Tuesday, April 13, 2010

Ignorance of the Law - a Defense for Cops

So we all know that a person can (for the most part) be arrested for, charged with, and convicted under a law he didn't even know existed.  We've heard the unapologetic phrase since our first criminal law course in law school - "Ignorance of the law is no defense."  If we, as a society, accept this precept of criminal law as it relates to defendants, what then should we expect from our law enforcement officers?

To be more specific, should we expect cops to be knowledgeable of the law? Can we allow our police officers to make arrests or detain citizens for laws that do not exist or laws that have been repealed?  I should hope not! Unfortunately, however, as the 11th District Court of Appeals (Eastland) explained last week in State v. Clark:
There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.

Here's what happened.  At 3:20 AM near a residential area of Abilene, an officer observed a vehicle performing "an exhibition of acceleration."  You know, revving the engine, spinning the tires, but going nowhere - the sort of thing that makes a lot of racket.  The officer stopped the vehicle on account of the "exhibition of acceleration" and ultimately arrested the driver for DWI.

The driver moved to suppress the evidence of DWI by challenging the reasonableness of the stop under section 545.420 of the Texas Transportation Code.  This section  prohibits excessive exhibitions of acceleration, but only when the driver is engaged in a street race against another vehicle.  So, essentially, the cop got it wrong.  Finding that the officer erroneously "stopped the vehicle for exhibition of acceleration" and finding that the "vehicle was not in competition or racing any other vehicle," the trial judge suppressed the evidence.

On appeal, the State urged a new theory to justify the stop - Abilene Municipal Code Sectoin 18-153, which prohibits disturbances by a motor vehicle.  Although, from the record, the officer was completely unaware of this provision when he formed "reasonable suspicion" to execute the stop, why should that hinder the State?  After all, the ends justify the means, right?  Holding that "[t]here need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant," the 11th Court reversed the ruling of the trial court. 

The truly disturbing part of this case, aside from the reaffirmation that cops need not be informed of the law and that, in Texas, the ends justify the means, was the bait and switch that the appellate court pulled on the defendant.  After finding that the Abiliene Municipal Code section (of which the officer was unaware) justified the stop, the court refused to entertain a challenge by the defendant to the constiutionality of the section, stating:
He did not present this challenge to the constitutionality of Section 18-153 at the trial court level.  Because section 18-153 of the Abilene Municipal Code constitutes the objective basis for the stop of Clark, not the basis for his prosecution, his claim to its constitutionality was not preserved and may not be presented for the first time on appeal.
Seriously?  How could we expect him to present his challenge at the lower level when the municipal code section was not in issue? 

It's truly a scary notion that our law enforcement officers can simply stop us for virtually anything so long as our prosecutors can later justify the stop.  They say, "ignorance of the law is no defense."  That phrase has no application for cops.