>> our first case this morning is heien versus north carolina. mr. fisher? >> mr. chief justice, in a country dedicated to the rule of law, governmental officers should be presumed to know the law at least as well as the citizens are. that being so, when questions about individualized suspicion arise under the fourth amendment, they should be addressed against the backdrop of the correct interpretation of the law, not simply any plausible reading an officer might have. >> suppose that this state, north carolina, did have a good faith exception to the exclusionary rule. what would you be arguing today? >> we would still be arguing if that were the case that not only the fourth amendment was violated, but that the good faith exception didn't apply.

but you wouldn't have to reach that question in this case and i would concede to you justice kennedy, that would be a debatable argument under -- >> why would it be any more debatable than the argument you're making here? i more or less anticipated your answer. i think that has to be your answer. i think you have to tell us even if the good faith exclusionary rule applies, mistake of law just doesn't count. >> that's not exactly what this court's jurisprudence holds. the court is held that reasonableness can be taken into account at the remedy stage -- >> the question is why isn't that a problem for you when you say there cannot be a reasonable mistake of law? we know there can be. >> there's a difference, justice kennedy, between rights. when you ask the question what is reasonable as to whether or not the fourth amendment was violated, both in the jurisprudence in criminal cases and in qualified amunty cases, you do that against the construct interpretation of the law. >> we're talking about whether

as a categorical matter as a jurs prudential matter, this could be a reasonable mistake of law. a difficult -- an interesting question. but it seems to me that you have to make the same argument here or in the case where we have a good faith exception that you're making here and you have a problem with davis and kroll. then that undermines your categorical argument. >> no, i really don't think so, justice kennedy. i think the best exhibition of this in the case where the court wrestled with the notion how can something be reasonable in one sense and unreasonable in another. and the answer the court gave is that when we ask whether the fourth amendment was violated, we do not take mistakes of law into account. the reasonableness can go to the remedy question. this is the premise from which leon, kroll, and davis all

derive. >> mr. fisher, i have a preliminary question. even if you are right about mistake of law, isn't it a moot question in this case? because as i understand it, the traffic stop ended with a warning citation. so the traffic stop is over. and at that point the police officer asks if he can inspect the car. and the answer is yes. why isn't the consent to the search the end of this case? >> because it would be the fruit of the poisonous tree if the stop was illegal. there wouldn't have been an opportunity to ask for consent. i think that's why the state and the general haven't made argument that the consent wipes away the fourth amendment question here. >> suppose the officer had said, all right, i'm getting you a

warning. you're free to leave, but by the way, may i search your car? >> i think that's more or less what the officer did say here, justice alito. >> and you would say even in that situation that would be the fruit of the poisonous tree? >> yes. because the stop wouldn't have taken place. the court's cases say that a traffic stop is a seizure. so upon pulling mr. heien over, the officer needed to have reasonable suspicion to do so. and the only argument for reasonable suspicion is the mistake of north carolina law as to the brake light in this case. >> i understood you to stay earlier you don't take in qualified immunity whether it comes to mistake in law. >> i'm sorry, what i think i said was that you don't take the reasonableness mistake of law into account when you ask whether the fourth amendment was

violated. you do sometimes -- you do sometimes when you ask about the remedy. >> but the fourth amendment itself protects only against unreasonable searches and seizures by its term. i don't understand it would seem to me there's a stronger argument for taking the reasonableness of the officer's actions into account when you're talking about a mistake of law because that's what the fourth amendment says opposed to remedies and qualified immunity. >> the court rejected that precise argument in anderson. that textual argument. and because of a deep common law rule which is we ask -- >> if i could just pause. i thought we said that exacting where we said even though we're going to look at it in terms of remedy, that was not to say that the reasonableness didn't go to whether there was a substantive violation of the fourth amendment. >> my understanding of herring would be that's a mistake of fact case whether or not there's

a warrant out. and anderson and kroll and leon -- and leon, mr. chief justice, the court said the officer in that case acted exactly as a reasonable officer could and should have acted. time and again the court's exclusionary rule cases, they say the officer acted reasonably because at the reasonableness stage you can take into account as to whether the officer misunderstood the law. >> putting aside our discussion of herring, why does it make sense to say you don't take reasonableness into account when the fourth amendment only protects against unreasonable searches and seizures? >> i think for three reasons, mr. chief justice. there's a practical reason, a theoretical reason, and a jurisprudential reason. the deep common law heritage in this country that we have always followed in the best exposition of that is in the court's case.

that the laws are to be knowable. whether it be punishing somebody for violating the law or other actions, citizens or the government engages in, we always assume a correct understanding of the law even if it's later construed by a court in a way that wasn't exactly -- >> isn't it strange to cite for that proposition. didn't the court hold in cheek in the circumstances there ignorance of the law would be a defense? >> because of a special statutory exception that congress had written. the beginning of part two of cheek is what i'm relying on where there's a paragraph or two that sets out with numerous citations this justice holmes described that they are presumed to be definite and knowable. once you take that presumption and put it into the police officer's mind in this case or any other actor who acts on a mistake of law, then there is -- >> suppose the officer stopped

the driver here and said, you know, i've been going tonight law school and we don't know about this one light, two light thing. there's an intermediate court of appeals hearing the case, saying only one light is necessary. i don't know what the law is. you better get this fixed. >> i think there's two questions there. >> and then he sees the contraband. >> well, i think there's two questions embedded in there. one is whether the officer can look to court decisions or other third party sources to help him do his job. now, again, that is what the court has said in the kroll and davis cases that you take into account things like policeman yules, court decisions, the rest the court has embraced that in its remedy jurisprudence but many in wren has said that is off limits. there is also an element of your question asking if all the officer was worried about was the safety on the roadway. that would be a very different case. again, i'm going to turn the

court to wren where the court said if there's a stop done for reasons aside from probable cause, then the purpose of that stop such as the community care taking function might kick in. but of course the state hasn't made any argument in that respect in this case because the record is quite cloer the officer was performing a criminal investigation. >> mr. fisher, we don't review opinions. we review judgments. we review results. what you're complaining about here is the admission of what was discovered in the search of the car. right? now, what difference does it make whether that was lawfully admitted because it was a constitutional search or it was lawfully admitted because the remedy of excluding it would not be applied if there was a mistake of law, a reasonable

mistake of law. i mean, the constitutional problem is the admission of this evidence. and it seems to me whether it's properly admitted because the fourth amendment wasn't violated or whether it's properly admitted because the remedy for that violation is not exclusion of the evidence, you lose either way, don't you? >> nobody has addressed the question of remedy in this case because nobody needs to address -- >> we need to if we find as you were just to find that it violates the fourth amendment to make the search. we would then have to -- in order to decide whether this judgment is lawful we would have to decide whether the remedy of excluding that evidence has to be applied. >> forgive me. with respect, justice scalia, i'm not sure the court needs to do that. of course, i think the court can vacate and remand the judgment

just as it does innumerable other times it finds a problem with the lower court decision and then sends it back. even if this were purely a federal case, justice scalia, i'd be saying the same thing which nobody has briefed or argued the good faith in this case. >> well, you have. you have. and you acknowledge that it applies to remedies. >> no, no, no. here's what i've acknowledged justice scalia. we've acknowledged that the question of whether the mistake was reasonable would be relevant if at all at the remedy stage. so what you would do is you'd ask the question if this were a federal case where you had to reach the question, you'd ask whether the mistake of law in this case renders inappropriate. i would add that holding that it did render suppression inappropriate that it would be jurisprudence which thus far only when an officer relies on

binding law from a legislature or a court. >> so the most we can get from us is a remand. >> that's right. but i do think it's -- >> just let the north carolina court decide whether the remedy of exclusion should have been -- >> that's right. i'm not sure it's any different if i said there's a constitutional violation that i may or may not be here for remedy under chapman. those are the kinds of situations where the court would always resolve the constitutional question that the lower court addressed and then send it back down for the question of remedy. >> i don't know why -- following up on what justice scalia is saying. he's saying we don't give you a remedy unless we believe that one is warranted under the fourth amendment. and since we apply, doesn't matter whether north carolina applies good faith or not. what we apply in terms of determining whether a federal violation, constitutional violation is subject to any type

of remedy for you is the good faith exception. so why do we have to remand? i think that's justice scalia's question. i'm not quite sure you've answered it. >> the reason to remand is because the lower court hasn't addressed any question of remedy. so in the first instance, you should send it back for full -- >> but north carolina has a rule, i thought, that if you violate the fourth amendment, that's it. we don't have a good faith exception. >> that will be our position on remand, justice ginsburg. >> isn't that what the north carolina law is now? so it would be futile to send it back for them to answer the good faith exception since they have none. >> it wouldn't be futile, justice ginsburg. i think the analogy that i gave earlier about chapman is more or less on point. the court has held if the constitution is violated that the defendant in criminal case doesn't get a remedy unless he

satisfied that test. now, all the time in criminal cases you would decide the constitutional issue and then send it back for remedy analysis if the lower court hadn't addressed it -- >> that's because they would be applying federal law. they would be answering the question that you want us to leave unanswered. namely whether the constitution requires that this evidence be stricken from the case. >> well, let me -- >> but if, indeed, they're not going to ask that question when we send it back, it seems to me we have to answer that question here. before we are able to reverse or affirm that the north carolina court, it's a federal question. they are not going to get to that. but you're asking us to invalue la -- invalidate this on the law. and we cannot do that if there has been a violation of the fourth amendment, the remedy must be exclusion of the evidence.

that's a federal question. i think we're going to have to decide it. if we send it back to north carolina, they're not going to decide it. >> no, i don't believe they would or should. but i -- but just if a state had adopted a rule saying we're going to have a more favorable jurisprudence of constitutional error and give automatic new trials, the court wouldn't be prohibited from deciding a constitutional issue and sending it back to the state. in the retroactivity sphere, dan forde says states can choose for themselves. >> there's no question if north carolina applied a state constitutional analog to the fourth amendment, they could have a more extensive remedy than is recognized under our fourth amendment cases. but your argument is they can adopt a state law rule for fourth amendment violations that is more protective of defendants

than federal case law provides. that would be your argument, right? >> i don't need to make that argument. i think that would be an interesting question and i think the state may be able to do that, but what the carter decision in north carolina says is violations of the state constitution cannot be overlooked on good faith doctrine. >> was this decision based on the state constitution? >> no, it was based on the federal constitution. so we would send it back down and we preserved an argument that under state law the violation of fourth amendment also violates the north carolina constitution. >> but you're asking us to reverse it on the basis of federal law. and you're asking us to send it back to a state court which is not going to inquire any further interfederal law. even though federal law arguably, you will concede, says that even if there is a fourth amendment violation, if there is

a good faith reasonable belief that the law was violated, the remedy of exclusion will not be imposed. that's what the constitution requires. and you're asking us to say, oh, no. there's been a violation of the constitution and we're going to reverse this judgment. even though we haven't inquired into whether the remedy that you want is required. i don't see how we can do that. >> i don't want to keep saying the same thing. i'll try to say one more time, i think it's fully customary for this court to have a case from state courts where a state court issues a ruling on federal law.

wrong. their opinion got federal law wrong. but their judgment did not get federal law wrong. if indeed a good faith mistake of law does not require the exclusion of the evidence from the trial. the judgment did not get federal law wrong. if that's the case. >> well, i think that their analysis got federal law wrong for the -- >> don't review analyses. we review judgments. you're urging that this conviction has to be set aside. that's what we're reviewing. the conviction, not the opinion. >> well, justice scalia, if you want to decide the good faith question that has not been briefed by any party, i suggest you might want to tread

carefully. now, we've given you -- maybe what i need to do is explain to you why even if you did feel like you needed to get to that question which i don't think you need to, but if you did need to get to that question, why you should say that the good faith doctrine doesn't apply. >> i don't want to take up your rebuttal time, but your argument has confused me on something i thought i understood. e thought the reason you've argued this case the way you have, trying to convince us to draw a sharp distinction between right and remedy is because you believe north carolina has the right you should state law to devise its own version of the exclusionary rule. if that's not your argument, then i'm really puzzled by what you're doing. >> functionally, that's the way things work in north carolina, justice alito. i think the only thing that maybe i need to make more clear is that the reason why it works that way in north carolina is because the state has held that violations of our state constitution cannot be subject

to a good faith -- >> the state constitution is irrelevant because you're arguing about whether there can be mistake of law in determining whether a search is reasonable under the fourth amendment to the constitution of the united states. whatever we hold on that, north carolina can do whatever it wants on the same question with respect to the state constitution. >> that's the next thing i was going to say. in theory you're right, justice alito, but what north carolina has said is we construe to be protermin proterminus. functionally in the state of north carolina where you are is that fourth amendment questions run parallel to state substantive constitutional questions. and if there's a violation, you suppress. >> mr. fisher, suppose this were a federal case and we had available to us and had all been briefed two alternative holdings. and one holding was this is not a violation of fourth amendment

law in the first instance and the other holding was this is a violation of fourth amendment law but the exclusionary rule operates and so the -- the good faith exception of the exclusionary rule operates and so the evidence comes in. is there any difference between those two holdings? >> i think the difference between those two holdings if the court remanded may well play out differently in north carolina. >> no, no, no. i mean if it were a federal case -- >> i'm sorry, i missed that. if it were a federal case, it would be functionally the same holding. >> yes, please. >> but there would be important reasons nonetheless. even though that would be a functionally identical holding, there would be functional identical. in one reason i've opened with and have tried to say a couple times is that the government should be presumed to know the law. it would undercut public confidence in law enforcement and the common law rule upon

which the criminal law is built to say that government doesn't have to be -- >> you say that, but some people say the existence of a rule remedy gap undermines public confidence in the law. so why should we take that argument any more serious lly tn the rule remedy gap argument? >> because people have argued that you shouldn't suspend remedy and the court has rejected and said, no, as judge wilkinson piece that i cited in the brief, there's an important reason to announce the right even if you're not going to give a remedy. now, there are practical reasons for this as well. even in the court's good faith jurisprudence, the court has given leeway to officers only to the extend the officer are relying on a clear directive by a third party like a legislature or a court. this is very different. this is like the johnson case from 1982 where the court held if the officer acts on his own view of a, quote, unruled law,

we suppress. even if i have to argue this case -- >> -- a reasonable interpretation of state law? >> i would dispute if you were asking in the chevron sense that the statute was ambiguous that it could be read this way. but i don't think it should be viewed as a reasonable mistake under the good faith doctrine. because the good faith doctrine deals with directives from third parties. johnson i was citing to you -- >> i don't need to ask this in the context of any other body of the court's case law. just in the common sense understanding of the term. was it reasonable if a even an attorney sat down and read the relevant north carolina statutes, do you think it would be reasonable for that attorney to conclude that you have to have two functioning bright lights a -- brake lights and not just one? >> i would concede that could be

reasonable, but there's a legal way of asking what a reasonable and what is not, justice alito. let me say two things about that. one is the court has never taken into account ambiguity or the possibility for error in asking whether or not a governmental officer gets the law right. and you have to define the concept of reasonable. even if you look at the facts of this case and think this mistake was reasonable, the other side hasn't given a definition of a reasonable mistake of law. and the solicitor general uses language to say a foothold in the statutory text. i'm not sure what definition would apply here, but one thing i do know from the court's qualified immunity and jurisprudence you have to define that concept. the definitions that exist in the law right now are very, very broad. i think that goes to the practical reason that i was going to describe to the court why you shouldn't hold that the fourth amendment is satisfied

here. because if you say that anything that's reasonable as defined in other cases susceptible to debate, you expand police officer to direct traffic stops. officers have enormous discretion by the nature of the traffic laws and -- >> mr. fisher, let me try my problem one last time before your time. you assert that we should not decide the remedy discussion because it hasn't been argued. but wasn't it your responsibility to argue it? you're asking us to set aside a judgment of the north carolina court. that judgment can be set aside only if number one, the fourth amendment was not violated. or number two, it was violated, but the remedy does not have to be remedy of exclusions. it seems to me it's your burden to establish not just that the

fourth amendment was violated but also that exclusion was necessary under the constitution. and it is no answer to say well, that hasn't been argued. you haven't argued it. that's the problem. >> if i need to argue it, i would refer you to the part three arguments in our opening brief which explain why even if you move good faith into the right -- and those would be my arguments, justice scalia. the only other case that comes to mind is the court's iolta case several years ago where the court divided that federal law question into two pieces. when the lower court had only addressed the first piece of the case, the court reversed on that first piece of the case and sent it back down. so i think what i'm asking you for isn't terribly different. >> send it back down for that court to decide the other piece. but this court will not decide the other piece. as you acknowledge. >> if a state makes that choice that it's going to give a more favorable remedy, then federalism should respect that choice, justice scalia.

i'd like to reserve the rest of my time. >> thank you, mr. fisher. mr. montgomery. >> mr. chief justice and may it please the court, the fourth amendment prohibits unreasonable searches and seizures but it does not require that police officers be perfect. because the touch stone of the fourth amendment is reasonableness, all that is required is that a police officer have a reasonable view of the facts and apply those facts to a reasonable understanding of the law. >> will we ever get an understanding, the right understanding of the law? meaning as i read the north carolina supreme court decision, it still hasn't told me whether it's one or two brake lights. and the next police officer who wants to stop someone won't know that either. now, he may be bound by the appellate court decision, but

that won't help clarify the state of the law. isn't what you're doing going to leave criminal law uncarelear? it's one thing to say you don't want to subject officers to civil liability. it's another to say you want to leave the law unclear in a criminal prosecution. >> well, your honor, in north carolina controlling precedent does come from the intermediate court of appeals. that's not to say our supreme court might not reach a different decision some day. but for now police officers would be bound by what the north carolina court of appeals decided. so the law has been decided. an officer who goes out and makes a stop tomorrow because one brake light is out would be acting unreasonably under that decision. so it doesn't leave criminal law uncertain.

>> well, it will for the appellate decision if it's now taking your view that it can just find out whether the reading, the officer's reading of the law is reasonable. it basically means any open question police officers will rule in favor of their right to search. >> it depends on whether the question is an open question and whether that interpretation by the officer is reasonable. it certainly may be an unreasonable interpretation. >> define what would make it unreasonable. >> well, it would be unreasonable if there was plain language of the statute that no one could reach a different interpretation about at all if it was plain or if there was a definite decision by an appellate court, it would be unreasonable for the officer to interpret it in his own way. and the whole standard would be a reasonable person standard. would a reasonable person be able to take this view of the statute? >> that's a very broad

definition of reasonable. i understand the idea that when 99 people out of a hundred think you have to have two brake lights like you do everywhere else in the country that it's reasonable for the police officer to think that. but it sounds to me like you're adopting the same standard that we apply in qualified immunity which gives the officers quite broad scope. and that's troubling. >> it's not the same as qualified immunity. qualified immunity protects the plainly incompetent. we're not saying that is the standard here. >> no, i think it doesn't protect the -- >> i'm sorry. it doesn't protect the -- >> i think the chief justice is asking you to describe a case for us where the officer would receive qualified immunity but it would not count as reasonable for these purposes. >> one of the things that this court has said in wilson v. lane is that this court and courts can look beyond just the

officer's interpretation. like this it could look to other matters. and yet he may still have qualified immunity. for example, he was told by a judge or by the attorney general or by someone that this was correct. that this is a complete misunderstanding of the statute. it would mean that officer is still protected by qualified immunity but for fourth amendment purposes that would not be a reasonable interpretation of the statute. >> you would not give a pass. let's say the case is flipped here and the most reasonable reading of the statute is that you only need one brake light. and so someone's driving around with one brake light, you pull him over, he's going to say i reasonably thought i only needed one. and the court comes out and says i needed two. the ignorance of law would not

save him, would it? >> no, it would not. but the flip side of that is an officer's belief that you needed all of your brake lights and that is not actually the law does not mean that that person is guilty. in other words, in this instance, this driver -- excuse me. the defendant here or the driver actually could not be held liable it's not the fact that an officer thinks reasonably that the law is something. that doesn't make it the law. just like if a citizen does not think that's the law. that does not mean he can escape liability. >> there is a law, however -- i'm sorry. the police officer wasn't stopping him because of a brake light. the police officer was involved and admitted this was a pretext. a lawful pretext. so he wasn't there just to tell him. if he had just stopped them and

said fix your brake light and drove away. there'd never be a lawsuit, correct? >> that's correct. >> so how many citizens have been stopped for one brake light who are asked to have their car searched? and is that something that we as a society should be encouraging? >> well, wholly innocent people are stopped quite often because of states of fact, for instance. that's part of the whole -- how terri works and those type of brief stops. there turns out times that citizens have not committed any kind of offense and yet they are stopped. this is just another example of that in which an officer acted reasonably just as with a reasonable mistake of fact. and it turned out that this was not actually a violation. >> i'd like to focus again on your definition of

reasonableness. let's say you have two court of appeals decisions. one says you need two brake lights. the other says you need one. is it reasonable for the officer to pull somebody over when one of their two brake lights is burned out? >> if you have conflicting rulings from the court of appeals, it would be difficult for the officer to decide which he thought was the better rule. if there were two different decisions which is not supposed to happen in our system. if it did happen, it would be reasonable for them to rely on either one of those. >> mr. montgomery, i take it that one of mr. fisher's arguments, maybe his primary argument is that this just looks like a remedies question. it duss not look like a rights question. it focuses on the culpability of the officer in the way we do when we think about immunity or when we think about the exclusionary rule. so why isn't that exactly right?

to the extent that this conviction ought to be upheld, it ought to be upheld on remedies reasons rather than rights reasons to fit in with our basic understanding of what remedies and rights do and do differently in our law. >> certainly this court looks at different things when it looks at the right versus the remedy. reasonableness is important in the right stage that may be considered and also the c culpability whether he was disregarding the law, those types of things. this court has addressed mistakes of law both in the rights and the remedy stage. and so it would be important to address it in the rights stage. here in this particular case. because then we don't get into the source of things that would be necessary in the remedies stage. >> what about in the north

carolina court of appeals. says north carolina has no good faith exception. and so all that this decision does is it allows the police to get around the absence of a good faith exception. wasn't that position of the desced dissenter the support of law. is the functional equivalent of a good faith exception. >> that was one of the things that they said. but again, this gets back to reasonableness as the standard for the fourth amendment. what this court has said important at that stage is whether an officer is acting reasonably. there are other considerations that take place at the remedy stage. so the state was asking for nothing more than simply whether this violated the fourth

amendment. and not about remedy. >> counsel, maybe you have all the answers i was asking of mr. fisher. and i guess the answer is you haven't argued that point. you did not assert in your brief and you haven't asserted it in your oral argument thus far anyway that even if it did constitute a violation of the fourth amendment, the remedy did not have to be exclusion of the evidence. and that remedy is indeed subject to reasonable mistake of law. and therefore the decision has to be affirmed. but you didn't make that argument. you want to put all your eggs in the basket of whether it's a

violation of fourth amendment. am i right about that? >> that's correct, your honor. >> i'm sorry. >> we did not make that in the court alone. and there's no good faith exception. if a defendant had only raised a fourth amendment question in our courts, the good faith exception would still be available if that defendant did not make a claim under the state constitution. >> well, i'm not too sure it makes good kcredential sense to allow the north carolina supreme court to put to us which is basically an abstract question. justice scalia indicates part of the fourth amendment is the good faith exception. it bears unreasonableness.

>> that's correct. and this court has in cases like rodriguez dealt with mistakable law just in the rights stage like the remedy stage. and one of the things that is different about this that is different from kroll and davis is that we're not talking about -- >> excuse me. that just doesn't wash. yeah, in other cases we just decide they're right and don't have to decide the remedy, but this is a case in which unless the remedy is exclusion, there's no basis to set aside the judgment of the north carolina supreme court. unless the remedy is exclusion. it seems to me that's part of the case to reverse. if we can't say that, we have no business reversing it.

>> that has not been argued here alone. the difference between these cases is that this involves a mistake of law as to a associative statute. rather than a mistake of law other than the fourth amendment itself. the difference in that is that a reasonable violation of the fourth amendment is still a violation of the fourth amendment. if there's a statute that gives an officer the opportunity to make a seizure on less than what is required by the constitution, less than probable cause or less than reasonable suspicion, even if the officer is reasonable, that is still fourth amendment violation which is why this court would have to go to the remedy portion to decide whether the exclusionary rule applied. in this instance, this case it was a mistake as to a substantive statute that was used by the officer as part of the facts and circumstances of this case.

as part of the totality of the circumstances of this case, the officer considered what he thought was the correct law. >> why should you draw the line between if he gets the fourth amendment wrong, the fourth amendment is violated. but if he gets the statute wrong, then the fourth amendment is not violated. because the because the officer needs to act reasonably. and the fact he gets the statute wrong does not mean he acted unreasonably. that would be proper to consider as this court has. in the de filipo case the court decided there was a situation in which a statute, a substantive

statute was found unconstitutional yet this court found there was probable cause in that case for the officer to make an arrest based upon that statute. so that was one case in which this court looked at it at the right stage as a mistake of law rather than at the remedy stage. >> do you think if de filipo came up again today with all the cases that have been decided since then that we would decide it the same way? or do you think we would conceptualize it now as a remedies question? >> i think the court would decide it the same way. and this court in arizona v. evans said that if the case is decided even before the good faith exception are still viable in terms of the fourth amendment. >> what kind of mistake of law did the police officer make in de filipo?

the law said exactly what he thought it said. >> that's correct. >> why do you classify this as a mistake of law question? >> i believe -- >> we said it was presumptively valid and he acted according to the statute. you don't ask police officers to ignore the law. >> that is correct that it's different from this case -- >> no, no. this wasn't following the law presumably according to the appellate division. >> that's right. the de filipo case is important because you had someone who was acting wholly innocently. he was not committing an offense at all. as in this case you had someone who was acting wholly innocently and was not committing a violation of the law. and so in de filipo, there still was probable cause despite mistake of law. and that's all that we're saying. >> isn't there another difference between de filipo and

this case? the court in de filipo talks about how there's a presumption of functionality for any statute and we don't want officers to go around questioning the constitutionality of statutes. but here that's not the case. here there's a statute and an officer is not supposed to read it as broadly as possible. and supposed to read it fairly. so there's no presumption that goes into effect. and there's no way in which we could say the same thing about de filipo is we don't want officers to inquire into this area. >> it is different, but we do want officers to enforce the law. we don't want them to just sit back and -- >> we want them to enforce the law fairly and as written and not to push every statute to its, you know, the furthest it could go without being found utterly unreasonable.

>> that's correct, your honor. but we do want them to act reasonably and still enforce the law, not turn a blind eye to what may be a violation. >> how does the statute read here? what are the exact words of the statute? >> the statute has two parts. it has a subsection "d." >> where do we find it? >> this would be in the appendix to the respondent's brief. appendix pages one three five has all of the relevant portions of the statute. subsection "d" involves rear lamps. and says every motor vehicle shall have all regionally equipped lamps in good working order. that's the relevant portion of subsection "d." subsection "g" which is on page three of the appendix says no

person shall sell or operate on the highways of the state any motor vehicle manufactured after december 31st, 1955, unless it shall be equipped with a stop lamp on the backside. when it said a stop lamp, that meant that only one was required. >> that seems to be what it says. >> the confusion comes in, justice scalia, in the last sentence of subsection "g" which says the stop lamp may be incorporated into a unit with one or more other rear lamps. where the confusion comes in is that sentence would seem to imply that the stop lamp is a rear lamp. that it can be incorporated into a unit with one or more other rear lamps. and if you go back to subsection "d," that's the section that says that all originally equipped rear lamps must be in good working order.

so there's some conflict in -- >> that applies to all real lamps. the stop lamp and all other lamps. >> that's correct. >> so it has to be plural. >> my time is up. >> thank you. >> thank you, counsel. >> mr. chief justice and may it please the court, since the founding, the probable cause standard has allowed police officers to make stops when there are reasonable grounds to believe that a person committed a crime even if the officer later turns out to have been mistaken about either the facts or the law. and as justice kennedy observed at the start of this argument, given this court's case

organized there can be a reasonable mistake of law, an officer who makes a reasonable mistake of law may have a reasonable grounds to believe that a person committed a crime. if i can go to a question that justice kagan asked about why this is more appropriately addressed, we think there are three main reasons. the first has to do with history. since the founding, this court has treated the probable cause standard as allowing for reasonable mistakes of law. >> are all the cases you cite includi including riddle all in a custom statute that didn't permit customs officers to suffer damages. for purposes of an error of law, correct? >> that's correct. the reason -- >> none of those cases involved a violation of a fourth amendment. >> that's correct. the reason those cases are relevant here is because those cases are interpretations of the probable cause standard. >> how is that different in

terms of its analysis, those cases, from what we've ultimately applied as a qualified immunity standard with respect to civil damages today? so don't they follow exactly the same reasoning? >> i don't think so, your honor. those cases, the probable cause reasoning that is followed in those cases is what the court has done at the merit stage of the fourth amendment analysis. so this court has routinely cited under those customs statutes as a meaning of the probable cause standard and illuminating -- >> so you disagree with the justice when he looked at those and made the point i just made. you think he was wrong. >> no. there's no doubt in the case the questions the court is asking are are those officers liable. the way to determine that is whether they had probable cause. and probable cause is the constitutional standard. that's why this court has relied on those cases in --

>> can i ask you a question? assume for the sake of argument i agree with you that a reasonable mistake of law is an one exceededly rare, two, objective, it has to be what a reasonable lawyer would think that the policeman was right on the law and only after serious difficulty in construing the law does it turn out that he's wrong. are you concerned with that or some other sin? >> i agree with those -- >> if you agree with those, then what about this case? after all, it says a stoplight. what's the difficulty of construing that to mean a

stoplight. >> so we think the north carolina supreme court were right that an officer would reasonably require the statute to require -- >> only after a careful scrutiny and serious difficulty in construing the law does it turn out that the officer was wrong. what's the difficulty? it's a stoplight. >> here the difficulty is in the other provision which requires all originally equipped rear lamps to be working. >> that includes the stoplight and any other lights, okay? the stoplight, the turn lights, the backup lights. so you had to use the lawyer ral. >> it means that if a car is equipped with the original stoplights, when one of them, one of the originally equipped rear lamp is working and that's

why the other courts that were considering this thought that this was anything other than a serious contemplation of the -- >> is it reasonable for the officer to say i'm going to pick this one and follow that? >> if the officer is in a just where the court of appeals has decided the question, we think the officer is bound by that decision of the court of appeals. but if the officer is in a jurisdiction where it's not decided, we don't view the fact that one court has decided it in one way as dispositive. >> i forgot one thing that's obvious. we're not talking about a difficulty construing the fourth amendment itself. >> that's right. >> we're talking only about a difficulty in construing a criminal statute, where in fact the reason for the stop or seizure is based on a violation of criminal law. >> that's right. >> i think the probable cause

standard allows for an officer to act when he has reasonable grounds -- >> how is your standard of -- >> we think that an officer, in order to have reasonable grounds for a stop needs to be able to point to something in the statute, whereas the qualified immunity standard seems to require that it's a precedent that forecloses what the officer does in order to protect everybody except for those who are clearly incompetent. >> one odd thing that's in your brief that i didn't follow, we said, the importance of holding the way he recommends is so that you can get this question solved. tee up the question, what is the rule, one night or two nights? but yet in this case, it was consent. the evidence that came in, had nothing at all to do with a traffic violation, so we wouldn't need to -- the court

wouldn't need to be traffic violations, it was consent, i think the north carolina intermediate appellate court thinks there was legitimate concept, there was consent in this evidence, and we never have to deal with what the traffic regulation was. >> that's correct, your honor. and this question comes up in two contexts, sometimes it will be litigated in the compression context, and sometimes lit -- because the officer actually issues a citation, and we're concerned expressing that issue of the brief, if the court takes the position, that whatever an officer is wrong about the law, he's violated the fourth amendment. it's going to deter officers where -- >> do you agree that if there is an illegal stop, that this consent is the fruit of the poison tree? >> we think that will be a difficult question, we don't necessarily agree with that, this court has said, it's not simply a but for test, but even if the stop was a but for

clause, it doesn't necessarily mean that the evidence was through the poisonous tree, but the question wasn't argued and it wasn't briefed here. >> you started your argument and you were going to give us three reasons why this should be a rights question rather than a remedies question, and you said history, which frankly, i think your history probably doesn't mean what you think it says. so i want to know what number two and number three are. >> this is the simplest standard, you simply ask courts to decide whether an officer can reasonably think that a person had committed a crime. and you don't separate whether it's a question of law or a question of fact and one in the rights section and one in the remedies section. and we don't think there's a reason to treat the facts -- he can just as reasonably be confused as to what the laws are

under these statutes and what the facts are. it makes sense to create reasonable mistakes of law in the same way. the court has no further questions, thank you. >> thank you, counsel. mr. fisher, you have three minutes left. >> thank you, i would like to make four points if i could. to start with the administerability of the question, what would reasonableness mean, i think your hap threat kl of two differ -- i think under the analysis that i just described, that it would violate the fourth amendment in half the state, and not until other half of the state, because each would be binding in it's own component of the state. and that shows why in rand and many other cases the court has rejected that analysis and kept it only to the remedy stage. >> in this case, didn't the centers in the north carolina supreme court say that the interpretation azodopted by the

court of appeals was surprising. all we have to say on reasonableness, if it's surprising, if the correct interpretation is surprising, then the contrary interpretation is reasonable. do we have to go further than that? >> i think you do, because you have to give a little more teeth to it. what the solicitor general says is that a police officer could argue from a foothold in a statute that all license plates are illegal. they injected that into their code, it's one of innewspaperable-arguments that the officer could make. >> one court one way, one court the other way, the officer loses because it has to be unusual, it has to be -- you heard what -- >> i think the problem with that is that it's the core

presumption that the law has to -- i think about the ignorance cannon, the state's response is, if somebody is reasonably mistaken about the law, we would convict him. and the reason why is because we would assume he knew the law. he would assume that somebody at the court of appeals splits, and this court provided 5-4, because they assumed they needed the law when i acted. and all we're asking for is the exact same assumption to ably to the police officer. and with respect to the inspector general, the cases they describe don't help them, they're only remedy cases, and even when the court has cited those cases, they're all in the context where the court didn't distinguish rights from rem ce s remedies. the controlling rule would be the common law rule, we said with no disagreement from the other side, the demcommon law.

if i could just say one thing, with all due respect, there's nothing unusual about a party litigating a case up the court, they can choose the arguments they choose to raise. and when we got a judgment in our favor from the north carolina court of appeals, it was up to the state at that point, to choose what arguments it wanted to pursue further in this case. so just like a state may -- a party may ride the first amendment instead of the second, or a rights question instead of remedy, we think that's all that's happened here. >> all right,. here on cspan 3, we complement coverage by showing you the most relevant public hearings and public affairs events. and on the weekend, cspan 3 is

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