Virginia v. Moore

Most of what I’ve heard since this USSCT opinion was released is that the 4th Amendment has once again been eviscerated, this is the end of the Fourth Amendment, etc.
I think the opinion makes sense. Mostly. The opinion broadens police searches, it is favorable to the government, and I don’t like it. I think it should have been decided differently; but, nevertheless, it makes sense and it was a practical decision. I choose to believe that our Supreme Court is trying to be practical, and not, despite evidence to the contrary, that they are trying to finally do away with the Fourth Amendment.
The issue in the case was whether a police officer violated the Fourth Amendment by making an arrest based on probable cause but prohibited by State law, and the Court’s unanimous answer was no. Breaking down the issue further:
Does the Fourth Amendment permit searches incident to citation (as opposed to arrest)? No.
Does the Fourth Amendment permit search incident to arrest when there is no probable cause for arrest? No. At Scalia’s request, we are going to have to ignore the question of how there can possibly be probable cause for an arrest when the law does not authorize an arrest. Well, let’s rephrase it for him so it makes some kind of sense – there must be probable cause that a crime was committed, but not necessarily probable cause for arrest.
Does the Fourth Amendment permit search incident to arrest when there is probable cause for arrest (probable cause that a crime has been committed) but State law permits citation only? Apparently it does.
Why it makes sense:


I believe the reasoning behind the opinion is that this rule will allow for greater uniformity in application of the Fourth Amendment. The Court could have said that, written a few paragraphs in support of it, and been done with it. The Court holds that warrantless arrests for crimes committed in the presence of an officer are reasonable under the constitution. States are free to regulate arrests in any way that they want, but State restrictions on arrest do not alter the Fourth Amendment’s protections. Linking Fourth Amendment protections to state law would cause them to vary from place to place and from time to time; for example where state law restricts the arrest powers of state officers, the Constitution would restrict state officers more so than federal officers, although they are in the same place. The rule set out in Moore provides uniformity in the application of the Fourth Amendment, between federal and state officers, and from one State to another.
The Court affirms that under Knowles v. Iowa, 525 U.S. 113 (1998), officers issuing a citation do not have authority to search, but in this case the officers made an arrest, therefore the policies outlined in U.S. v. Robinson, 414 U.S. 218 (1973) apply, that the search incident to arrest enables officers to safeguard evidence and to ensure the officers’ safety. It does not matter if the arrest was illegal under State law, because it was a warrantless arrest for a crime committed in the presence of an officer, and therefore the U.S. Constitution allowed the arrest. The Court says it is not the province of the Fourth Amendment to enforce State law, and the Fourth Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. Makes sense I guess.
Why it causes concern:
Apparently, if I commit the crime of speeding 1 mph over the speed limit, in the presence of an officer, he can choose to arrest me, whether or not State law allows it, then search me and my car and the Fourth Amendment will not provide any protection because this is a reasonable search and/or seizure?
There is language in the opinion that seems to indicate that the Fourth Amendment only protects against those harms that were envisioned at the time of the passing of the Fourth Amendment. I think this is the language that causes people the most concern. Taken literally, this opinion would dictate that the only things that the Fourth Amendment protects against were those found in the “general warrants and writs of assistance that English judges had employed against the colonists.”
The Court says that the fourth amendment is not a “redundant guarantee of whatever limits on search and seizure legislatures may have enacted. 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 . . . 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.”
The Court’s use of Virginia’s law to justify their decision:
The short version of the facts of the case are that Moore was pulled over and arrested for driving under suspension (DUS). He was then searched incident to arrest and cocaine was found. Under Virginia law, DUS is an arrestable offense only under certain circumstances which were not present in this case. The officers were permitted only to issue a citation, not arrest Moore. However, Virginia law does not allow for the exclusion of evidence obtained in violation of statutes.
The Court reasons that, because Virginia has chosen to provide greater protection against arrest by permitting citation only for a DUS offense, if the Fourth Amendment and the exclusionary rule apply the Court would be forcing Virginia to abandon their restrictions on arrest in order to continue disallowing the exclusionary rule. So, by this tortured logic they are actually providing a greater protection to Virginia citizens by not forcing Virginia to change their arrest laws. I am sure that the citizens of Virginia are grateful for this.
Di Re:
The Court spends a good bit of time trying to reconcile its decision with Di Re, 332 U.S. 581 (1948), rather than simply overruling it. Di Re basically said 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. The Moore Court then explains that the Di Re rule was not derived from the Constitution, because they repeatedly invited Congress to change the Di Re rule by statute – the Di Re Court stated that State law governs the validity of a warrantless arrest in the absence of a federal statute, and the Di Re rule applies except in those cases where Congress has enacted a federal rule.
Di Re dealt with the collaboration of federal and state officers, but it was ultimately an arrest for a federal crime. A federal arrest statute was enacted 8 years after the Di Re decision. Wolf v. Colorado, 338 U.S. 25 (1949) applied the Fourth Amendment to the States, and was not decided until a year after Di Re. Mapp v. Ohio, 367 U.S. 643 (1961), applying the exclusionary rule to the States, came much later.
The point is that, at the time that Di Re was decided, the Court needed a standard by which to determine the lawfulness of arrests. Arrest law was statutory, and in the absence of a federal statute the court would look to the State’s statutes. But the Fourth Amendment and the exclusionary rule applied only to federal arrests at the time and Congress needed only create a federal statute to make the federal arrest law uniform.
Since the application of the Fourth Amendment and the exclusionary rule to the States in Wolf and Mapp, there is no single standard by which to determine whether an arrest is lawful or unlawful. It depends on many circumstances, including what state you are in and whether it is a state or federal officer making the arrest. Taking all of this into consideration, the Court’s decision in Moore makes some sense, in that it should greatly simplify the application of the Fourth Amendment in unlawful arrest scenarios, and provides for uniformity among states and between state and federal officers.

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