The U.S. Constitution's Fourth Amendment usually requires a warrant for every search. No warrant is needed, however, if the search follows a constitutional arrest. If police reasonably suspect a misdemeanor under state law, arrest the suspect, and search him without a warrant, does the search violate the U.S. Constitution when state law prohibits the arrest?
In 2003, Virginia police stopped David Moore for driving on a suspended license. The officers then violated Virginia law by arresting Moore instead of issuing a summons. A follow-up search revealed cash and cocaine in Moore's pockets. Moore moved to suppress this evidence on grounds that the illegal arrest made the search unreasonable under the Fourth Amendment. Virginia responded that while Moore's arrest violated state law, the search was reasonable under the U.S. Constitution because it was incident to an arrest based on probable cause that he committed a crime. The trial court found the search constitutional and convicted Moore on drug charges. The Virginia Court of Appeals initially reversed but reinstated the conviction after hearing the case en banc. The Supreme Court of Virginia reversed the conviction, and Virginia appealed to the U.S. Supreme Court. This case could affect many state laws concerning civil liberties and the way in which police think about illegal arrests.
Questions as Framed for the Court by the Parties
In 2003, police in Virginia were discussing over the radio that someone nicknamed "Chubs" (David Lee Moore) was driving in the area. Moore v. Commonwealth, 622 S.E.2d 253, 255 (Va. Ct. App. 2005), rev'd, 636 S.E.2d 395 ( Va. 2006), cert. granted, 128 S. Ct. 28 ( U.S. Sept. 25, 2007) (No. 06-1082). Detective B.J. Karpowski happened to know that a man nicknamed "Chubs" had a suspended driver's license, and he radioed the officers to inform them. Id. Detectives Anthony and McAndrew then pulled over Moore, although Moore was not the same person whom Karpowski knew as "Chubs." Id. Coincidentally, though, Moore was driving on a suspended license-a Class 1 misdemeanor under Virginia law. Id. The officers arrested Moore for driving on a suspended license and searched him as a follow-up to the arrest. Brief for Petitioner at 5. The search revealed sixteen grams of crack cocaine and $516 in cash in Moore's pockets. Id.
On trial for dealing drugs, Moore moved to suppress the evidence on statutory and Fourth Amendment grounds, arguing that the arrest was illegal and that the court should suppress any evidence from the search incident to that arrest. Brief for Petitioner at 5-6. Moore claimed the arrest was illegal because, exceptional circumstances aside, Virginia law prohibits arrests for driving on a suspended license, instead requiring officers to issue a summons and release the suspect. Id. at 5. Citing the Supreme Court case Atwater v. Lago Vista, the trial court denied Moore's motion, holding that since there was probable cause to arrest, both the arrest and search were constitutional. Id. at 6, referencing 532 U.S. 318 (2001). Without a constitutional violation, Virginia law does not permit suppression of evidence. Id. at 26. The court convicted Moore of possessing cocaine with intent to distribute and sentenced him to five years in prison with one year and six months suspended. Id. at 6.
Moore appealed to the Virginia Court of Appeals and a divided three-judge panel reversed the conviction. Brief for Petitioner at 6. The panel noted that under Virginia law, the officers should have issued a summons instead of making an arrest. Id. Citing another Supreme Court case, Knowles v. Iowa, the panel held that since the search was incidental to the improper arrest, the search was unconstitutional. Id., referencing 525 U.S. 113 (1998). Virginia petitioned for a rehearing en banc, which the Court of Appeals granted. Id. at 7. The court then reinstated the conviction, reasoning that the violation of a state statute does not warrant excluding evidence under the Fourth Amendment. Id. Moore appealed, and the Supreme Court of Virginia reversed the conviction once again, holding that if state law prohibits an arrest, a warrantless search incident to that arrest violates the U.S. Constitution. See id. at 7-8. Virginia appealed to the U.S. Supreme Court, which granted certiorari on September 25, 2007. Supreme Court Order List: 551 U.S. (Sept. 25, 2007).
At issue is whether a generally permissible search violates the Fourth Amendment if the search stems from an arrest that is prohibited by state law. The Fourth Amendment to the U.S. Constitution guarantees a "right of the people to be secure . . . against unreasonable searches and seizures." Any evidence seized in violation of a defendant's Fourth Amendment right cannot be used to prove her guilt in court. Weeks v. United States, 232 U.S. 383, 398 (1914); Mapp v. Ohio, 367 U.S. 643, 655 (1961). The states can supplement the Fourth Amendment by giving additional rights to criminal suspects. Brief for Petitioner at 9. If those additional rights are violated, however, states need not provide suppression of evidence as a remedy. Id. Because states can provide a less attractive remedy, suspects whose state rights were violated might want to argue that their Fourth Amendment rights were violated as well. See Brief for Respondent at 6.
Under the Fourth Amendment, police typically need a judicial warrant to conduct a search. Brief for Respondent at 6. One exception to this rule allows warrantless searches if they are incidental to a constitutional arrest. Id. As explained in Knowles v. Iowa, this "incident to arrest" exception exists for the sake of preserving evidence and protecting officers by allowing them to disarm the suspect. 525 U.S. 113, 116 (1998). To be constitutional, an arrest must be reasonable under the Fourth Amendment. Brief for Petitioner at 14. For an arrest to be reasonable under the Fourth Amendment, it must be based on probable cause that the suspect committed a crime. Id.
The Supreme Court has yet to decide, however, whether an arrest also needs to be legal under state law to be reasonable under the Fourth Amendment. Brief for Respondent at 34. There may be many cases when police have probable cause to believe that the suspect committed a crime. Id. at 35. But if state law defines the crime, it may also forbid the arrest and tell officers to simply issue a citation. Id. at 7. When state legislators choose to forbid this type of arrest, does it become unreasonable under the Fourth Amendment? David Moore asserts that it becomes unreasonable; the State of Virginia asserts that it does not. Id. at 11; Brief for Petitioner at 10. If Moore prevails, the evidence found during the search would need to be suppressed even though police originally violated a state law and state law does not itself offer suppression as a remedy. Brief for Petitioner at 26.
Virginia concedes that officers violated a state law by arresting Moore instead of releasing him with a summons. Brief for Petitioner at 1. Under Virginia's laws, when a person is detained for a Class 1 misdemeanor, the police are required to simply issue a summons to appear in court and then release him or her. See Va. Code Ann. � 19.2-74 (2007).Thus, for certain violations of state law, Virginia police cannot automatically arrest the suspect. Brief for Respondent at 3. Only three exceptions exist to this rule: police can arrest the suspect if he refuses to stop the unlawful act, poses a danger to himself or others, or refuses to appear in court. See Va. Code Ann. � 19.2-74 (2007). Police officers detained Moore for driving on a suspended license. Brief for Respondent at 5. Since this was a Class 1 misdemeanor under Virginia law, the officers had to issue a summons and release Moore without arrest unless an exception applied. Id. at 5. Instead, the officers placed him under arrest. Id. at 24. After performing a search incident to the arrest, they found cocaine and cash in Moore's pockets and charged him with possession of cocaine with intent to distribute. Id. at 5.After acknowledging a violation of state law, Virginia argues that the arrest was still reasonable under the Fourth Amendment. Brief for Petitioner at 10. What follows may be called a "battle of the standards," with each party arguing for a different standard by which to evaluate the constitutionality of arrests.
Virginia argues that an arrest will always be reasonable under the Fourth Amendment if it is based on probable cause. Brief for Petitioner at 14. For support, Virginia points to language in Whren v. United States, 517 U.S. 806, 817 (1996): "[I]n principle, every Fourth Amendment case, since it turns upon a 'reasonableness' determination, involves a balancing of all relevant factors. With rare exceptions . . . however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause." Brief for Petitioner at 14. While the arrest violated state law, Virginia denies any Fourth Amendment violation because the arrest was based on probable cause that Moore committed a crime. Id. at 13.
Relying on the concept of federalism, Virginia claims that a win for Moore would incorrectly make state law more powerful than the U.S. Constitution. Brief for Petitioner at 17. If Virginia never added � 19.2-74 to its Code, driving on a suspended license would remain a crime like any other. As long as there was probable cause that the suspect committed a crime, officers would then be free to arrest her with no problem under the Fourth Amendment. See id. at 20. The Fourth Amendment, after all, does not distinguish between "major" or "minor" crimes for the purpose of assessing the reasonableness of arrest. See id. at 22. The fact that Virginia chose to make this distinction when it gave additional rights beyond those given by the U.S. Constitution does not require that the Fourth Amendment be interpreted to make that distinction as well. Id. at 20.
Moore responds that Virginia's test focuses too much on probable cause and neglects the larger concept of reasonableness. Brief for Respondent at 34. According to Moore, the proper way to determine reasonableness of arrests under the Fourth Amendment is a balancing test that includes not only probable cause but the parties' competing interests as well. Id. at 13. For support, Moore quotes the Supreme Court's recent holding in Illinois v. Lidster: "in judging reasonableness we look to 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'" See id. at 11, quoting 540 U.S. 419, 426-27 (2004). Moore explains that an arrest qualifies as a "seizure" of one's person under the Fourth Amendment. Id. at 12; see also Delaware v. Prouse, 440 U.S. 648, 653 (1979).
In applying the test from Lidster, Moore concedes that the officers had probable cause to believe he was committing a misdemeanor. Brief for Respondent at 12. "It was therefore reasonable," he writes, "for them to stop [my] vehicle and issue a ticket." Id. At the same time, Moore points out that in the judgment of Virginia's legislators, placing him under arrest did not advance the public interest. Id. at 14. After all, it was the Virginia legislature that criminalized driving on a suspended license. Id. at 18. Since the legislature concluded that this type of crime was not grave enough to justify an automatic arrest, arresting Moore did not advance a public interest. Id. at 14-15. Finally, Moore points out the arrest interfered highly with his liberty: an arrest "is frequently prolonged . . . the detainee [knows] that questioning will continue until he provides his interrogators with the answers they seek." Id. at 12, quoting Berkemer v. McCarty, 468 U.S. 420, 438 (1984). Given the high impact on individual liberty and a lack of public interest in the arrest, Moore concludes that his arrest was unreasonable under the Fourth Amendment. Id. at 7. For Moore, the initial probable cause to stop him could not justify his subsequent arrest in the absence of a compelling public interest. Id. at 34.
Responding to Virginia's argument about federalism, Moore denies that his interpretation of the Fourth Amendment makes the Constitution subservient to Virginia law. Brief for Respondent at 38. Instead, Moore argues that the Fourth Amendment, as applied to the states by the Fourteenth Amendment, already considers state lawmakers' intent. Id. at 17. "The role of state law . . . is thus not to deem an otherwise constitutional arrest violative of the Fourth Amendment," writes Moore, "Rather, to conduct a seizure or search under the Fourth Amendment, the government must have a good reason. Here it has none." Id. at 7-8. In other words, the preservation of reasonableness requires looking at the legal context in which the arrest is made. Id. at 8. Since Virginia police had a duty to issue a summons-but instead singled out a suspect for automatic arrest-the arrest was a case of unreasonable discrimination forbidden by the Fourth Amendment. Id. For Moore, the Fourth Amendment is not just a basic guarantee of minimal rights. See id. at 41-42. Instead, it is a general command that all searches and seizures-whether done by federal or state police-must be reasonable in light of the full legal context. Id. at 41. Virginia, on the other hand, maintains that the meaning of the Fourth Amendment should not be allowed to vary depending on state law. Brief for Petitioner at 21.
This case weighs individual liberty against a state's ability to use criminal evidence while looking to clarify how state law affects the constitutionality of a search. Detectives arrested and searched David Lee Moore for a violation of Virginia law, though state law only allowed the detectives to issue a summons rather than perform an arrest. Brief for Petitioner at 5. The search revealed money and cocaine, which Moore moved to suppress at trial. Id. at 5-6. Moore argued that the search was incident to an unlawful arrest and was thus unconstitutional under the Fourth Amendment, and the Supreme Court of Virginia agreed. Id. at 5-7. The state of Virginia has appealled to the U.S. Supreme Court. Id.
Virginia argues that the purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches and seizures, not violations of state law. Brief for Petitioner at 12-13, 26. It further asserts that the search of Moore was reasonable because it was incident to an arrest based on probable cause that he committed a crime. Id. at 10. Moore, however, argues that the search was unreasonable because it would have been unconstitutional had the detectives not illegally arrested him. See Brief for Respondent at 31-33. He asserts that if state lawmakers deem a violation too minor to justify an arrest, there is insufficient governmental interest to justify the intrusion of a search on individual liberty and privacy. Id. at 14-20.
Some fear that the outcome of this case could lead to a decrease in civil liberty protection. A decision for Virginia may encourage officers to violate civil liberties to obtain evidence. Brief Amici Curiae of the ACLU and ACLU of Virginia at 21-30. Officers could intentionally arrest whomever they wanted to search, even if state law did not allow an arrest, and a court could not exclude the resulting evidence under the Fourth Amendment (assuming there was probable cause that a criminal offense, even if minor, had been committed). Id. For example, citizens could be arrested and searched for committing nonarrestable misdemeanors such as using profanity in public (Va. Code � 18.2-388) or leaving someone else's gate open (� 18.2-143). Brief for Respondent at 24-25. Virginia responds that because the police have very limited resources, it is not in their interest to arrest suspects for all minor offenses. Brief for Petitioner at 44-45. Even if they do, they may be exposing themselves to internal disciplinary measures and civil suits. Brief Amicus Curiae of the United States at 21; Brief for Amici Curiae of Texas et al. at 24-26. Furthermore, states can enact laws that impose a state exclusionary rule for searches incident to unlawful arrests to eliminate this risk. Brief for Petitioner at 22-26. Interestingly, even a decision for Moore could lead to fewer civil liberty protections. State legislatures could react to the ruling by giving officers discretion to make arrests for minor violations so that courts will not suppress evidence due to unauthorized arrests. Id. at 45; see Brief for Amici Curiae of Texas et al. at 28.
A decision for Moore could allow guilty defendants to escape punishment by forcing courts to exclude evidence that would have led to a conviction. Courts may exclude evidence found during a search if the arrest is illegal, even if it is only illegal due to a technicality. Brief for Amici Curiae of Texas et al. at 19-20. For example, if the officer unknowingly made the arrest outside of her territorial limits, or she was out of uniform and failed to identify herself as an officer, a court would have to exclude evidence that came from an otherwise constitutional search. Id. This could discourage states from placing limits on officers' discretion with the goal of protecting innocent people's civil liberties. See id. at 20 (quoting People v. McKay, 41 P.3d 59, 69 ( Cal. 2002)). It could also cause a flood of motions by defendants that courts should exclude evidence because officers failed to observe the minutiae of state laws. Id. at 21.
The outcome of this case could make decision-making for law enforcement or federal courts more complicated. A ruling for Moore would mean that searches that are constitutional in one state might not be in another, even though the circumstances are the same, thus reducing the uniformity of the constitutional standard. Brief for Petitioner at 9, 21. This could make it harder for federal courts to determine whether searches are constitutional, since the courts would have to apply potentially complicated state law. Brief Amicus Curiae of the United States at 13-17. A ruling for Moore could simplify decisions for state police, however, because officers could just apply state law when deciding whether to arrest and search someone instead of applying the Fourth Amendment and state law separately. Brief for Respondent at 51.
This case raises unique issues by implicating not just the Fourth Amendment but the nature of American federalism as well. When state lawmakers limit the power of the police to make arrests, do they automatically enlarge the scope of the Fourth Amendment for everyone in the state? Virginia argues that the Fourth Amendment should provide a single standard for constitutional arrests with no regard to the details of state law. David Moore responds that the Fourth Amendment's prohibition on unreasonable arrests simply cannot be applied without involving state law. A ruling for Virginia could encourage police to execute arrests in violation of state law, because the Fourth Amendment would not intervene to suppress any discovered evidence. A ruling for Moore, however, could encourage state lawmakers to repeal many constraints on state police. Interestingly, both outcomes promise serious changes in the way courts and law enforcement agents approach the issue of illegal arrests.
Written by: Michael Litvin & Suzanne Cook
Edited by: Cecelia Sander Cannon