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Analysis: The simplicity of arrest, the complexity of theory


When the Supreme Court writes constitutional rules to govern the day-to-day actions of police, it always seeks to make rules as simple as possible, to leave little for the officers on the ground to guess about.  But drawing up a constitutional rule along what the Court hopes will be bright or clear-cut lines may not be simple at all. Some rather complex theory may get in the way of the aspiration for an easily understood and easily applied rule.  That is what the Court discovered anew in its hearing Monday in Virginia v. Moore (06-1082), a police arrest and search case.

If the hearing had been confined to the two core arguments of opposing counsel, the discussion would have been simple. The state of Virginia, backed by the federal government, argued for a starkly simple rule: if police have a reason to believe a crime has been committed — that is, they have probable cause — they may make an arrest, even if that is illegal under state law. And, having made the arrest, they may search for evidence of crime and that will not violate the federal Fourth Amendment.  Defense counsel for David Lee Moore argued for a rule of equal simplicity: if the arrest is illegal under state law or otherwise, no search may follow, and any evidence found in a search that occurs anyway is barred by the Fourth Amendment.  The Court, in reaction, seemed at times to lean each way, but mostly seemed to be diverted by difficult theoretical complications.

Some examples that cropped up in the one-hour hearing: May an arrest be considered legal, if the person who made it was without power to arrest? If state law makes the arrest illegal, does that mean there could have been no probable cause to make it in the first place? May an arrest be made despite a state law for a really petty or non-violent crime? Does probable cause mean a reason to believe a crime has been committed or does it mean probable cause to make an arrest, and does the distinction make a constitutional difference? Is the constitutional limit on arrest authority something entirely different from the limit on search power following arrest? Suppose an arrest is unlawful, but a follow-up search has been made anyway: what is the remedy and who fashions it and under what law?

If one judged the hearing by its tonal quality, one could have left with the impression that the state fared a bit better than Moore.  Part of that would be due to the fact that Virginia’s lawyer, Deputy State Solicitor General Stephen B. McCullough, was rigorously devoted to keeping it simple — even to the point of saying that a Justice Department janitor zealously caught up in the Department’s mission could go out and make arrests, as long as he had probable cause; the same for an administrative law judge for the Bureau of Customs (comments that led Justice Antonin Scalia to say: “That’s fantastic…Do you really think that?”)  On the other hand, Moore’s lawyer, Thomas C. Goldstein, allowed a great deal of nuance to get into his argument, such as the antique law of trespass and the differing legal consequences of searches of arrested people and impounded cars.

But to suggest that this argument was about atmospherics would be too simple.  The Court, it seems plain, will not be able to rule one way or the other until it sorts out some basics about Fourth Amendment law, and before it scours pretty rigorously its past precedents in this field.  Along the way in Monday’s hearing, it became rather obvious that the Court is not so sure that it wants to allow arrests in defiance of state law for mere trivialities (like, perhaps, spitting, still a crime under Virginia law but not one for which an arrest is legal), but is not sure it wants to expand the exclusion of evidence under the federal Constitution because of a violation of state law.  It also seemed unsure of whether it wants to reward Virginia with a federal constitutional suppression remedy for an illegal arrest that leads to a search, when perhaps Virginia would not require suppression under its own law.  Most of all, it seemed in doubt about whether it can rule in this case without casting aside some precedents — including, perhaps, a noteworthy 1988 decision (California v. Greenwood) in which the Court refused to follow California law that police need a warrant to search someone’s garbage at curbside because the Court found that the Fourth Amendment treats the garbage as no longer containing anything private.