http://www.scotusblog.com/2008/01/analysis-police-state-sovereignty-and-the-constitution/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 http://www.scotusblog.com/2008/01/analysis-police-state-sovereignty-and-the-constitution/#comment-14189 Chris McGrath Sun, 13 Jan 2008 21:48:11 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-police-state-sovereignty-and-the-constitution/#comment-14189 The rule the petitioner asks the Supreme Court to adopt - that a search incident to an arrest invalid under state law does not trigger the federal exclusionary rule - would have broad negative implications. Virginia maintains that the exclusionary rule is implicated only when an arresting officer effects an arrest without probable cause to believe a crime has been committed. But, if the states do not categorize what is and is not an arrestable crime insofar as the Fourth Amendment is concerned, then who does? If Virginia wins under this rationale, any violation of any state traffic law, whether it is an arrestable offense or not, could serve as a basis for a search incident to arrest. Officers will have an incentive to arrest and search all drivers they stop. The Court should decline to adopt an "automatic search" rule. As long as there was no attenuation between the unlawful arrest and the search, Moore should win. The rule the petitioner asks the Supreme Court to adopt – that a search incident to an arrest invalid under state law does not trigger the federal exclusionary rule – would have broad negative implications. Virginia maintains that the exclusionary rule is implicated only when an arresting officer effects an arrest without probable cause to believe a crime has been committed. But, if the states do not categorize what is and is not an arrestable crime insofar as the Fourth Amendment is concerned, then who does? If Virginia wins under this rationale, any violation of any state traffic law, whether it is an arrestable offense or not, could serve as a basis for a search incident to arrest. Officers will have an incentive to arrest and search all drivers they stop. The Court should decline to adopt an “automatic search” rule. As long as there was no attenuation between the unlawful arrest and the search, Moore should win.

]]> http://www.scotusblog.com/2008/01/analysis-police-state-sovereignty-and-the-constitution/#comment-14185 Joe Sun, 13 Jan 2008 14:47:41 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-police-state-sovereignty-and-the-constitution/#comment-14185 is it "reasonable" to have a search or seizure that violates local law? When determining due process of law, it often is left to local understandings of the word "property." I'm not sure why it is "reasonable" to search in violation of local law. At least, it seems reasonable to think otherwise. is it “reasonable” to have a search or seizure that violates local law? When determining due process of law, it often is left to local understandings of the word “property.” I’m not sure why it is “reasonable” to search in violation of local law. At least, it seems reasonable to think otherwise.

]]> http://www.scotusblog.com/2008/01/analysis-police-state-sovereignty-and-the-constitution/#comment-14173 Tim Baughman Sat, 12 Jan 2008 16:56:07 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-police-state-sovereignty-and-the-constitution/#comment-14173 What if a state explicitly said in a statute, in effect, "we require more for an arrest than the federal constitution does, but if our state-law requirement is violated but the federal constitutional requirements are met the exclusionary rule is not to be applied." If Moore wins, the state will be compelled to apply the exclusionary rule even though it has, as a matter of state law, added "extra requirements' for arrest, because a violation of those extra requirements automatically is a violation of the 4th Amendment, as the arrest was not consistent with state law, and the Virginia Supreme Court says that an arrest not in conformance with state law violates the 4th Amendment. This strikes me as a very odd result. What if a state explicitly said in a statute, in effect, “we require more for an arrest than the federal constitution does, but if our state-law requirement is violated but the federal constitutional requirements are met the exclusionary rule is not to be applied.” If Moore wins, the state will be compelled to apply the exclusionary rule even though it has, as a matter of state law, added “extra requirements’ for arrest, because a violation of those extra requirements automatically is a violation of the 4th Amendment, as the arrest was not consistent with state law, and the Virginia Supreme Court says that an arrest not in conformance with state law violates the 4th Amendment. This strikes me as a very odd result.

]]> http://www.scotusblog.com/2008/01/analysis-police-state-sovereignty-and-the-constitution/#comment-14168 V.R. Stull Sat, 12 Jan 2008 06:35:31 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-police-state-sovereignty-and-the-constitution/#comment-14168 “If the Fourth Amendment’s exclusionary rule were expanded to cover state-law violations, then state legislatures and state supreme courts would have the power to define the federal Constitution, . . .." Really? How is a state court, or legislature for that matter, going to issue a decision or enact a statute that conflicts with a SC 4th Amendment ruling? And in what was does the 4th Amendment not now cover state-law violations? “If the Fourth Amendment’s exclusionary rule were expanded to cover state-law violations, then state legislatures and state supreme courts would have the power to define the federal Constitution, . . ..” Really? How is a state court, or legislature for that matter, going to issue a decision or enact a statute that conflicts with a SC 4th Amendment ruling? And in what was does the 4th Amendment not now cover state-law violations?

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