringing into actual being by our observance of it. The US Constitution is fundamentally an ontological document.

Thus, an act that was unconstitutional was deemed “outside” the pale and, being so, simply did not exist in contemplation of law — that is, in the ideality of the Constitution and its bounden actualization by us. It followed that if an act was unconstitutional it could not, by that same contemplation, being given any force and effect. It was a nullity.

The Exculsionary Rule — disallowing the use at trial of illegally garnered evidence — followed ineluctably. If a search or seizure contravened the Fourth Amendment its fruits could not be given any effect because to do so would be to accept what was not acceptable.

Police and prosecutorial mavens on the Court chafed under the logic of the Exclusionary Rule against which they mounted many successive attacks.

To shore up the rule, in Mapp v Ohio (1961) 367 US 643, the liberals on the Court conjured up a totally ridiculous sociological function to justify the exclusion. It existed, they said, as a “deterrent” to police misconduct. Excluding illegally seized evidence would help “teach” the police how to behave.

This functionalist rationale was total garbage. It was part of “modern” sociological jurisprudence which rang sweetly in “liberal” ears. But there was no showing that the police (anymore than criminals) think about the law beforehand. Nor was there any evidence that an officer lost sleep at night over a lost search.

Conservatives were quick to parlay this nonsense to their own advantage. Well then, they said, if a police officer honestly believed in his mistake there really is no bad behavior to deter. There is no point in punishing a person who is trying hard to be good. (Leon v. United States (1984) 468 US 897)

In casting about for pragmatic and sociological-sounding justifications, the liberals had stupidly shifted the focus from whether there were grounds to believe that a person had violated the law to whether the police were trying to break or consciously evade the law.

Good faith ought to be irrelevant. An act is either constitutional or it is not. Who cares about good intentions? It’s the road to hell that matters.

In the decade after Leon, the Court somewhat backed away from the good faith rule, but today they finally took the jump. Through a double gibberish Sundae of bad grammar and sociological nonsense and twisted thinking they have mulched the Fourth Amendment into a guarantee against insane and malicious searches and seizures. While that might sound not so bad, it is in fact terrible because “insane and malicious” is so far in the outer orbit of Pluto that it leaves an immense circuit of allowable arbitrary behavior.

It is even incorrect to say that today’s ruling by the Court renders the Fourth Amendment discretionary. Here is a standard definition of allowable judicial discretion:

“The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.” (In re Cortez (1971) 6 Cal.3d 78, 85-86 >)

Thus, the rule follows that a judge who is actually mistaken as to what the law is cannot and does not properly exercise any discretion which can be upheld.

Although this definition of discretion makes wide berth for “judgements within the bounds of reason” those judgements must be informed by true facts and correct legal principles. If not so informed the definition simply collapses into a meaningless heap.

It is that heap which the Supreme Court triumphs today under the newly minted doctrine of reasonable wrongness.