Policing and Public Transportation (2022)

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TCRP LRD 58 15 or was a “transit recidivist” because of a prior conviction of a transit-related offense.153 As the officers were arresting him, Var- gas dropped a marijuana cigarette. Because the operative language in the Fourth Amendment and the New York Constitution, Article I, Section 12, is identi- cal, the two provisions generally confer similar rights;154 thus, under New York law, the officers had probable cause to arrest Vargas. The court also rejected Vargas’s argument that the of- ficers were not justified in detaining him while conducting a record check. B. An Arrest Compared to an “Investigative Stop” Unless an exception applies, warrantless searches and sei- zures are per se unreasonable and violate the Fourth Amend- ment.155 An exception to the foregoing rule is an “investigative stop” permitted by the Supreme Court’s decision in Terry v. Ohio.156 However, for a valid Terry stop, a police officer must have a “reasonable and articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.”157 In State v. Pigger,158 the Washington Court of Appeals held that the stop in question was not a valid stop under the Terry precedent. Deputy Nix responded to a dispatch about a man who “had refused to show identification to fare enforcement of- ficers when confronted about a possible fare evasion.”159 Deputy Nix detained Pigger by grabbing his arm. The state argued that Deputy Nix conducted a valid Terry stop consistent with the Supreme Court’s decision in Terry.160 However, Deputy Nix did not have a basis on which to believe that Pigger had previously evaded paying a fare.161 A “mere hunch” is not sufficient for a lawful Terry stop.162 In contrast to the Pigger case, in GeorgiaCarry.com, Inc. v. MARTA,163 a federal district court in Georgia held that a MARTA police officer (Nicholas) responded properly when he saw an individual (Raissi) take a handgun in a holster, conceal it, and walk toward a MARTA station.164 After Raissi purchased his ticket, Officer Nicholas stopped Raissi. After a background check, which was clear, Officer Nicholas returned Raissi’s iden- tification and firearms license but did not immediately return 153 Vargas, 56 N.Y.S.3d at 440. 154 Id. at 445 (citation omitted). 155 State v. Pigger, 2013 Wash. App. LEXIS 2705, at *1, 5 ¶ 4 (Wash. Ct. App. 2013) (footnote omitted). 156 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) (holding that the “Stop and Frisk” tactics that were used were reasonable under the circumstances). 157 Pigger, 2013 Wash. App. LEXIS 2705, at *5 ¶ 9 (footnote omitted). 158 2013 Wash. App. LEXIS 2705, at *1 (Wash. Ct. App. 2013). 159 Id. at *1 ¶ 1. 160 Id. 161 Id. at *6 ¶ 11. 162 Id. at *2 ¶ 2. 163 2009 U.S. Dist. LEXIS 117989, at *1 (N.D. Ga.2009). 164 The court described the co-plaintiff GeorgiaCarry.com, Inc. as a public advocacy group. whether the officer’s mistake was objectively reasonable under the circumstances.146 PART II – Liability under § 1983 for Alleged False Arrest or False Imprisonment, Unlawful Searches and Seizures, Use of Excessive Force, Malicious Prosecution or Abuse of Process, Invasion of Privacy, or Failure of an Officer to Intervene to Prevent Another Officer’s Civil Rights Violations V. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR FALSE ARREST OR FALSE IMPRISONMENT A. Required Elements to Prove False Arrest or False Imprisonment As the court stated in Vargas v. City of New York,147 “‘[t]he law is settled that an arrest occurs when an individual is not at liberty to walk away.’”148 A plaintiff bringing a § 1983 action for false arrest must prove that: (a) the defendant intended to confine him; (b) the plaintiff was conscious of the confinement; (c) the plaintiff did not consent to the confinement; and (d) the confinement was not otherwise privileged.149 The elements of a § 1983 claim for false arrest and for false imprisonment are sub- stantially the same as “‘the central issue is whether the arresting officer was justified in ordering the arrest….’”150 If a police officer instigates an arrest based on information that the officer knows to be false, the officer may be held liable under § 1983 for false arrest.151 In a § 1983 action, when there are disputed issues of fact regarding an arrest and whether there was probable cause for the arrest, a jury has to decide the dis- puted issues.152 In Vargas, two officers (Buith and Singh) stopped the plain- tiff after they observed Vargas pass between two cars on a mov- ing subway train in violation of 21 N.Y. CRR 1050.9. Buith determined that Vargas either was subject to an open warrant 146 Professor Henning’s article posits that, after the Court’s decision in Heien, it is not clear “what constitutes an objectively reasonable mis- take of law for purposes of the Fourth Amendment and how that understanding should relate to any conclusion with respect to the good faith exception to the exclusionary rule.” Id. at 302 (footnote omitted) (emphasis supplied). The article argues, however, that courts are “cor- rectly not considering the good faith exception once they conclude that there was an unreasonable mistake of law by the police. In short, an unreasonable mistake of law renders the good faith exception not appli- cable.” Id. at 273-274 (emphasis supplied). 147 56 N.Y.S.3d 438, 443 (S. Ct., N.Y. Cnty. 2017) (holding that offi- cers had probable cause) (citations omitted), aff’d, 2019 N.Y. App. Div. LEXIS 380, at *1 (N.Y. App. Div., 1st Dep’t. 2019), leave to appeal denied, 2020 N.Y. LEXIS 730 (N.Y., Mar. 31, 2020). 148 Id. 443 (citations omitted). 149 Moroughan, 514 F. Supp.3d at 516 (citation omitted). 150 Cutchin, 369 F. Supp.3d at 120 (citation omitted). 151 Moroughan, 514 F. Supp.3d at 517 (citations omitted). 152 See id. at 543, FN 31.

14 TCRP LRD 58 gave the officer reasonable suspicion to stop the car, the trial court denied Heien’s motion to suppress the evidence. After the trial court’s ruling, Heien pleaded guilty but reserved the right to appeal the trial court’s ruling on the suppression motion. The North Carolina Court of Appeals reversed the trial court’s ruling, holding that under the North Carolina statute “driving with only one working brake light was not actually a violation of North Carolina law.”135 Thus, “[t]he justification for the stop was . . . ‘objectively unreasonable,’ and the stop violated the Fourth Amendment.”136 The Supreme Court of North Carolina reversed the appeals court and remanded the case, because “Sergeant Darisse could have reasonably, even if mistakenly, read the vehicle code to re- quire that both brake lights be in good working order.”137 “An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. ... [W]hen an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment.”138 In an opinion by Chief Justice Roberts, the Supreme Court affirmed the judgment of the Supreme Court of North Carolina. The Court held that, because “the officer’s mistake about the brake-light law was reasonable, . . . the stop . . . was lawful under the Fourth Amendment.”139 An officer’s “reasonable sus- picion can rest on a mistaken understanding of the scope of a legal prohibition.”140 Justice Roberts wrote that, just as “searches and seizures based on mistakes of fact can be reasonable,” so can searches and seizures based on mistakes of law be reason- able.141 Justice Roberts relied on precedents “dating back two centuries [that] support treating legal and factual errors alike in this context.”142 The Court held in Heien that “the mistake of law relate[d] to the antecedent question of whether it was reasonable for an officer to suspect that the defendant’s conduct was illegal. If so, there was no violation of the Fourth Amendment in the first place.”143 “[B]ecause the mistake of law was reasonable, there was reasonable suspicion justifying the stop.”144 Although the Court in Heien “clearly expanded the leeway offered to police officers under the Fourth Amendment,” cases, of course, differ on what is meant by the term objectively reasonable.145 Finally, in light of the Court’s decisions in Heien and in Taylor, supra, whether an officer’s mistake of fact or law is a constitutional violation that is redressable by § 1983 depends on 135 Heien, 574 U.S. at 58, 135 S. Ct. at 535, 190 L. Ed.2d at 481. 136 Id., 574 U.S. at 59, 135 S. Ct. at 535, 190 L. Ed.2d at 481 (citation omitted). 137 Id. 138 Id. (citation omitted). 139 Id. 574 U.S. at 57, 135 S. Ct. at 534, 190 L. Ed.2d at 480. 140 Id., 574 U.S. at 60, 135 S. Ct. at 536, 190 L. Ed.2d at 482. 141 Id., 574 U.S. at 61, 135 S. Ct. at 536, 190 L. Ed.2d at 482. 142 Id., 574 U.S. at 62, 135 S. Ct. at 536-537, 190 L. Ed.2d at 483. 143 Id., 574 U.S. at 66, 135 S. Ct. at 539, 190 L. Ed.2d at 485. 144 Id., 574 U.S. at 68, 135 S. Ct. at 540, 190 L. Ed.2d at 487. 145 Henning, supra note 127, at 326. IV. WHETHER A POLICE OFFICER’S MISTAKE OF FACT OR LAW IS A VIOLATION OF THE FOURTH AMENDMENT The Supreme Court has answered the question of whether a police officer’s search or seizure of a person based on the offi- cer’s reasonable mistake of fact or law is a violation of the Fourth Amendment. As one legal scholar concludes, the “Court has recognized that police mistakes are inevitable and, to varying degrees, tolerated.”127 As noted in Section III, supra, a federal district court held in 2014 that “[q]ualified immunity shields an official even if her conduct resulted from ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’”128 When an officer makes a mistake of fact, the Supreme Court has held that it is necessary to assess “the reasonableness of the officer’s conduct in light of the information available to the of- ficer” at the time of the search or seizure.129 Thus, “the Fourth Amendment is not violated when information becomes avail- able after the fact that shows that the officer was mistaken about the facts.”130 “The reasonableness of the officer’s conduct, viewed from an objective standard, permits the allowance of mistakes.”131 However, in several cases, the Court has held that a police officer complied with the Fourth Amendment’s rea- sonableness requirement even when the officer wrongly under- stood what the facts were.132 As for a mistake of law, in 2014, in Heien v. North Carolina,133 the Supreme Court held that a police officer may make an “ob- jectively reasonable mistake of substantive law” without violating the Fourth Amendment.134 In Heien, a traffic officer (Sergeant Darisse) had observed a motorist’s vehicle with an inoperative brake light. When the officer stopped the car, he became suspi- cious because of the driver’s and the passenger’s conduct and their inconsistent answers to his questions. The passenger in the car and its owner gave the officer, who was by then accompanied by another officer, permission to search the car. After the search uncovered a bag of cocaine, the officers arrested both men. The defendant Heien, who was charged with attempted traf- ficking of cocaine, moved to suppress the evidence on the basis that the arrest and search violated the Fourth Amendment. When Sergeant Darisse first observed the vehicle with an in- operative brake light, he erroneously concluded that the driver was violating North Carolina law. Because the faulty brake light 127 Karen McDonald Henning, “Reasonable” Police Mistakes: Fourth Amendment Claims and the “Good Faith” Exception after Heien, 90 St. John’s L. Rev. 271, 272 (2016) [hereinafter Henning]. 128 Brietkopf, 41 F. Supp.3d at 243-244 (citations omitted) (emphasis supplied). 129 Henning, supra note 127, at 276 (footnote omitted). 130 Id. (footnote omitted). 131 Id. at 277. 132 Id. 133 574 U.S. 54, 135 S. Ct. 530, 190 L. Ed.2d 475 (2014). 134 Henning, supra note 127, at 272 (footnote deleted) (emphasis supplied).