We’ve all heard of the rule of lenity — that is, the arguably abandoned idea that ambiguous criminal laws should be construed in favor of private defendants. The traditional rule of lenity is largely grounded in the idea that private citizens should be given notice of what the law does and does not proscribe. In recent years, however, the Supreme Court seems to have implemented a different kind of leniency. This new principle calls for leniency not toward private defendants, but rather toward police. Let’s call it the other rule of lenity.
The other rule of lenity is most visible in the Court’s recent attitude toward Fourth Amendment remedies. The standard for penetrating qualified immunity has been rigorously enforced and perhaps even heightened. The result is that it is much harder to obtain relief in civil lawsuits against police, even when the police acted unlawfully. The Court has likewise strengthened the “good faith” exception to the exclusionary rule, thereby insulating law-enforcement from a major potential consequence of illegal searches. Much as with the traditional rule, the other rule of lenity is concerned with giving adequate notice — not to private citizens trying to stay on the right side of the law, but rather to police exercising their investigative powers. There is an obvious tension here, for treating the police leniently can have severe consequences for defendants.
What are we to make of having a pro-suspect rule of lenity when it comes to interpreting criminal statutes at trial, and an analogous pro-officer rule when it comes to the scope of police investigation? Perhaps this situation is merely a reflection of the Court’s increasing sympathies with police and apathy toward defendants. That realpolitik answer would explain both the decline of traditional lenity and the rise of its counterpart. Alternatively, there may be good reasons to apply lenity differently in connection with investigation as opposed to trials. For instance, we might think it important to cast the investigative net widely in order to capture persons who, once detected, are indisputably engaged in unlawful and perhaps dangerous conduct. By contrast, it might make sense to err on the side of freedom when trying defendants whose actions might not have been criminal at all.
The tension between the two rules of lenity is about to become more acute. Last month, the Court granted cert in Heien v. North Carolina. To simplify somewhat, Hein involves a police officer who detained a driver based on a non-existent crime. That sounds obviously unconstitutional, but the officer’s error may have been reasonable given state-law ambiguities at the time of the stop. Heien seems to provide a very clean presentation of the disparity between the two lenity principles. When interpreting the specific criminal prohibition at issue in Heien, North Carolina courts were presumably obliged to apply the traditional rule of lenity. The question now is whether lenity switches to the other side of the “v.” when police have acted unlawfully in light of that very same criminal prohibition.
Re’s Judicata 
There is a constitutional basis for applying the rule of lenity when it involves a defendant’s conviction based on an ambiguous statute. Under the 5A and 14A the defendant can’t be deprived of liberty without a fair trial. The rule of lenity is a recognition that a conviction/sentence resting on an ambiguous statute isn’t “fair.”
But, there is no constitutional basis to apply the rule of lenity to the Heien scenario — involving the suppression of reliable, relevant evidence resulting from a good faith, reasonable, mistake of law.
As you know, the exclusionary rule is not in the text of the 4A. Rather, it was created by the Court. And, therefore, can be eliminated by the Court without violating the Constitution.
Simply stated, the rule of lenity does not (and should not) apply with equal force in these two very different (at least from a constitutional perspective) situations.
I have come to the sad conclusion that the court has been doing a poor job recently protecting people’s civil liberties. Whether it is the rubber stamping search warrants by local judges, through their near blanket approval of no knock raids, or the complete lack of oversight provided by the FISA court. The courts have not been a check on the powers of the executive branch whether it be at the local or national level.
Insightful post–I’ve thought about this. There’s something fundamentally wrong with holding officers civilly liable only where they have violated a “clearly established right” but holding citizens criminally liable for novel applications and extensions of the law by prosecutors and administrative agencies.
That’s because the twentieth century progressive shift views government through a collective lens. The group is more important than the individual; the individual and her rights only impede the progress of the group. Aside from having no basis in the Constitution and fundamental legal principles, this view also over-simplifies representative government and ignores all sorts of realities–e.g., agency costs.
I find the dissent persuasive:
The flaws in the majority’s opinion are perhaps most apparent in its single statement that “[p]olice officers should be entitled to interpret our motor vehicle laws reasonably when conducting routine traffic stops.” Separation of powers doctrine dictates otherwise: It is the legislature’s job to write the law and the judiciary’s job to interpret the law. The job of the police is to enforce the law as it has been written by the legislature and interpreted by the courts. Proper enforcement of the law requires accurate knowledge of the law; as the Eleventh Circuit cogently noted in United States v. Chanthasouxat, to decide otherwise is to endorse “the fundamental unfairness of holding citizens to the traditional rule that ignorance of the law is no excuse while allowing those entrusted to enforce the law to be ignorant of it.
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