The nation’s courts continue to ensure that the less you know as a law enforcement officer, the more leeway you’ll be granted. USA Today’s Brad Heath tweeted out a screenshot from a Medicare fraud case that shows ignorance of the law is no excuse… unless you’re in law enforcement.
The accused doctor sought to have the evidence suppressed [PDF] because the search warrant contained assertions that were false.
Dr. Barnes argues the affidavit erroneously states that a physician is required to meet a Medicare beneficiary in person before certifying that beneficiary for home healthcare services. According to Dr. Barnes, the applicable Medicare regulations allow this “face-to-face” requirement to be satisfied through a nurse practitioner or a physician assistant. Had the warrant affidavit contained a correct summary of the applicable law, Dr. Barnes argues the magistrate judge would not have found probable cause that Medicare fraud had been committed.
The court, however, found that errors of law are pretty much unchallengeable when it comes to warrant affidavits.
Franks does not apply to the alleged misstatement of law in this case and therefore does not preclude application of the good faith exception.
The question before the Court in Franks was whether a criminal defendant “ever ha[s] the right . . . to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?” Dr. Barnes has not identified any cases extending Franks to misstatements of law. Instead, the Court’s research indicates the relevant inquiry is whether the warrant affidavit contains false statements of fact. That no other court has applied Franks to misstatements of law is a strong reason for declining to do so in this case.
Why can’t a defendant raise a Franks challenge alleging “misstatements of law?” Well, it’s because law enforcement officers — despite being charged with enforcing the law — are not required to know the details of the laws they’re enforcing.
As the Supreme Court recognized over 50 years ago, “affidavits for search warrants . . . . are normally drafted by nonlawyers in the midst and haste of a criminal investigation.”
Which leads to this [all emphasis mine]:
As an officer untrained in the law, S.A. Bradford cannot reasonably be expected to understand the nuances of the law, especially the “maze of Medicare regulations”-as Dr. Barnes described them-at issue in this case.
As for all the nonlawyers not employed by law enforcement agencies, they’re still on the hook for not knowing the nuances of the “maze of regulations” surrounding almost every business or service.
The Supreme Court gave law enforcement a “close enough” pass for traffic stops and detentions in its 2014 Heien decision, stating that officers can’t even be expected to know the narrow(er) set of laws pertinent to traffic enforcement. Here, another “good faith” pass is handed out, allowing officers specializing in certain investigations (like medical fraud) to have only a passing knowledge of the laws they’re using to arrest and prosecute people with.
As Scott Greenfield points out, the continued expansion of the “good faith” exception means it’s far more beneficial for law enforcement officers to remain ignorant of the law than it is to strive towards expertise.
The absurdity of the court’s rationale would be good for a party joke but for the fact that this is serious. Of course, it’s true that no federal agents (and for yuks, let’s add, because he’s a non-lawyer) could know every law and regulation. The reason this is funny is that no lawyer, no judge, no legislator, no one, knows every crime. No one has even been able to count how many exist, with best guesstimates at 35,000 federal crimes (including regulatory offenses), plus all the state, local, etc., crimes on top of that. The ridiculousness of it all is manifest, but that doesn’t mean ignorantia juris non excusa won’t land your butt in prison.
What this reflects isn’t sound legal doctrine, but a policy choice: that cops get a free pass and you don’t. The less they know, the broader their authority. The less they know, the more luxurious their baseless assumptions.*** The less they know, the more we forgive their errors.
***For example, “I didn’t know if that he wasn’t armed, so when he reached into his car to retrieve his driver’s license, after I commanded him to give me his driver’s license, I didn’t know if he had a weapon in the car, so I shot him.” The more you don’t know, the more you’re allowed to do.
The courts don’t expect law enforcement to be perfect, but they refuse to extend the same courtesy to the accused. The rationale for this double standard appears to be that law enforcement officers are on the side of good and must be indulged, while every accused citizen tends toward evil, even when it might not have been maliciousness that prompted the criminal act, but ignorance.
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