Illegal Arrest?
 

No more fruit of the poisonous tree?

Don't want this to boil into a political debate just thought this was rather interesting that they ruled this way...can't think of another example off hand...but interesting

Thugs and bangers gettin' off on some lame-ass technicality has always been such bullshit. Good for the Supremes. :clap:

I understand the slippery slope argument that this kinda of thing could lead to intentional abuses by cops...but I say, handle those case-by-case. No way some criminal should walk unless you can prove intentional and deliberate abuse by cops, IMHO.

The way i read it, it's still up to each individual state whether they want to apply the exclusionary rule to violations of state law under state Constitutions (Kan. Bill of rights Sect. 15). Kansas cases seemed to lean the opposite direction. Don't know what Missouri does.

Wow, that seems to be a very dangerous interpretation of the law. Maybe I am just dumb, but that seems to give a loop hole to avoid all illegal searches and seizures.

Sorry, but the rules are there to protect people who ARE NOT criminals, and therefore NEED to be extended to ALL people regardless of guilt or innocence.

I haven't read the actual opinion yet but it should be interesting ....

Funny this was brought up, we talked about this case in Criminal Procedure today (I have exactly 1 day left of law school). From my understanding/opinion this isn't really too much of a stretch of the law.

Even though the arrest was illegal, the search incident to arrest is not unreasonable because the cop had probable cause. Probable cause is all that is required for such a search and as stated this was present. So, though the cop incorrectly arrested the defendant when a summons was in order, because probable cause was present for the search, there is no reason to toss the evidence obtained from the search.

awesome congrats....we talked about this (briefly) in Administrative law today....I just am trying to think of another situation where this might happen...like getting arrested in your home for a noise ordinance violation aand subject to your arrest the police discover stolen property that they wouldn't have found if they had (as the ordinance calls for) just summoned you...I dunno interesting discussion tho

interested in your take stlchief

Ok, so say a person was stopped for speeding, something small like 5 mph over the limit. A ticket is in order, but instead the police arrest the driver, and then search the car and find drugs, or a body, or stolen mechandise.

Do we say, the police officer was wrong to make an arrest for a speeding ticket, but the search was legal because there was then cause to search the car.

Use the same scenario, only this time the driver was going 1mph over, and had been the subject of interest in a crime, and this arrest was used to seize evidence that the police had been unable to obtain a warrant to search for.

I know that those circumstances don't necessarily match those of the case, but they are close. My question is where does the line get drawn?

And congrats on school and good luck with the bar exam.

agreed...are you in Law Enforcement?

Its been a few years since I have taken a crim pro course but this it pretty much the same interpretation I recall.

No, but the implications seem obvious to me. The person had a suspended license, and maybe there are other factors involved with him being stopped that were not mentioned, but according to the law that the officers were bound to, a summons was the appropriate action. Instead they detained him, arrested him and searched his car and found the drugs. Didn't they state the reason was "Our perogitive" or something like that?

I am not a criminal, but I am one of those people who get pissed about things like this on principal alone. Police should follow the law like everyone else. The law said give a summons.

In the thread about the smoking ban, someone said that they could not believe they served their country to protect freedom, just to have their freedom of choice taken away by the government. Well, the government did not take away their choice, people excersised their freedom by voting, so the freedom he served to protect was on glorious display. This is a democracy, and that democracy is what passed the smoking ban.

The Courts protect the privacy of ones home MUCH more than they do a person's car. I think the outcome would be very different in the above case. Save for certain exceptions (a growing number) a person cannot even be arrested in their own home without a warrant. On the other hand if the officer was lawfully inside the home (through exigent circumstances, which don't seem to exist here or consent of the "offender") the plain view doctrine would most likely allow them to seize the evidence and admit it at trial.

Takes this all with a grain of salt as next week is my study week for Crim Pro and Crim Law is not my area, I'm a transactional guy.

But in this case the plain view doctrine would not fit, or they would have had no need to search, and he probably would not have been detained for an hour before the search.

Again I haven't taken a course in Criminal Procedure in a while but I recall that fruit of the poisonous tree concept only applies at a constitutional level. Depending on how long this decision is and who wrote it I might give it a read.

I know we talked about something like this during the semester. I'm going to withhold commenting further until sometime next week when I cram all this info into my head again. These are really good examples and as you're showing, when the SC starts making exceptions on admissible evidence, it can be a very slippery slope. I definitely want to revisit this thread next weak after I've boned up a little.

Are you talking about DenverChiefs hypo? I'm unsure of where the 1 hour comment is coming from.

As I reviewed the original post again, one Justice made note of the constitution having no need to enforce state law. So, what would keep Federal Agents from enlisting the services of local law enforcement to do what they could not do i.e. search a subjects car?

I look forward to learning what you find out. I did have some law classes in college, but I am pretty stupid, so I was just throwing things out there. I do think, however, that this decision would have judges leaning towards making evidence seized in this manner admissable, and would not be so concerned with being overturned on appeal.

Let us know what you learn. Thanks.

This was from the OP

"Instead, detectives detained Moore for almost an hour, arrested him, then searched him and found cocaine."

VIRGINIA, PETITIONER v. DAVID LEE MOORE

No. 06-1082

SUPREME COURT OF THE UNITED STATES

2008 U.S. LEXIS 3674

January 14, 2008, Argued
April 23, 2008, Decided

NOTICE:

The LEXIS pagination of this document is subject to change pending release of the final published version.

PRIOR HISTORY: [*1]
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA.
Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 2006 Va. LEXIS 99 (2006)

DISPOSITION: Reversed and remanded.

CASE SUMMARY:
PROCEDURAL POSTURE: Defendant was convicted for possessing cocaine with the intent to distribute, but his conviction was reversed by the Virginia Supreme Court. The court reasoned that since arresting officers should have issued defendant a citation for driving with a suspended license under state law rather than arresting him and the Fourth Amendment did not permit search incident to citation, an arrest search violated the Fourth Amendment. Certiorari was granted.

OVERVIEW: Defendant was stopped by police officers who suspected he was driving with a suspended license. After they confirmed his license was suspended, they arrested him for the misdemeanor even though under Va. Code Ann. § 19.2-74, they should have only issued him a summons. A search subsequent to arrest revealed he was carrying crack cocaine. The Court noted that its decisions counseled against changing the calculus that the arrest was constitutionally reasonable because there was probable cause to believe defendant committed the minor crime in the officer's presence. The Court had treated additional protections exclusively as matters of state law. Virginia chose to protect individual privacy and dignity more than the Fourth Amendment required, but it also chose not to attach to violations of its arrest rules the potent remedies that federal courts had applied to Fourth Amendment violations. Linking Fourth Amendment protections to state law would have meant losing a bright-line constitutional standard as well as causing those protection to vary from place to place and from time to time. Because the arrest was constitutional, the search incident to the arrest was also constitutional.

OUTCOME: The judgment of the Supreme Court of Virginia was reversed, and the case was remanded for further proceedings not inconsistent with the opinion. 9-0 decision; 1 concurrence.


CORE TERMS: arrest, state law, misdemeanor, probable cause, warrantless arrests, searches and seizures, arresting officers, search incident, arrested, driving, privacy, common law, suspended license, evidence obtained, state officers, safeguard, seizure, police officer, suppression, summons, lawful, constitutionally permissible, federal officers, supervisory power, reasonableness, restrictive, arresting, legality, seized, felony


LexisNexis(R) Headnotes
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > License Violations > Revoked & Suspended Licenses
HN1Go to this Headnote in the case. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who fail or refuse to discontinue the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. § 19.2-74 (2004).

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > General Overview
HN2Go to this Headnote in the case. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN3Go to this Headnote in the case. The Fourth Amendment protects against unreasonable searches and seizures of (among other things) the person. In determining whether a search or seizure is unreasonable, the United States Supreme Court begins with history. It looks to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN4Go to this Headnote in the case. When history has not provided a conclusive answer, the United States Supreme Court has analyzed a search or seizure in light of traditional standards of reasonableness 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.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Arrests > Probable Cause
HN5Go to this Headnote in the case. 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.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN6Go to this Headnote in the case. Whether or not a search is reasonable within the meaning of the Fourth Amendment, has never depended on the law of the particular state in which the search occurs. While individual states may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution, state law does not alter the content of the Fourth Amendment.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN7Go to this Headnote in the case. The Fourth Amendment's meaning does not change with local law enforcement practices--even practices set by rule. While those practices vary from place to place and from time to time, Fourth Amendment protections are not so variable and cannot be made to turn upon such trivialities.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Arrests > Probable Cause
HN8Go to this Headnote in the case. Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law; a warrantless arrest satisfies the Federal Constitution so long as the officer has probable cause to believe that the suspect has committed or is committing a crime.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > General Overview
HN9Go to this Headnote in the case. 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.

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > General Overview
HN10Go to this Headnote in the case. Virginia does not ordinarily exclude from criminal trials evidence obtained in violation of its statutes.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Arrests > Probable Cause
HN11Go to this Headnote in the case. In determining what is reasonable under the Fourth Amendment, the United States Supreme Court has given great weight to the essential interest in readily administrable rules. It has acknowledged that nuanced judgments about the need for warrantless arrest are desirable, but the Court nonetheless has declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. The rule extends even to minor misdemeanors because of the need for a bright-line constitutional standard.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Arrests > Warrantless Arrest
HN12Go to this Headnote in the case. Warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Search Incident to Lawful Arrest > General Overview
HN13Go to this Headnote in the case. Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. This rule covers any lawful arrest with constitutional law as the reference point. That is to say, a lawful arrest is equated with an arrest based on probable cause. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Search Incident to Lawful Arrest > General Overview
HN14Go to this Headnote in the case. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during the extended exposure which follows the taking of a suspect into custody and transporting him to the police station. Officers issuing citations do not face the same danger, and, therefore, they do not have the same authority to search.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > General Overview
Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > General Overview
HN15Go to this Headnote in the case. 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.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection
Criminal Law & Procedure > Arrests > Probable Cause
Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Search Incident to Lawful Arrest > General Overview
HN16Go to this Headnote in the case. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.


SYLLABUS


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 [*2] our society ever since,'" Atwater v. Lago Vista, 532 U.S. 318, 345, 121 S. Ct. 1536, 149 L. Ed. 2d 549. 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, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408. 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, 121 S. Ct. 1536, 149 L. Ed. 2d 549. 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. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89. United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210, 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 [*3] 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, 94 S. Ct. 467, 38 L. Ed. 2d 427. 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, 119 S. Ct. 484, 142 L. Ed. 2d 492, 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, 94 S. Ct. 467, 38 L. Ed. 2d 427. [*4] Pp. 11-13.

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

JUDGES: 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.

OPINION BY: SCALIA

OPINION


JUSTICE SCALIA delivered the opinion of the Court.

We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.

I

On February 20, 2003, two City of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as "Chubs" was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore's license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $ 2,500 fine, Va. Code Ann. §§ 18.2-11, 18.2-272, 46.2-301(C) (Lexis 2005). The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and $ 516 in cash. 1 See 272 Va. 717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d 74 (2005). [*5]

FOOTNOTES

1 The arresting officers did not perform a search incident to arrest immediately upon taking Moore into custody, because each of them mistakenly believed that the other had done so. App. 54-55; see also id., at 33-34. They realized their mistake after arriving with Moore at Moore's hotel room, which they had obtained his consent to search, and they searched his person there. Ibid. Moore does not contend that this delay violated the Fourth Amendment.


Under state law, the officers should have issued Moore a summons instead of arresting him. HN1Go to the description of this Headnote.Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who "fail or refuse to discontinue" the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. § 19.2-74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396-397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where "prior general approval has been granted by order of the general [*6] district court," Va. Code Ann. § 46.2-936; Virginia has never claimed such approval was in effect in the county where Moore was arrested.

Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. HN2Go to the description of this Headnote.Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160-162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia's intermediate court on Fourth Amendment grounds, id., at 149-150, 609 S. E. 2d, at 76, reinstated by the intermediate court sitting en banc, 47 Va. App. 55, 622 S. E. 2d 253 (2005), and finally reversed again by the Virginia Supreme Court, 272 Va., at 725, 636 S. E. 2d, at 400. The Court reasoned that since the arresting officers should have issued Moore a citation [*7] under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Ibid. We granted certiorari. 551 U.S. , 128 S. Ct. 28, 168 L. Ed. 2d 805 (2007).

II

HN3Go to the description of this Headnote.The Fourth Amendment protects "against unreasonable searches and seizures" of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U.S. 295, 299, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999); Wilson v. Arkansas, 514 U.S. 927, 931, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995).

We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted. 2 The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U.S. 616, 624-627, 6 S. Ct. 524, 29 L. Ed. 746 (1886); Payton v. New York, 445 U.S. 573, 583-584, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government [*8] actors as the index of reasonableness.

FOOTNOTES

2 Atwater v. Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), rejected the view JUSTICE GINSBURG advances that the legality of arrests for misdemeanors involving no breach of the peace "depended on statutory authorization." Post, at 1, n. 1 (opinion concurring in judgment). Atwater cited both of the sources on which JUSTICE GINSBURG relies for a limited view of common-law arrest authority, but it also identified and quoted numerous treatises that described common-law authority to arrest for minor misdemeanors without limitation to cases in which a statute authorized arrest. See 532 U.S., at 330-332, 121 S. Ct. 1536, 149 L. Ed. 2d 549. Atwater noted that many statutes authorized arrest for misdemeanors other than breaches of the peace, but it concluded that the view of arrest authority as extending beyond breaches of the peace also reflected judge-made common law. Id., at 330-331, 121 S. Ct. 1536, 149 L. Ed. 2d 549. Particularly since Atwater considered the materials on which JUSTICE GINSBURG relies, we see no reason to revisit the case's conclusion.


Joseph Story, among others, saw the Fourth Amendment as "little more than the affirmance of a great constitutional doctrine of the common law," 3 Commentaries on the Constitution of the [*9] United States § 1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Law in The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 613-614 (1999); 3 see also T. Taylor, Two Studies in Constitutional Interpretation 44-45 (1969).

FOOTNOTES

3 Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613, n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to the Fourth Amendment's contours simply applied the principle that statutes enacted in the years immediately before or after the Amendment was adopted shed light on what citizens at the time of the Amendment's enactment saw as reasonable. Boyd v. United States, 116 U.S. 616, 622-623, 6 S. Ct. 524, 29 L. Ed. 746 (1886).


Of course such a claim would not have been available against state officers, since [*10] the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. 243, 7 Pet. 243, 8 L. Ed. 672 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U.S. 581, 589, 68 S. Ct. 222, 92 L. Ed. 210 (1948); United States v. Watson, 423 U.S. 411, 420, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions. 4 The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, "taken for granted" at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994).

FOOTNOTES

4 Massachusetts, for example, had a state constitutional provision paralleling the Fourth Amendment, but the litigants in the earliest cases we have identified claiming violations of arrest statutes [*11] in the Commonwealth did not argue that their arrests violated the Commonwealth's Constitution. See Brock v. Stimson, 108 Mass. 520 (1871); Phillips v. Fadden, 125 Mass. 198 (1878); see also Tubbs v. Tukey, 57 Mass. 438, 3 Cush. 438 (1849) (asserting violation of state common law concerning arrest but not asserting violation of state constitution).


There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev., at 660-663. Be that as it may, as Moore adduces neither case law nor commentaries to support his 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, 345, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (alteration in original).

III

A

HN4Go to the description of this Headnote.When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness "by assessing, on the one hand, the degree to [*12] 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." Houghton, 526 U.S., at 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408; see also Atwater, 532 U.S., at 346, 121 S. Ct. 1536, 149 L. Ed. 2d 549. That methodology provides no support for Moore's Fourth Amendment claim. In a long line of cases, we have said that HN5Go to the description of this Headnote.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. Id., at 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549; see also, e.g., Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004); Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Brinegar v. United States, 338 U.S. 160, 164, 170, 175-176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state [*13] law authorized the search was irrelevant. States, we said, remained free "to impose higher standards on searches and seizures than required by the Federal Constitution," id., at 62, 87 S. Ct. 788, 17 L. Ed. 2d 730, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law.

In California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988), we held that search of an individual's garbage forbidden by California's Constitution was not forbidden by the Fourth Amendment. HN6Go to the description of this Headnote."[W]hether or not a search is reasonable within the meaning of the Fourth Amendment," we said, has never "depend[ed] on the law of the particular State in which the search occurs." Id., at 43, 108 S. Ct. 1625, 100 L. Ed. 2d 30. While "[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution," ibid., state law did not alter the content of the Fourth Amendment.

We have applied the same principle in the seizure context. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought [*14] it obvious that HN7Go to the description of this Headnote.the Fourth Amendment's meaning did not change with local law enforcement practices -- even practices set by rule. While those practices "vary from place to place and from time to time," Fourth Amendment protections are not "so variable" and cannot "be made to turn upon such trivialities." Id., at 815, 116 S. Ct. 1769, 135 L. Ed. 2d 89.

Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589, 68 S. Ct. 222, 92 L. Ed. 210. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589-590, 68 S. Ct. 222, 92 L. Ed. 210. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute -- saying that state law governs the validity of a warrantless arrest [*15] "in [the] absence of an applicable federal statute," id., at 589, 68 S. Ct. 222, 92 L. Ed. 210, and that the Di Re rule applies "except in those cases where Congress has enacted a federal rule," id., at 589-590, 68 S. Ct. 222, 92 L. Ed. 210.

Later decisions did not expand the rule of Di Re. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948), relied on Di Re to suppress evidence obtained under circumstances identical in relevant respects to those in that case. See 333 U.S., at 12, 15, n. 5, 68 S. Ct. 367, 92 L. Ed. 436. And Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), upheld a warrantless arrest in a case where compliance with state law was not at issue. While our opinion said that HN8Go to the description of this Headnote."[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law," it also said that a warrantless arrest satisfies the Constitution so long as the officer has "probable cause to believe that the suspect has committed or is committing a crime." Id., at 36, 99 S. Ct. 2627, 61 L. Ed. 2d 343. We need not pick and choose among the dicta: Neither Di Re nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution's [*16] protections concerning search and seizure remain the same.

B

We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817, 116 S. Ct. 1769, 135 L. Ed. 2d 89; Atwater, supra, at 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549. 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. See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 177-202 (1965).

Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect's appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e.g., Dept. of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as [*17] a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. HN9Go to the description of this Headnote.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.

If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. HN10Go to the description of this Headnote.Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161, 609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include [*18] the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.

Even if we thought that state law changed the nature of the Commonwealth's interests for purposes of the Fourth Amendment, we would adhere to the probable-cause standard. HN11Go to the description of this Headnote.In determining what is reasonable under the Fourth Amendment, we have given great weight to the "essential interest in readily administrable rules." Atwater, 532 U.S., at 347, 121 S. Ct. 1536, 149 L. Ed. 2d 549. In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346-347, 121 S. Ct. 1536, 149 L. Ed. 2d 549. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line 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 [*19] legitimate arrests. Id., at 351, 121 S. Ct. 1536, 149 L. Ed. 2d 549. We found little to justify this cost, because there was no "epidemic of unnecessary minor-offense arrests," and hence "a dearth of horribles demanding redress." Id., at 353, 121 S. Ct. 1536, 149 L. Ed. 2d 549.

Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. § 19.2-74.A.1. Atwater specifically noted the "extremely poor judgment" displayed in arresting a local resident who would "almost certainly" have discontinued the offense and who had "no place to hide and no incentive to flee." 532 U.S., at 346-347, 121 S. Ct. 1536, 149 L. Ed. 2d 549. It nonetheless declined to make [*20] those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained -- that is, where the State has already acted to constrain officers' discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress.

Finally, linking Fourth Amendment protections to state law would cause them to "vary from place to place and from time to time," Whren, 517 U.S., at 815, 116 S. Ct. 1769, 135 L. Ed. 2d 89. Even at the same place and time, the Fourth Amendment's protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U.S. 206, 210-212, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), we noted the practical difficulties posed by the "silver-platter doctrine," which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now [*21] restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns.

We conclude that HN12Go to the description of this Headnote.warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.

IV

Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that HN13Go to the description of this Headnote.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, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). We have described this rule as covering any "lawful arrest," id., at 235, 94 S. Ct. 467, 38 L. Ed. 2d 427, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, [*22] a search incident to the arrest requires no additional justification." Ibid. (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32-33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17-19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used "lawful" as shorthand for compliance with state law, while our constitutional decision in Robinson used "lawful" as shorthand for compliance with constitutional constraints.

HN14Go to the description of this Headnote.The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during "the extended exposure which follows the taking of a suspect into custody and transporting him to the police station." Robinson, supra, at 234-235, 94 S. Ct. 467, 38 L. Ed. 2d 427. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls [*23] here. The state 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, 94 S. Ct. 467, 38 L. Ed. 2d 427.

The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore's arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U.S. 471, 484-485, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, HN15Go to the description of this Headnote.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.

* * *

We reaffirm against a novel challenge what we have signaled for more than half a century. HN16Go to the description of this Headnote.When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits [*24] them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

CONCUR BY: GINSBURG

CONCUR


JUSTICE GINSBURG, concurring in the judgment.

I find in the historical record more support for Moore's position than the Court does, ante, at 3-5. 1 Further, our decision in United States v. Di Re, 332 U.S. 581, 587-590, 68 S. Ct. 222, 92 L. Ed. 210 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned to the Fourth Amendment and not to our "supervisory power," ante, at 7. 2 And I am aware of no "long line of cases" holding that, regardless of state law, probable cause renders every warrantless arrest for crimes committed in the presence of an arresting officer "constitutionally reasonable," ante, at 6. 3

FOOTNOTES

1 Under the common law prevailing at the end of the 19th century, it appears that arrests for minor misdemeanors, typically involving no breach of the peace, depended on statutory authorization. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 674 (1924) ("Neither [an officer] [*25] nor [a citizen], without statutory authority, may arrest [a defendant] for . . . a misdemeanor which is not a [breach of the peace]" (emphasis added)); 9 Halsbury, Laws of England §§ 608, 611-612, 615 (1909). See also Atwater v. Lago Vista, 532 U.S. 318, 342-345, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (noting 19th-century decisions upholding statutes extending warrantless arrest authority to misdemeanors, other than breaches of the peace, committed in a police officer's presence); Wilgus, supra, at 551 (warrantless misdemeanor arrests "made under authority of a statute must conform strictly to its provisions; otherwise they will not be valid, and the one arresting becomes a trespasser").

Noting colonial hostility to general warrants and writs of assistance, the Court observes that "founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness." Ante, at 4. The practices resisted by the citizenry, however, served to invade the people's privacy, not to shield it.

2 The Court attributes Di Re's suppression ruling to our "supervisory power," not to "a rule we derived from the Constitution." Ante, at 7. Justice Jackson, author of Di Re, however, did [*26] not mention "supervisory power," placed the decision in a Fourth Amendment context, see 332 U.S., at 585, 68 S. Ct. 222, 92 L. Ed. 210, and ended with a reminder that "our Constitution [places] obstacles in the way of a too permeating police surveillance," id., at 595, 68 S. Ct. 222, 92 L. Ed. 210. The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re's Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, "the law of the state where an arrest without warrant takes place determines its validity." Id., at 588-589, 68 S. Ct. 222, 92 L. Ed. 210.

3 Demonstrative of the "long line," the Court lists Atwater, 532 U.S., at 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549, Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004), Brinegar v. United States, 338 U.S. 160, 164, 170, 175-176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949), and Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Ante, at 6. But in all of these cases, unlike Moore's case, state law authorized the arrests. The warrantless misdemeanor arrest in Atwater was authorized by Tex. Transp. Code Ann. § 543.001 (West 1999). See 532 U.S., at 323, 121 S. Ct. 1536, 149 L. Ed. 2d 549. The warrantless misdemeanor arrest [*27] in Devenpeck was authorized by Wash. Rev. Code Ann. § 10.31.100 (Michie 1997). In Brinegar, whether the warrantless arrest was for a misdemeanor or a felony, it was authorized by state law. See Okla. Stat., Tit. 22, § 196 (1941). Gerstein involved a challenge to the State's preliminary hearing procedures, not to the validity of a particular arrest. See 420 U.S., at 105, 95 S. Ct. 854, 43 L. Ed. 2d 54. The record does not indicate whether the respondents' offenses were committed in the officer's presence or whether the arrests were made under warrant. See id., at 105, n. 1, 95 S. Ct. 854, 43 L. Ed. 2d 54. But it does indicate that the crimes involved were serious felonies, see ibid., and state law authorized arrest without warrant when "[a] felony has been committed and [the officer] reasonably believes that the [apprehended] person committed it," Fla. Stat. Ann. § 901.15(2) (West 1973).


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, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (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 [*28] 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.

The Fourth Amendment, today's decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders. See ante, at 9. Because I agree that the arrest and search Moore challenges violated Virginia law, but did not violate the Fourth Amendment, I join the Court's judgment.

The plain view doctrine is typically one that apples at a home. That doctrine was conceived for when the police are serving an arrest warrant and have a right to enter the dwelling. As stlchiefs mentioned the rights to search an auto are much more broad than a search of a home.

Gotcha, my post you quoted was referring to DenverChiefs question about a person arrested for a noise ordinance violation.

Not too long and I usually enjoy reading Scalia even when its an opinion which I completely disagree with (not saying this one is). He is a hell of a writer.

Oh, sorry. I read the decision you posted, and all I have to say is that the article could have mentioned a few of those facts contained in the decision, and a lot of this could have been settled already. I suspect that the writer thought there would not have been much of a reason for the article if he/she had done that.

People who are not criminals won't have anything found in a search, will they?

And would you be ok with the necessity to carry documentation, and to produce it upon command to prove you were a citizen, and therefore able to remain in the country or out of jail?

I was thinking more along the line of say a pile of stereo equipment and the officers knew that a store had lots of stereo equipment stolen recently...so not necessarily seeing "crack" in the house but the lesser reasonable suspiction and then incident to his arrest and officer checks a serial number...I dunno it is all hypothetical and it is 4 am :)

:shrug: I love criminal law...I got my BS in Criminology and am Working on my Masters in it now...so I'm not a lawyer by any streach but I think I have a deep understanding of criminal law :shrug: I'm not too sure about this case though

well right it basically excludes all evidence of a crime obtained through and illegal search and seizure ...well isn't an unlawful arrest an illegal seizure? held to the states by the 14th amendment?

Maybe I'm mistaken here, but my interpretation is that while the arrest was unlawful according to state law, it wasn't unlawful according to the US Constitution. Since no (federal) Constitutional right was violated, no protection was offered by it.

This is my reading to. There's no federal constitutional right to be issued a citation for a traffic offense in lieu of arrest.

Since it is a right provided by the state (in this case Virginia), it's also up to them to figure out what remedy they want when it is violated. In this case it appears the the VA legislature is comfortable with civil suits as a deterrent to police misconduct in this area instead of the exclusionary rule.

I disagree with the VA legislature, but I don't disagree with the Court's decision.

This is just another example of how our rights in the US are being eroded. You people who think this is a good thing just don't get it.

I disagree, we don't have the right, in the US, to drive on suspended licenses and carry cocaine.

I haven't read it, but htis is a good summary, and shows why it was an easy 9-zip slam dunk for the SC.

Exactly. This is another point that needs made, the Defendant has a right to a civil suit against the cop for these actions. Many people may misunderstand and think the defendant is just SOL, on the criminal side this is true, but he may still get something out of this incident via a civil suit.

You're taking Crim. Pro. in your 3rd year?

Yep. I have no interest in Crim law and am taking it solely for Bar prep reasons. Crime pro 2 is being taught by BarBri :). I have a concentration in Real Estate, Land Use and Environmental Law and have steered clear of the criminal and litigation side of things.

That was a mandatory 1st year course for us. I think it's part and parcel of being a well rounded lawyer. Broadens your options anyway. Good luck finding a gig in the environmental side, that market is TIGHT. Pretty much you have to be top 10% and connected or willing to work for nothing. I looked for a year in that area before I looked for other options.

Crim law was a mandatory 1L course, Crim Pro is usually a 2 year course. Most take Crim Pro 1 in the Spring of 2L and Crim Pro 2 during their third year. I do think it's a good idea for all law students to take Crim Pro, which is why I'm taking it. I don't have as much interest in the Environ. side as I do in transactional work, specifically real estate, construction, development, etc.

Oh I see so because the VA SC used the Federal Constitution as its basis for their opinion on the unlawful arrest then the Feds became involved....otherwise the ruling of the VA SC would not be challengable in federal court

Unless your name is Paris Hilton

The VA SC ruling

*719] [**396] This appeal implicates Code § 19.2-74(A)(1). In pertinent part, this Code section HN1provides that when a police officer detains a person for a Class 1 misdemeanor, the officer "shall . . . issue a summons . . . to appear at a time and place to be specified in such summons," and "[u]pon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody." The Code section also contains several exceptions allowing a warrantless arrest pursuant to Code § 19.2-82 "if any such person shall fail or refuse to discontinue the unlawful act" or "if any person is believed by the arresting officer to be likely to disregard a summons . . . or . . . cause harm to himself or to any other person."

On February 20, 2003, two City of Portsmouth detectives, responding to a radio message that a motorist was operating a motor vehicle on a suspended license, stopped a vehicle being driven [***2] by the defendant, David Lee Moore. The officers ascertained that Moore was in fact operating on a suspended license. Although the offense is a Class 1 misdemeanor, Code § 46.2-301(C), the officers did not issue Moore a summons but arrested him, handcuffed him, and placed him in a police vehicle. They gave him the Miranda warnings and secured his signature on a consent to search his room at the hotel where he was staying. They then took him to the hotel room.

Because of a "miscommunication" between the officers, they did not search Moore at the time he was arrested. Upon reaching his hotel room, they searched his person and found approximately 16 grams of crack cocaine in his jacket pocket and $ 516.00 in cash in his pants pocket. He admitted the cocaine was his.

Moore was indicted for possession of cocaine with intent to distribute. Code § 18.2-248. He then moved to [***3] suppress all the evidence obtained in the search of his person, 2 asserting that the seizure of the evidence violated the provisions of the Fourth, Fifth, and Sixth Amendments to the Constitution of the United States.


The trial court denied the motion to suppress. In a bench trial, the court convicted Moore of possession with intent to distribute cocaine [*720] and sentenced him to serve five years in the penitentiary, with one year and six months suspended.

Moore appealed his conviction to the Court of Appeals of Virginia. A divided panel of the court reversed Moore's conviction, finding the search of Moore "in violation of the Fourth Amendment." Moore v. Commonwealth, 45 Va. App. 146, 155, 609 S.E.2d 74, 79 (2005).

However, upon rehearing en banc, a majority affirmed the [***4] conviction, finding that Moore's arrest did not violate his Fourth Amendment rights. Moore v. Commonwealth, 47 Va. App. 55, 64, 622 S.E.2d 253, 258 (2005). We awarded Moore this appeal.

On appeal, Moore argues that Code § 19.2-74 requires that the police issue a summons to a person detained for a Class 1 misdemeanor and to forthwith release him from custody upon his promise to appear at a specified time and place, unless he is subject to one or more of the exceptions listed in the statute. Moore asserts that none of the exceptions apply in this case. Moore says that [**397] "[w]hen a person is unlawfully detained, as [he] was when he was arrested rather than being given a citation, the fruits of the unlawful detention must be suppressed." Moore concludes that the Court of Appeals en banc erred in holding that his "arrest and search did not violate the Fourth Amendment."

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 The Court of Appeals found that "[b]ecause the record is devoid of any evidence to suggest Moore failed to discontinue the unlawful act, or that the facts could render a reasonable belief that Moore would fail to comply with the summons or cause harm to himself or others, . . . the arrest violated the express provisions of Code § 19.2-74." Moore, 47 Va. App. at 63, 622 S.E.2d at 257. The Commonwealth has not assigned cross-error to this finding. Accordingly, we will not consider the Commonwealth's argument that "[i]nasmuch as there was no one else to drive Moore's vehicle, the officers were within their statutory authority to arrest Moore; otherwise, he would have been unable to 'discontinue the unlawful act' of driving on a suspended license." See Commonwealth v. Cary, 271 Va. 87, 90 n.1, 623 S.E.2d 906, 907 n.1 (2006).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[***5] On the other hand, the Commonwealth argues that the search of Moore was valid. The Commonwealth maintains that "the police officers had probable cause to arrest Moore because he committed a misdemeanor in their presence," and the "search incident to an arrest . . . did not violate the Fourth Amendment."

In support of his position, Moore cites the decision of the Supreme Court of the United States in Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998), and this Court's decision in Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999).

In Knowles, an Iowa statute allowed a police officer to arrest a person for a traffic offense and immediately take him before a magistrate or to issue a citation in lieu [*721] of arrest. The statute further provided that the issuance of a citation in lieu of arrest "does not affect the officer's authority to conduct an otherwise lawful search." 525 U.S. at 115 (citing and quoting Iowa Code Ann. § 805.1(4)).

An Iowa policeman stopped Knowles for speeding and issued him a citation rather than arresting him. The officer then conducted a full search of the vehicle without [***6] either Knowles' consent or probable cause, found marijuana and a "pot pipe," and placed Knowles under arrest. Knowles moved to suppress the evidence. The trial court denied the motion and Knowles was found guilty. The Supreme Court of Iowa affirmed, upholding the constitutionality under a bright-line "search incident to citation" exception to the Fourth Amendment's warrant requirement. Id. at 115.

The Supreme Court of the United States reversed. Noting that the officer had issued Knowles a citation rather than arresting him, the Court stated that the "[t]he question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car." The Court answered the question "no." Id. at 114.

The Court explained that in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), it had recognized a search incident to arrest exception to the Fourth Amendment, which allows a full field-type search of the person incident to a lawful custodial arrest. The Court noted that the exception was based upon "two historical rationales for the 'search incident to arrest' exception: [***7] (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial." Knowles, 525 U.S. at 116. However, the Court found that "neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case." Id. at 117.

The Court also said that while the concern for officer safety in a routine traffic stop "may justify the 'minimal' additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search." Id.

The Court also said that Iowa had not shown a need to discover and preserve evidence. Id. at 118. Although asked to do so,HN2 the Court declined to extend the bright-line search incident to arrest exception to the Fourth Amendment recognized in Robinson to include a search incident to citation, a situation, the Court concluded, "where the concern for officer safety is not present to the same [*722] extent and the concern for destruction or loss of evidence is not present at all." Id. at 119. [***8]

The Commonwealth argues that Knowles is not dispositive because the defendant there was not arrested and the decision in Knowles [**398] "holds that a search incident to a citation cannot be as expansive under the Fourth Amendment as one incident to an arrest." We cannot find such a holding in Knowles. In any event, it is clear that what the Court actually held in Knowles was that the Fourth Amendment forbids expansion of the search incident to arrest exception to include a search incident to citation. Id. at 118-19.
The Commonwealth also argues that the Supreme Court's subsequent decision in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), is controlling rather than Knowles and supports its position that the officers had probable cause to arrest Moore because he committed a misdemeanor in their presence. In Atwater, a police officer observed that Gail Atwater was driving her pickup truck with her young son and daughter in the front seat, all without seat belts. This conduct was prohibited by a Texas statute providing for a fine of not less than $ 25.00 nor more than $ 50.00. Id. at 323-24. [***9]

The officer pulled Atwater over, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was placed in a jail cell for about one hour, after which she was taken before a magistrate and released on bond. She ultimately pleaded no contest to the seat belt charges and paid a $ 50.00 fine. Id. at 324.

Atwater and her husband then filed an action in state court for damages against the officer, the City of Lago Vista, and the City's chief of police, alleging that the defendants had violated Gail Atwater's Fourth Amendment rights. The action was removed to federal court. The Atwaters were unsuccessful in the lower courts, and the Supreme Court granted certiorari "to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers' authority to arrest without warrant for minor criminal offenses." Id. at 326. The Court held that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Id. at 354. [***10]

Atwater, however, provides little support for the Commonwealth's position in this case. The Texas statute "expressly authorizes 'any peace officer [to] arrest without warrant a person found committing a violation' of [the Texas] seatbelt laws, [Tex. Transp. [*723] Code Ann.] § 543.001, although it permits police to issue citations in lieu of arrest." Id. at 323. The authority to effect such an arrest is lacking from our § 19.2-74, the statute at issue in this case. Furthermore, Atwater only involved the legality of an arrest; it did not involve any question about a search incident to the arrest.

Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), the other case cited by Moore in support of his position, came to this Court upon remand from the Supreme Court of the United States. John David Lovelace had been convicted in the Circuit Court of Halifax County for possession of marijuana and possession with intent to distribute cocaine. He appealed, alleging that the trial court had erred in denying his motion to suppress evidence that was seized from him during a search of his person. The Court of Appeals [***11] of Virginia affirmed the convictions. Lovelace v. Commonwealth, 27 Va. App. 575, 500 S.E.2d 267 (1998). This Court refused Lovelace's petition for appeal and his subsequent petition for rehearing. Thereafter, the Supreme Court of the United States granted Lovelace a writ of certiorari, vacated the judgment of this Court, and remanded the case to this Court for further consideration in light of its decision in Knowles. Lovelace v. Virginia, 526 U.S. 1108, 119 S. Ct. 1751, 143 L. Ed. 2d 784 (1999).

The Lovelace case implicated Code § 19.2-74(A)(2), which provides that "[w]henever any person is detained by . . . an arresting officer for a violation . . . of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, . . . the arresting officer shall take the name and address of such person and issue a summons . . . [and] shall forthwith release him from custody."

[**399] About ten o'clock at night, two deputy sheriffs observed Lovelace and several other men standing with open bottles of beer in their hands on the parking lot of a store in an area described [***12] as an " 'open air drug market.' " Lovelace had a green bottle up to his mouth and appeared to be drinking from it. The men were ordered to lie face down on the ground after the deputies saw a bottle fly through the air and strike a car but could not see who threw it, although it came from the area where Lovelace had been standing. 258 Va. at 591, 522 S.E.2d at 857.

One of the deputies, Mike Womack, then approached Lovelace, who was lying on the ground as directed, and asked Lovelace his name. Lovelace identified himself but remained silent when asked whether he had any guns or drugs. Womack then performed a "patdown" of Lovelace and felt something like a bag in his pocket. [*724] The deputy did not know if it was a plastic bag or what but he felt some lumps and something "squooshy," and he reached into Lovelace's pocket and retrieved the bag. The officer then arrested Lovelace and charged him with possession of marijuana and possession with intent to distribute cocaine, but not with any alcohol-related offense. The substance in the bag was later tested and identified as crack cocaine. The test also identified some marijuana. Id. at 591-92, 522 S.E.2d at 857. [***13]

The Commonwealth argued in Lovelace that the officers had probable cause to arrest Lovelace for drinking an alcoholic beverage in public and thus could conduct a search incident to arrest. We disagreed, based on Knowles, and stated as follows:
The encounter between Lovelace and the officers, while not involving a traffic offense, was nonetheless similar in nature and duration to a routine traffic stop. We reach this conclusion primarily because the initial reason for detaining Lovelace was his alleged commission of a Class 4 misdemeanor for which the issuance of a summons was authorized under Code § 19.2-74(A)(2). Only if Lovelace had failed or refused to discontinue the unlawful act could the officer have effected a custodial arrest and taken the defendant before a magistrate. Code § 19.2-74(A)(2). However, there is no evidence in the record that Lovelace acted in such a manner. The fact that the officers could have issued only a summons for the alcohol-related offense also negates the Commonwealth's argument that the existence of probable cause to charge Lovelace with drinking an alcoholic beverage [***14] in public allowed Womack to search him. After Knowles,HN3 an "arrest" that is effected by issuing a citation or summons rather than taking the suspect into custody does not, by itself, justify a full field-type search.

Id. at 596, 522 S.E.2d at 860 (emphasis added). We concluded that "the search of Lovelace was not consistent with the Fourth Amendment," and we reversed and dismissed both of Lovelace's convictions. Id. at 597, 522 S.E.2d at 860.

The Commonwealth distinguishes Lovelace by saying that the police officer detained Lovelace to issue a citation and did not arrest him, give him the Mirandawarnings, or inform him he was under arrest while, in Moore's case, he was placed under arrest and thus the [*725] officers "did not exceed their authority when they conducted the search" of Moore.

This is a distinction that makes no difference. While Lovelace was not actually arrested until after Officer Womack retrieved the "squooshy" bag from his pocket, Womack insisted in his testimony that, initially, he was "detaining the defendant because of the open containers of beer, the bottle-throwing incident, and the odor of alcohol that he noticed [***15] when speaking with Lovelace," id. at 592, 522 S.E.2d at 857, facts indicative of the Class 4 misdemeanor of drinking in public. Code § 4.1-308. It was the type of offense for which Womack was detaining Lawrence that triggered the operation of Code § 19.2-74 and permitted Womack to issue only a summons to Lovelace since none of the statute's exceptions were present. Because Womack was authorized to issue only a summons for the alcohol-related offense, he could not lawfully conduct a full field-type search incident to an arrest. Lovelace, 258 Va. at 596, 522 S.E.2d at 860.

The same conclusion applies to the case at bar. Our statement in Lovelace could have [**400] equally been written using Moore and his charged offense: "The fact that the officers could have issued only a summons for the [driving on suspended license] offense also negates the Commonwealth's argument that the existence of probable cause to charge [Moore] with [driving on suspended license] allowed [the officer] to search him." Id.

The officers were authorized to issue only a summons to Moore for the offense of operating [***16] a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore.

Reversed and dismissed.