Vagueness Attacks on Searches and Seizures

51 Pages Posted: 9 Apr 2020

Date Written: March 01, 2020


Because many low-level crimes rarely, if ever, serve as the basis for charges in a criminal case that is seriously litigated, they have long been beyond the reach of the vagueness doctrine, even though many may in fact be unconstitutionally vague. Police officers often use these indefinite crimes to justify stops and arrests, which can lead to searches that uncover evidence of more serious crimes. But when charges are brought for the more serious offenses, vagueness attacks on the predicate crimes have been rejected. The thinking has been that arresting officers are not expected to anticipate, as a factual matter, that the law will be struck down in the future. As a result, however, many of the low-level offenses used to justify stops and arrests are insulated from judicial review. In this article, I explore that problem and offer a novel solution based on Heien v. North Carolina, 135 S. Ct. 530 (2014). By permitting searches and seizures premised on an officer’s reasonable mistake of law, I argue, Heien opened the door to strictly legal challenges (as opposed to factual challenges) to an officer’s basis for a search or seizure. Under Heien, a mistaken interpretation is unreasonable—and therefore a Fourth Amendment violation—when no reasonable judge could have adopted it. That is essentially the same claim made when arguing that a law is unconstitutionally vague. Heien thus creates a backdoor for vagueness challenges in the context of a motion to suppress—solving the insulation problem just described.

Keywords: vagueness, criminal law, criminal procedure, fourth amendment, rule of law, heien

Suggested Citation

Johnson, Joel, Vagueness Attacks on Searches and Seizures (March 01, 2020). Virginia Law Review, Vol. 107, 2021. Available at SSRN:

Joel Johnson (Contact Author)

Independent ( email )

No Address Available
United States

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