Usually I am in trial court when Supreme Court oral arguments are held. Somehow, ordinarily with trial date continuances, court proceedings ending unexpectedly early, and matters scheduled for the afternoon (leaving me available for morning Supreme Court oral argument), I get a chance to observe at least one Supreme Court criminal law or civil liberties-related oral argument annually. I attend less for cerebral and entertainment purposes than the possibility that I one day may be arguing a case there, to become a better lawyer by witnessing some great advocates (not all are) sometimes after reviewing their written arguments (some writing very persuasively and well, and others less so), and to better understand and apply the lessons of litigation combat in the face of judges who demand good and honest preparation and performance and opponents who are as committed to winning as am I. Living and working within fifteen miles of the Supreme Court, I have little reason not to attend oral arguments at least once a year when my court schedule allows it.

Sometimes I meet fascinating and other interesting people in attendance at oral argument, including re-acquainting with some lawyers I already know; and sometimes I meet lawyers after they have argued. Rightly or not, I get priority seating in the front rows by being a Supreme Court bar member, which membership is generally available to all members in good standing for at least three years in a state bar.

This year’s Supreme Court oral argument schedule kicks off on October 6, with a critically important Fourth Amendment issue that has split the nation’s appellate courts, which is whether police can stop someone for violating no law when the officer has reasonably made a mistake that the action is actually a violation of the law. In this Heien v. North Carolina case, the stop was for a purportedly mistaken belief by the police officer that the law required both rather than one car brake light to be working.

This Heien issue is separate from the appellate caselaw allowing police under certain circumstances to make arrests arising from reasonably mistaking the facts (for instance entering and searching the wrong house, based on an officer’s mistakenly listing the wrong house address number on a search warrant application).

A temptation by some Supreme Court justices might be to say that the traffic and criminal laws are too complex and voluminous to let criminals off by a mere mistaken interpretation of the law, and to say that ruling against Heien is merely a natural extension of allowing for leeway for arrests arising from reasonably mistaking the facts. I counter that police must not be permitted a windfall in being able to obtain a conviction from finding drugs or weapons in a car that police unlawfully stopped in the first place, and that ruling against Heien will discourage police from actually knowing the essential law.

Thanks to SCOTUS Blog for its review of and links to documents in this Heien case.