Moore v. Virginia and Search in Violation of State Law

A unanimous Supreme Court held today that when police 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. Though the "rule" of the case can be expressed fairly easily, the result of the case, though unanimously decided, has a troubling feature. In short, the troubling feature is that the arrest was made contrary to state law. The Court, with Justice Scalia writing for it, downplayed this as a small and inconsequential fact of the case. This summary will follow the flow of Justice Scalia's argument.

A Few Facts--and The Argument

As you may recall, Mr. Moore was driving with a suspended driver's license and was pulled over for that offense. This is a misdemeanor under VA law, but is nevertheless a crime (crimes include both felonies and misdemeanors). The officers took Moore into custody but did not search him until they returned him to his hotel room. On his person were several grams of cocaine. The officers violated state law by arresting him for this misdemeanor; they should have issued a summons to him instead. During the course of the arrest, then, he was searched and the cocaine was found. Had the officers done everything "lawfully," the cocaine in all probability would never have been discovered.

Crucial to the Court's determination that the search of Moore didn't violate the Fourth Amendment, and that it was a valid search incident to arrest were other cases holding that a search in violation of state law was permissible if it was a search allowed under the Fourth Amendment. Justice Scalia wrote:

"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 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, 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. “[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. 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."

I have to stop here for a moment to clarify something for myself. If it is true, as the first quotation seems to suggest, that states may pass search & seizure law that gives more protection than the federal constitution, but then the Supreme Court can say that the Fourth Amendment rules, what is the point of states trying to pass legislation providing greater protections? If the Fourth Amendment is not simply a "floor" of protection but is the entire room, why even have state search law? It seems that this is the direction that the Justice's argument is going. He then reiterated the theme:

"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. 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 “[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. 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 protections concerning search and seizure remain the same."

Does Justice Scalia's last sentence make much sense to you? Why would a state "go above" the Fourth Amendment if the Fourth Amendment is the great leveller?

Search Incident to Arrest

Once the Court decided that it is quite all right for an officer to violate state law in making a search even though that search wouldn't violate the Fourth Amendment, the only other question to resolve is whether the search fit into an existing category of permissible searches under the Fourth Amendment. Did Moore's search fit one of those exceptions?

"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 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 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, 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, 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."

So, did this search safeguard evidence or secure the officers' safety? I guess the only evidence it safeguarded was that which was uncovered as a result of the search--Moore's drugs. I didn't read anything in the opinion that suggested that the search did these two things.

Conclusion

Almost always when you have Justice Scalia writing the majority opinion on an area of criminal law, you get a criminal convicted. That is also true in this case. I think the case seems to sweep rather widely. Justice Ginsburg did, too, and she expressed her concern in a concurring opinion. Perhaps it is our "war on drugs" that permits us to allow such wide-ranging searches. I don't know anyone who believes, however, that we are winning that "war".....

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