It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law.
State v. Robertson
2023 – Ohio – 2746
Tenth District Appellate Court
Franklin County, Ohio
August 8, 2023
At the inception of the Covid 19 Pandemic the following occurred:
On Monday March 9, 2020, Governor Mike DeWine issued Executive Order 2020- 01(D) declaring a state of emergency to protect the citizens of Ohio from the “dangerous effects of COVID-19.” On March 27, 2020, the General Assembly passed H.B. 197, an uncodified law, to offer emergency relief to Ohioans during the COVID-19 pandemic. Relevant to the present case, H.B. 197 provides:
Except as provided in division (E) of this section, if a person is required by law to take action to maintain the validity of a license during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, but not beyond December 1, 2020, if the period of the emergency continues beyond that date, notwithstanding the date by which action with respect to that license is required to be taken in accordance with that law, the person shall take that action not later than the sooner of either ninety days after the date the emergency ends or December 1, 2020.
Except as provided in division (E) of this section, a license otherwise expiring pursuant to law during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, but not beyond December 1, 2020, if the period of the emergency continues beyond that date, notwithstanding the date on which the license expires in accordance with that law, remains valid until the earlier of either ninety days after the date the emergency ends or December 1, 2020, unless revoked, suspended, or otherwise subject to discipline or limitation under the applicable law for reasons other than delaying taking action to maintain the validity of the license in accordance with division (C)(1) of this section.
H.B. 197 Section 11(C)(1)-(2).Section 11(A)(1) defined, “[l]icense” to include “any license, permit, certificate, commission, charter, registration, card, or other similar authority that is issued or conferred by a state agency, a political subdivision of this state, or an official of a political subdivision of this state.”
Officer #1 has been a patrol officer … for over seven years. According to Officer #1, he is proficient in Ohio traffic law through his initial training with the Highway Patrol as well as ongoing training and self-study. Prior to the incident at issue in this case, Officer #1 would make traffic stops based on expired vehicle registrations “fairly often.”
Note: Officer #1 is identified by name and agency in the case, both have been redacted in this article.
Expired Tag Stop – Marijuana – Weapons Under Disability
On Tuesday August 11, 2020, Officer #1 was driving his patrol route, in a marked … police cruiser, when he first observed a vehicle [in his jurisdiction]. According to Officer #1, he randomly runs vehicle tags when “there is not much going on.” Officer #1 described the process of running tags as follows: “I have a computer in the cruiser with me and I just type in the plate number. It goes to the LEADS terminal which pops up with everybody’s information and will show basically all of the vitals for the BMV and any other information that people put in.” Officer #1 testified that when he ran the tag on Mr. Robertson’s vehicle, he concluded that Mr. Robertson’s vehicle registration was expired. When asked if LEADS provided the exact date of expiration or generally that the vehicle registration was expired, Officer #1 responded, “[I]t will show the exact date of vehicle expiration.” Believing that Mr. Robertson’s vehicle registration had expired, Officer #1 initiated a traffic stop. According to Officer #1, when he approached the window, he “saw the [Mr. Robertson] reach over the passenger seat, like extensively reach over,” and he could smell the odor of raw marijuana coming from the vehicle. After smelling the odor of marijuana, Officer #1 asked Mr. Robertson to exit the vehicle. Officer #1 searched the vehicle and discovered rounds of ammunition, marijuana, and a handgun.
House Bill 97
Officer #1 testified that he is familiar with H.B. 197 and that it concerns registration and licensing requirements. Officer #1 denied that, on or before August 11, 2020, he knew the implications of H.B. 197. Officer #1 stated that he was only given “limited” direction on H.B. 197 and, to his knowledge, he was not given any information regarding the change in protocol concerning licenses or vehicle registrations. The only information he was provided was a document from the BMV, marked as Exhibit A. According to Officer #1, he was provided the BMV memorandum around March 19, 2020. When asked if the document distinguishes “between license and vehicle registration?,” he responded, “No – – yes – – I think? I believe it would distinguish – – I don’t know.”Officer #1, “interpreted [the BMV memorandum] as the Highway Patrol will not issue tickets to drivers, and then furthermore it says, ‘recommended that other law enforcement agencies in Ohio do the same thing.’ ”(Officer #1 believed, based on the information provided, he was “still able to essentially stop for expired vehicle registration.”)
Cross Examination by Defense Counsel
On cross-examination, Officer #1 acknowledged an important part of his job is knowing the laws of the State of Ohio and that, pursuant to H.B. 197, there were no expired registrations. On re-direct examination, Officer #1 testified that he believed at the time of the stop that he was abiding by the law of the State of Ohio.
On August 18, 2020, Mr. Melvin Robertson was indicted on one count of having weapons while under disability in violation of O.R.C. §2923.13, a felony of the third degree. Mr. Robertson entered a not guilty plea on September 3, 2020.
Motion to Suppress
On August 7, 2021, Mr. Robertson filed a motion to suppress all evidence obtained in violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment to the United States Constitution and by the Constitution of the State of Ohio, Article I, Section 14. Specifically, Mr. Robertson argued that law enforcement had no cause to initiate a traffic stop of his vehicle as, per Am.Sub.H.B. No. 197 (“H.B. 197”), which temporarily suspended the expiration of vehicle registrations, his vehicle registration was not expired at the time of the stop.
Mistake of Law?
On August 24, 2021, the state filed a memorandum in opposition arguing that Officer #1 made a reasonable mistake of law and the good-faith exception should preclude the suppression of any evidence derived from the initial stop. The trial court held a suppression hearing on October 12, 2021. Officer #1 was the sole witness to provide testimony in this matter. The following evidence was adduced at the hearing.
Trial Court Denies Motion to Suppress
On March 4, 2022, the trial court issued findings of fact and conclusions of law denying Mr. Robertson’s motion to suppress. The trial court provided no discussion of the language of H.B. 197, or whether it determined the uncodified provision was ambiguous. Instead, the trial court began its analysis concluding that Officer #1 was not “properly informed about [H.B.] 197, as the information given was unclear as to how agencies and officers should respond.” The trial court wrote that the BMV memorandum was sent before H.B. 197 went into effect and “stated that the Ohio State Highway Patrol would not issue tickets for expired licenses, it did not say anything about other law enforcement agencies.” Despite concluding that Officer #1 made a mistake of law, the trial court found the mistake was reasonable as H.B. 197 was new and the language at issue was in an uncodified portion of the law. “These facts and circumstances assign no fault to the officer.” Finally, the trial court stated that the LEADS printout only tells officers the date of expiration but not the reason for the expiration. “Thus, the LEADS printout at the very least gave Officer #1 reasonable suspicion to pull the (sic.) Mr. Robertson over to investigate the reason his registration was expired.”
No Contest Plea
On March 21, 2022, Mr. Robertson entered a plea of “no contest” to having weapons under disability in violation of R.C. 2923.13, a felony of the third degree. The trial court sentenced Mr. Robertson to two years of community control.
Mr. Robertson filed a timely appeal.
Reasonable Mistakes by Law Enforcement
The United States Supreme Court has recognized—and accepted—that police officers will make mistakes. Beginning with Brinegar v. United States, 338 U.S. 160 (1949), the Supreme Court addressed the limitations of the probable cause standard writing that when “deal[ing] with probabilities,” police officers should have “fair leeway” in enforcing the law. The Brinegar court found there must be some room for mistakes of “reasonable and prudent men.” This principle evolved to permit, under certain circumstances, a law enforcement officer’s reasonable mistake of fact.
Heien v. North Carolina, 574 U.S. 54 (2014)
In 2014, the United States Supreme Court’s decision in Heien marked a significant shift in the mistake of law analysis. A brief review of the facts and decision is instructive.
In Heien, a North Carolina law enforcement officer observed a vehicle traveling on the highway. The officer, finding that the vehicle had one operational brake light, initiated a traffic stop. While issuing a warning ticket for the broken brake light, the police officer received consent to search the vehicle and discovered cocaine in a side compartment of a duffle bag located in the vehicle. Mr. Heien was arrested and charged with attempted trafficking of cocaine. Mr. Heien moved to suppress the evidence derived from the search contending that the initial traffic stop violated his Fourth Amendment rights. Mr. Heien argued the North Carolina statute, N.C.Gen.Stat. 20-129(g), only required a single stop lamp and therefore the justification for the stop was objectively unreasonable.
During the suppression hearing, the officer testified the statute required two working brake lights, and Mr. Heien’s faulty brake light gave him reasonable suspicion to initiate the stop. The trial court agreed with the officer and denied Mr. Heien’s motion to suppress. The North Carolina Court of Appeals reversed the trial court’s ruling finding the stop objectively unreasonable as N.C.Gen.Stat. 20-129(g) required only one stop lamp, which the vehicle had at the time of the stop. The Supreme Court of North Carolina took up the case. As a preliminary matter, the court found that because the state failed to seek a review of the appellate court’s interpretation of the vehicle code, it was assumed for the purposes of its decision that the faulty brake light was not a violation of the statute. Nonetheless, the court found the officer’s mistake of law was reasonable citing another provision of the statute, which provided “all originally equipped rear lamps” must be functional. The Supreme Court of North Carolina reversed the appellate court concluding that because the officer’s mistaken understanding of the vehicle code was reasonable, the initial traffic stop was valid.
In an 8-1 decision, the United States Supreme Court found the officer’s traffic stop did not violate the defendant’s Fourth Amendment rights as the officer’s mistake of law was objectively reasonable. While the word “ambiguous” was not used in the majority opinion, the court grappled with how to address the varying interpretations of N.C.Gen.Stat.Ann. 20-129. The Heien court even acknowledged that both the majority and the dissent in the Supreme Court of North Carolina concluded that there were multiple reasonable interpretations of the statute. The majority in Heien explained that while one provision of the statute suggested a “stop lamp” was a type of “rear lamp,” requiring only a single working brake light, another provision read, “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” The Heien court wrote, “[t]he use of ‘other’ suggests to the everyday reader of English that a ‘stop lamp’ is a type of ‘rear lamp.’ And another subsection of the same provision requires that vehicles ‘have all originally equipped rear lamps or the equivalent in good working order,’ §20- 129(d), arguably indicating that if a vehicle has multiple ‘stop lamp[s],’ all must be functional.” The Heien court ultimately concluded that “[W]hether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: The facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.” The court cautioned that “[T]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”
Accordingly, under the totality of the circumstances, even if the uncodified provision was ambiguous, Officer #1’ mistake of law was unreasonable as an objectively reasonable police officer would not have believed that Mr. Robertson’s conduct constituted a traffic violation as they would have known H.B. 197 created a moratorium on the expiration of vehicle registrations.
“It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law.”
It is our hope that the suppression of evidence in this case will result in appreciable deterrence of Fourth Amendment violations going forward. There will come a time sometime in the future when the General Assembly will have to enact an uncodified law to provide emergency relief to Ohioans. It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law. Here, suppression of the evidence derived from the initial traffic stop would “pay its way” by requiring law enforcement to make reasonable efforts to know the law they are duty bound to enforce.
Accordingly, Mr. Robertson’s second assignment of error is sustained.
Information for this article was obtained from State v. Robertson, 2023 – Ohio – 2746.
State v. Robertson, 2023 – Ohio – 2746 was issued by the Tenth District Appellate Court on August 8, 2023 and is binding in Franklin County, Ohio.
- Pandemic Law – At the inception of the pandemic in early 2020 there were a lot of societal changes never-before experienced by living Americans. This created increased substantial pressures on law enforcement. Governor Mike DeWine and the General Assembly passed a series of executive orders and temporary laws. A moratorium on renewing driver’s license and vehicle registrations were two. Officer #1 should not have stopped Mr. Robertson for expired tags which led to the suppression of the firearm.
- Should Officers Know the Law to Enforce It? On Monday December 15, 2014, the U.S. Supreme Court issued Heien v. North Carolina, 574 U.S. 54 (2014). In an eight to one decision the court held “It was thus objectively reasonable for an officer in Sergeant Darisse’s position to think that Heien’s faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop.”. Essentially the court held that a law enforcement officer does not need to know the law to enforce it. This Avant Garde decision creates opportunity for officers to claim negligence to enforce laws that do not exist or in this case to enforce a law that has been suspended. Law enforcement should always know what law they are enforcing before stopping citizens. The officer does not need to know the exact code section or be able to quote the law verbatim. However, understanding what behaviors are unlawful is part of a being a professional. This case was unique in as much as the governor temporarily suspended a run-of-the-mill traffic violation, so it is understandable but arguing that officers do not need to know the law under Heien was likely to fail.
- Stay Informed – I applaud you for reading this article and stay up to date on this website as you are adhering to the Tenth District’s Courts admonition “It is incumbent upon law enforcement, in turn, to make reasonable efforts to stay informed of changes in the law.”. Law enforcement is THE hardest job in America and my goal is to make it easier for you.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!