Virginia v. Moore and Fourth Amendment Search Law

This case relates to a very practical problem: how far can law enforcement officers go in searching your person, your car, your residence when you have committed a minor traffic violation? The problem behind this question in this particular case is that it implicates both the Fourth Amendment to the US Constitution (prohibiting unreasonable searches and seizures) and a provision of Virginia law. Much of search law is "federalized," even though most criminal law is "state law." It is the problem of potentially conflicting laws or constitutional provisions between a state (Virginia) and the US Constitution that is at issue in this case. Here are the relevant facts:

Important Facts

On Feb. 20, 2003, two Portsmouth, VA police detectives stopped David Lee Moore after they observed him driving with a suspended license. The officers did not issue him a summons to appear in court but rather arrested him, handcuffed him, and placed him in a police vehicle. They read him his Miranda warnings and got his signature to search his hotel room. Then, at his hotel room, the officers decided to search his person and found approximately 16 grams of crack cocaine in his jacket pocket. He was indicted for possession with intent to distribute the cocaine. The major issue at his trial and series of appeals was whether the officers had violated state law (or the US Constitution) in making this search. The trial court said that his search was legal, and Moore was convicted of possession with intent to distribute cocaine and sentenced to serve five years in the pen. Ultimately the Virginia Supreme Court unanimously reversed this decision (636 SE2d 395 (VA, 2006)), holding the search illegal. So, you see, it is quite important to determine if a search is legal.

Virginia Law

Well, what does Virginia law say about traffic stops? In pertinent part, Code sec. 19.2-74(A)(1) says that when a police officer detains a person for a Class I misdemeanor (and driving with a suspended license is such a misdemeanor), the officer:

"shall...issue a summons..to appear at a time and place to be specified in such summons....Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody."

Well, does it appear to you that the police officers violated the law? Doesn't it say that in such a misdemeanor context the officers "shall" issue a summons and then let the guy go? There are exception to this statute, as there are to many criminal laws. An officer may proceed to search a person if s/he doesn't have a warrant:

"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."

No one contends that Moore fits into these exceptions.

Much as I would like you to do so, you don't have to take my word for it that Moore didn't violate the Virginia law. Listen to the brief to the US Supreme Court filed by the State of Virginia.

"In the case at bar, it is undisputed that the arresting officers had probable cause to arrest, but that the arrest violated a state statute."

So, the state admits that their officers violated state law. You must be thinking now, "Why on earth would this case make it to the Supreme Court if even the state admits that their officers screwed up?" Actually, it was precisely this point that was the stumbling block for the Virginia Supreme Court--because the officers violated state law, the search of Mr. Moore was illegal. Case dismissed.

What The State Of Virginia is Up To

With amicus (friend-of-the-Court) briefs flowing in now from state departments of justice all over the country, Virginia now argues that even though the arrest violates state law that it doesn't violate the US Constitution. Virginia's point is that the Fourth Amendment allows search incident to arrest if the officers had probable cause to arrest in the first place. The state argues that under two Supreme Court cases (see below), such a search incident to arrest is legal.

I will say a word about those cases in a second. First, though, we should pause for more than a moment on the issue. Is it a good idea to allow states to have laws that appear to give more protection to its citizens and then, when the citizen tries to appeal to these laws, say, "Oops, law doesn't apply to you, buddy, because our law violates the US Constitution"? Isn't this like saying to a consumer who buys an item for $100 because that is what the price tag says, "Nope, buddy, that really costs $500. Screw the price tag." Would any business survive if it started doing this? So, why does a state think it can get away with this?

The Cases

If you are curious, the three cases (two US Supreme Court and one Virginia Supreme Court) are the Knowles case (525 US 113 (1998); the Atwater case (532 US 318 (2001)), and the Lovelace case (522 SE2d 856 (VA 1999). I don't have time to go into each of them, but let me say one thing about Knowles. The Virginia Supreme Court, in its opinion in this case, argued that even if you can ignore state law (which probably isn't a good thing), the Knowles case (which came out of Iowa) wouldn't allow the officers to do what they did to Moore. The US Supreme Court said in Knowles that a search incident to arrest, where you don't need a warrant to comply with the Fourth Amendment, was proper only in two instances: (1) where there was a need to disarm the subject in order to take him into custody; or (2) where there was a need to preserve evidence for later use at trial.

Applying this holding of Knowles to the facts in Moore, the Virginia Supreme Court held that Moore was a proper and limited extension of Knowles. Of course, the Virginia AG disagrees--but that is why there is a case.

Conclusion

So, even though this case concerns what lawyers call the "search incident to arrest" doctrine under the Fourth Amendment, I think the larger issue is whether we ought to allow states blithely to admit that their laws, which give more protection to citizens, shouldn't apply when it fits their fancy. What do you think?

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