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Analysis: Police, state sovereignty and the Constitution

In Virginia v. Moore (06-1082), scheduled for argument at 10 a.m. next Monday, the Supreme Court will answer a fundamental question: if police have a justifiable reason to make an arrest, thus satisfying the usual test under the Constitution’s Fourth Amendment, how does an arrest become a violation of the Fourth Amendment? The answer of the Virginia Supreme Court: when the arrest violates state law.


A tone of exasperation runs through the Commonwealth of Virginia’s legal filings in a case growing out of a routine arrest of an individual suspected of driving on a suspended license. The state’s attorneys argue that it is one of the most settled issues in criminal law that an arrest made with “probable cause” satisfies the federal Fourth Amendment. They insist that should be the end of the matter. But their state’s Supreme Court has found that the Fourth Amendment requires suppression of evidence gathered during such a routine arrest, if the officers in making the arrest and the follow-up search violated a state law. That result, the state contends, constitutionalizes a mere state law requirement, and upstages the state’s own authority to regulate police conduct and to decide what remedies to adopt for breaches of state requirements. With the support of 18 other states and Puerto Rico, the state of Virginia contends that its state court has intruded deeply into state sovereignty. Virginia, it says, “simply asks this Court to adhere to the time-tested standard of probable cause, a standard that will maintain logic and consistency in the Court’s jurisprudence.”

The other side in the case seeks also to show that the matter is already settled. The Fourth Amendment does allow police to follow up an arrest with a search, but only if the arrest itself was “lawful,” the attorneys for David Lee Moore argue. And they insist that this shows great respect for state sovereignty. The prohibition that officers violated in Moore’s case, his lawyers say, carries out the state’s choice on how officers are to conduct traffic stops like the one they made of Moore. Virginia’s legislature had made its own judgment that arrests like Moore’s are not justified, and the Constitution merely stands behind that choice, according to his attorneys.

The case goes back to February 20, 2003, when detectives in Portsmouth, Va., were talking on the police radio about an individual they knew as “Chub.” One detective thought this was Moore’s nickname. The other detective thought it was another man’s nickname, and said he knew this other “Chub” had had his license suspended. Other officers were told by radio to stop Chub’s vehicle, and they did. Those other officers stopped Moore. The stop was never challenged as illegal: there was no claim that officers lacked probable cause.

But, under Virginia law, driving on a suspended license is only a misdemeanor and, after a stop for such an offense, the officer is to issue a summons to appear at a later court date – essentially, a ticket. If the stopped individual agrees to appear, the officer is to release the individual “forthwith.” In Moore’s case, however, the officers did not issue him a summons. Instead, they arrested him, put him in a police cruiser, gave him Miranda warnings, and got his consent to search a hotel room where he was staying. They reached the hotel room with him, and then conducted a body search, finding 16 grams of cocaine in his jacket pocket and $516 in cash in a pants pocket. He admitted the evidence was his. He was charged with possession of cocaine with intent to distribute it. He moved to suppress the evidence, arguing that the search followed an unlawful arrest because of the violation of state law governing the officer’s conduct at the scene. The suppression motion was denied, and Moore was tried before the judge, without a jury, and convicted. He was sentenced to five years in prison, with 18 months of the sentence suspended. Ultimately, his challenged reached the state Supreme Court, and it found that the breach of state law in the arrest invalidated the search, and thus required suppression of the evidence.

Petition for Certiorari

Virginia’s attorney general and solicitor general then appealed to the Supreme Court on Nov. 5, 2007, raising a single question: “Does the Fourth Amendment require the suppression of evidenced obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law?” The appeal rested heavily upon the fact that a number of states had supplemented the probable cause standard for arrests by enacting “a wide range of procedural statutes that govern” police arrest authority, and a conflict had developed between lower courts on whether those implicated the Fourth Amendment. “Because the Fourth Amendment to the United States Constitution imposes one standard for arrests and state law frequently provides for additional strictures,” the petition said, “it is not unusual for state and federal courts to be confronted with the situation where a police officer has probable cause to arrest as required by the Fourth Amendment, but violates a state law governing arrests.” The Virginia Supreme Court, like the Ninth Circuit Court, the appeal noted, had ordered suppression of evidence in those situations. But five other federal appeals courts and five othere state supreme courts “have reached the directly opposite conclusion.” The state’s plea for Supreme Court review had the support of 13 states and Puerto Rico.

Moore’s lawyers resisted Court review, arguing essentially that there is actually no conflict of authority. But they argued that point by stating very narrowly what they considered to be an issue: whether “the Fourth Amendment permits a warrantless search incident to an arrest for an offense to which state officers may only respond by issuing a citation.” The Virginia court decision, the other side contended, “rests on a narrow holding of constitutional law.”

Nevertheless, the Court, perhaps persuaded that the claim of a conflict was a valid one, granted review on Sept. 25, 2007. The case was scheduled for oral argument on Monday, Jan. 14, at 10 a.m.

Merits Briefs

The central theme of the state’s brief on the merits builds on the core argument that only a violation of the federal Constitution by police officers during a search following an arrest must be suppressed. “If the arrest is valid as a matter of national constitutional law, then any violation of state law is constitutionally irrelevant. The Constitution does not require suppression except where the Constitution itself is violated.” In a plea that the state’s lawyers no doubt expect to resonate with a Court that is presumed to be sensitive to state sovereignty claims, the brief contends: “In ratifying the Fourth Amendment, the Framers of our Constitution did not purport to constitutionalize the many state rules that governed the arrest authority of state officers….As sovereign entities under our Constitution, the States are free to craft additional protections [beyond the probable cause minimum under the Fourth Amendment] for suspects in criminal cases, so long as they do not violate constitutional limitations. Constitutionalizing these state laws will put federal courts in the undesirable position of instructing state officers on questions of state laws and would make the federal judiciary the enforcer of state law.” States must be left free, when there are violations of state law, to provide their own remedies, the Virginia brief asserts. Only “great complexity and confusion” can result if this long-settled area of the law becomes unsettled, it sums up.

The federal government has moved into the case at the merits stage to support Virginia. State limits on arrest power simply do not affect the constitutional analysis, the U.S. Solicitor General argues. It expresses concern about “balkanizing” Fourth Amendment protections by causing them to vary from state to state, within the same state, “and over time as states modify their rules of arrest.” Many of the state restrictions, the government adds, turns on “complex, fact-intensive inquiries that may be difficult for both arrest officers and reviewing courts to resolve.” The Solicitor General – in a clear pitch to the Court’s more conservative Justices – voices concern that “constitutionalizing state restrictions on arrest might also expand the exclusionary rule, by greatly increasing the class of unconstitutional arrests.”

The list of other states in support of Virginia has grown, at the merits stage, to 18, with Puerto Rico joining. They track the state’s argument about state sovereignty interests, but they also add a cautionary note that national interests may also be at stake in this case – close to one of the themes of the Solicitor General’s brief. “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, a proposition this Court has expressly rejected,” the amici states’ brief says. For that proposition, the other states rely on Supreme Court precedents in 1975 (Oregon v. Hass) and 2001 (Arkansas v. Sullivan). The national precedent that these states say the Virginia Supreme Court has expanded inappropriately is Knowles v. Iowa, where the Justices held that police may not make a search incident to an issuance of a mere citation. Knowles, this brief notes, was never arrested; Moore was, so the incident follow a probable-cause arrest is valid.

Moore’s merits brief casts the question in terms of the core concern of the Fourth Amendment – whether some police activity such as an arrest or search is “reasonable.” The question as restated implies its own answer by noting that, here, “the legislature has determined that an arrest furthers no governmental interest.” The bulk of the brief itself focuses on this reasonableness inquiry, suggesting the virtue of the balancing test that that inquiry entails. Moore’s arrest tilts the balance his way, his lawyers argue, because an arrest in situations like his – a mere traffic stop, without more – “squanders scarce police resources and is wholly unnecessary to ensure that the subject is held to account for the offense.” What is at stake in this case, the brief goes on, is not the conversion of a constitutional arrest into an unconstitutional one. “Virginia’s arrest law does not trump the United States Constitution,” it suggests. “Rather, to conduct a search or seizure under the Fourth Amendment, the government must have a good reason. Here it has none.” Where a state deems an arrest unnecessary to vindicate its interests, such as its interest in public safety, an arrest “is necessarily unreasonable…An arrest for a state law offense plainly violates the Fourth Amendment if the state actually defines that conduct as legal.”

On Moore’s side in the case are the American Civil Liberties Union and its state chapter, suggesting that the Court is being asked only “to help Virginia enforce the constitutional consequences of its own policy decisions”; by the National Association of Criminal Defense Lawyers, discussing what the common law is said to indicate about arrests like Moore’s; by the American Bar Association, making a defense of its own policy position that police should issue citations and relase, not arrest, for most minor offenses – a position that led directly to the Virginia statute at issue; and by the Virginia Trial Lawyers Association, briefly echoing others’ arguments.


This case on the surface seems to skew the usual perception that Supreme Court decisions that favor the rights of criminal suspects quite often amount to affronts to the states’ authority to enforce their own criminal laws. That states who are always concerned about their own sovereignty will resist an effort to make their own policy choices in criminal law more effective in real-world scenarios is unusual to say the very least. (Here, the policy choice was to limit police arrest authority.) What the states actually want, of course, is to have evidence obtained in situations such as Moore’s to be admitted to enhance the chanced of getting convictions, and a victory for Moore may reduce those chances at least to some degree. That’s why the more telling argument on the state side – so far as the present Court is concerned – may well be their expressed concern (reinforced by the U.S. Solicitor General) about expanding the exclusionary rule. That rule is not as hardy as it once was, and could well be at risk with more than a few of the present Justices. On Moore’s side, the strongest argument could be the deep bow to the power of the states to define police standards, with the Fourth Amendment not overriding those choices but actually reinforcing them. The heavy focus on the state’s explicitly declared lack of interest in an arrest in Moore’s situation gives a state-sympathetic spin to the “reasonableness” inquiry.