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Thread: SCOTUS OK's Virginia search incident to statutorily illegal arrest

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    Newbie W.E.G.'s Avatar
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    SCOTUS OK's Virginia search incident to statutorily illegal arrest

    Syllabus of opinion
    http://www.law.cornell.edu/supct/html/06-1082.ZS.html
    and links to full opinion and concurrence

    VIRGINIA v. MOORE (No. 06-1082)
    Opinion
    [Scalia]
    Concurrence
    [Ginsburg]

    Syllabus

    VIRGINIA v. MOORE
    certiorari to the Supreme Court Virginia
    No. 06–1082. Argued January 14, 2008—Decided April 23, 2008

    Rather than issuing the summons required by Virginia law, police arrested respondent Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, and Moore was tried on drug charges. The trial court declined to suppress the evidence on Fourth Amendment grounds. Moore was convicted. Ultimately, the Virginia Supreme Court reversed, reasoning that the search violated the Fourth Amendment because the arresting officers should have issued a citation under state law, and the Fourth Amendment does not permit search incident to citation.

    Held: The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest. Pp. 3–13.

    (a) Because the founding era’s statutes and common law do not support Moore’s view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to a ‘clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since,’ ” Atwater v. Lago Vista, 532 U. S. 318 . Pp. 3–5.

    (b) Where history provides no conclusive answer, this Court has analyzed a search or seizure in light of traditional reasonableness standards “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295 . Applying that methodology, this Court has held that when an officer has probable cause to believe a person committed even a minor crime, the arrest is constitutionally reasonable. Atwater, supra, at 354. This Court’s decisions counsel against changing the calculus when a State chooses to protect privacy beyond the level required by the Fourth Amendment . See, e.g., Whren v. United States, 517 U. S. 35 . United States v. Di Re, 332 U. S. 581 , distinguished. Pp. 6–8.

    (c) The Court adheres to this approach because an arrest based on probable cause serves interests that justify seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. A State’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional. While States are free to require their officers to engage in nuanced determinations of the need for arrest as a matter of their own law, the Fourth Amendment should reflect administrable bright-line rules. Incorporating state arrest rules into the Constitution would make Fourth Amendment protections as complex as the underlying state law, and variable from place to place and time to time. Pp. 8–11.

    (d) The Court rejects Moore’s argument that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 . While officers issuing citations do not face the same danger, and thus do not have the same authority to search, Knowles v. Iowa, 525 U. S. 113 , the officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification,” Robinson, supra, at 235. Pp. 11–13.

    272 Va. 717, 636 S. E. 2d 395, reversed and remanded.

    Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment.


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    No time to read the whole opinion, I'm also not certain I would fully comprehend it, so did anyone hear whether they laid out a level-of-scrutiny for offences which could reasonably result in arrest?

    Otherwise, cops could use J-walking or loud talking (disturbing the peace) as a means to gather evidence without probable cause.

    I would have expected at least one of the justices to raise that point.

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    ufcfanvt wrote:
    No time to read the whole opinion, I'm also not certain I would fully comprehend it, so did anyone hear whether they laid out a level-of-scrutiny for offences which could reasonably result in arrest?

    Otherwise, cops could use J-walking or loud talking (disturbing the peace) as a means to gather evidence without probable cause.

    I would have expected at least one of the justices to raise that point.
    Only level of scrutiny is the Constitution





    "In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable."


    "A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional."

    "The rule extends even to minor misdemeanors...because of the need for a brightline
    constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be
    deterred from making legitimate arrests."

    "...the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest."

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    Regular Member Virginiaplanter's Avatar
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    Justice Ginsburg Concurring in the Opinion:

    " I agree with the Court’s conclusion and its reasoning, however, to this extent. In line with the Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 354 (2001), Virginia could have made driving on a suspended license an arrestable offense. The Commonwealth chose not to do so. Moore asks us to credit Virginia law on a police officer’s arrest authority, but only in part. He emphasizes Virginia’s classification of driving on a suspended license as a nonarrestable misdemeanor. Moore would have us ignore, however, the limited consequences Virginia attaches to a police officer's failure to follow the Commonwealth's summons only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons."

    While Moore may be in the Big House, those arresting officers may soon be in the poor house.

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    I hope it was worth it....

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    Virginiaplanter wrote:
    While Moore may be in the Big House, those arresting officers may soon be in the poor house.
    In view of this opinion that holds that no Constitutional right was violated, I wonder what "tort suit" Justice Ginsberg has in mind?


    A §42 USC 1983 case would appear to have very little chance of success.

    Common-law abduction/kidnapping?


    I won't hold my breath waiting for that tort case to ring the bell.

    I'd wager the most that will come of this is a don't-do-that-again letter in the officers' agency file - maybe.

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    so basically what the USSC is saying is that police officers may arrest anyone at anytime when any crime, no matter how minor, is committed and any search incident to arrest will never violate the 4th amendment nor require evidence supression.

    did I get that right?

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    DKSuddeth wrote:
    so basically what the USSC is saying is that police officers may arrest anyone at anytime when any crime, no matter how minor, is committed and any search incident to arrest will never violate the 4th amendment nor require evidence supression.

    did I get that right?

    I think that's about right.

    Only way I can think of to fix it at the state level is to codify the states' rules of evidence to expressly prohibit this sort of illegally-obtained evidence. I wouldn't hold my breath waiting for that to happen though.

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    Regular Member Virginiaplanter's Avatar
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    SCOTUS has sent the case back to the Virginia Supreme Court to write a new opinion consistent with the new holding. We will learn a whole lot more after they write that new opinion (probably within the next month) and I suspect you will see a change in the way things are done in Virginia both at the court level for rules of evidence and at the police level for violating state law. The status quo is unacceptable on all levels.

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    The VA Legislature needs to pass a law dictating that evidence found in this manner is not admissable.

    Problem solved.

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    hsmith wrote:
    The VA Legislature needs to pass a law dictating that evidence found in this manner is not admissable.

    Problem solved.
    There is much truth to what you say. SCOTUS took the Commonwealth to task and in so many words told the General Assembly to pass laws to clarify the issue. I am still trying to figure out if there is any way that the Va Supreme Court can address the issue without the General Assembly's involvement, and so far am coming up empty-handed.

    We - the citizens - just went through a difficult struggle in defeating HB436 (Misdemeanor arrest or summons at discretion of law-enforcement officer. Gives a law-enforcement officer the choice of issuing a summons and releasing the person or arresting him for Class 1 and 2 misdemeanors.) Proposing legislation that will make it a crime to arrest a person for a Class 1 or 2 misdemeanor is going to be difficult, and getting it passed likely impossible.The resolution seems to be only through codifying the rules of evidence, and in this case it is clear that doing so isnot strengthening the Commonwealth's position AGAINST crime, I see a difficult battle ahead.

    Add to the difficulties the clarity with which SCOTUS has said that a police officer may arrest, and therefore search incident to arrest, as long as there is probable cause, no matter how petty (as opposed to egregious) the offense, without violating the 4th Amendment. If I can learn anything from this, it seems to be that Moore should have challenged on state law and state constitution grounds instead of looking to the US Constitution. SCOTUS strongly suggested that there were some winnable arguments that could have been made there, but of course it was out of their jurisdiction to look beyond the four corners of the appeal as presented before them. (As opposed to the stretches of jurisdictional limits used to reach some other social justice decisions )

    Unfortunatrely Moore cannot go back and begin his appeal over again basing it on state constitutional grounds, thanks to Virginia's 21-day rule. But that's a rant for another time.

    stay safe.

    skidmark
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    W.E.G. wrote:
    Virginiaplanter wrote:
    While Moore may be in the Big House, those arresting officers may soon be in the poor house.

    In view of this opinion that holds that no Constitutional right was violated, I wonder what "tort suit" Justice Ginsberg has in mind?
    Common-law abduction/kidnapping?
    Such actions have succeeded in obtaining some relief. Spiers v. Sydnor, Case No. 00-1712 (E.D. Va. 2001) (holding Sheriff liable for damages for false imprisonment for handcuffing a high school band master in violation of § 19.2-74 and making the band master sit on a curb because his band was not marching fast enough).

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    hsmith wrote:
    The VA Legislature needs to pass a law dictating that evidence found in this manner is not admissable.

    Problem solved.
    Or pass a liquidated damage penalty - enough to deter these unlawful arrests.

    Also, in future cases, Va. S. Ct. could hold, if the Def. raises the issue, that the Va. Const. requires evidence suppression. Other state courts of done so and these cases could be used as pursuasive authority. See e.g. State v. Bricker, 134 P.3d 800 (N.M. App. 2006); State v. Lamb, 413 S.E.2d 511 (Ga. App. 1991); State v. Colzie, 1999 WL 1074111 (Tenn. Crim. App. 1999); State v. Chearis, 995 S.W.2d 641 (Tenn. Crim. App. 1999); State v. Walker, 12 S.W.3d 460, (Tenn. 2000); Tenn. Op. Atty. Gen. No. 02-116, 2002 WL 31398971 (2002 Tenn. A.G.).

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    The Miller case is simply saying that suppression of the evidencefor an arrest that violates a statutory right and not a constitutional one is not appropriate. The issue in the Miller case is greater than the scope of the facts of the case itself. If Miller were to stand as precedent, then the violation of any statutory right during arrest or prosecution would require the suppression of evidence. Even minor violations of procedural law might merit suppression. Historically, the suppression of evidence has only applied to violations of constitutional rights and not statutory ones. That being said, the police should follow the law as it is written and there should be appropriate remedies to those that suffer at the hands of illegal, though not unconstitutional, police misconduct.

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    Mike wrote:
    Such actions have succeeded in obtaining some relief. Spiers v. Sydnor, Case No. 00-1712 (E.D. Va. 2001) (holding Sheriff liable for damages for false imprisonment for handcuffing a high school band master in violation of § 19.2-74 and making the band master sit on a curb because his band was not marching fast enough).
    That case involveda blatant violation. What is the code section for "Slow Marching Band on roadway"???

    Um, there is no code!!

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