Entry into a home to serve a summons violated the Fourth Amendment
The fact is that in Virginia, most gun-related offenses are punishable as misdemeanors. Further, Virginia continues to prefers Summons over custodial arrests, so this opinion helps safeguard your home from police invasion to serve a Summons.[Sergeant David L.] Moore contends that he did not violate the Fourth Amendment rights of Esperanza Guerrero when he entered her home in an effort to serve a judicially-issued misdemeanor summons on Antonia Munguia. He fails to persuade us, however, that the summons was the functional equivalent of an arrest warrant for Fourth Amendment purposes. Summonses confer more limited authority than arrest warrants; notably, Moore lacked the authority to take Munguia into custody upon service of the summons. Moore fails to cite any persuasive Fourth Amendment precedent that permits a government official to enter a dwelling to serve a non-custodial misdemeanor summons. Indeed, the latest relevant opinion of the Virginia Attorney General concludes that an officer lacks such authority. 2003 Va. Op. Att’y Gen. 64, 2003 WL 23208766 (Sept. 16, 2003) (“[A]bsent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor.”).
Moore is denied Qualified Immunity; too bad for him.
Now I'm all confused.
Wasn't it just a few years ago that a "Moore" or "More" got arrested for a misdemeanor instead of summonsed, and the 4th Circuit said in that case that the 4th Amendment did not protect? Something about the 4A not protecting someone against a violation of state law (the cop arresting someone for a misdemeanor instead of issuing a summons)?
Moore. Misdemeanor. Summons. Arrest. Sometimes the 4A does protect; sometimes it don't.
Aha! I thought so! Virginia vs Moore 2008: http://www.law.cornell.edu/supct/html/06-1082.ZO.html
Last edited by Citizen; 08-11-2011 at 10:44 PM.
The case where Moore was the victim of a cop was arrested when he should have been issued a Summons. There never was a Summons in that case.
This case, where Moore is the bad guy (a cop), involved a Summons that was issued by a judge, and the cop treated it like a Custodial Arrest. The panel, in an unpublished opinion, said cops in Virginia can't do that.
Note this case came from Prince William County. Perhaps the plaintiffs are/were "undocumented" -- maybe that colored the opinion, although in theory it shouldn't have.
I read through the opinion... They really zapped the Sergeant:
Then they found he did not merit said immunity. Ouch.Thus, qualified immunity extends “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).