Virginia v. Moore

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

VIRGINIA v. MOORE

CERTIORARI TO THE SUPREME COURT OF VIRGINIA

No. 06–1082. Argued January 14, 2008—Decided April 23, 2008

Rather than issuing the summons required by Virginia law, police ar-

rested respondent Moore for the misdemeanor of driving on a sus-

pended 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, reason-

ing that the search violated the Fourth Amendment because the ar-

resting 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 our society ever since,’ ” Atwater v.

Lago Vista, 532 U. S. 318, 345. 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 in-

trudes upon an individual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate governmental in-

terests.” Wyoming v. Houghton, 526 U. S. 295, 300. 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. This Court’s de-

cisions counsel against changing the calculus when a State chooses to

2 VIRGINIA v. MOORE

Syllabus

protect privacy beyond the level required by the Fourth Amendment.

See, e.g., Whren v. United States, 517 U. S. 35. United States v. Di

Re, 332 U. S. 581, 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 investigation. A State’s choice of a more restrictive

search-and-seizure policy does not render less restrictive ones unrea-

sonable, and hence unconstitutional. While States are free to require

their officers to engage in nuanced determinations of the need for ar-

rest as a matter of their own law, the Fourth Amendment should re-

flect 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 Constitu-

tion allowed his arrest, it did not allow the arresting officers to

search him. Officers may perform searches incident to constitution-

ally permissible arrests in order to ensure their safety and safeguard

evidence. United States v. Robinson, 414 U. S. 218. While officers is-

suing citations do not face the same danger, and thus do not have the

same authority to search, Knowles v. Iowa, 525 U. S. 113, 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. Pp. 11–13.

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

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.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–1082

_________________

VIRGINIA, PETITIONER v. DAVID LEE MOORE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[April 23, 2008]

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 sub-

sequently searched Moore and found that he was carrying

16 grams of crack cocaine and $516 in cash.1 See 272 Va.

——————

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

2 VIRGINIA v. MOORE

Opinion of the Court

717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d

74 (2005).

Under state law, the officers should have issued Moore a

summons instead of arresting him. Driving on a sus-

pended 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 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. 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 (Annun-

ziata, J., dissenting). Moore argued, however, that sup-

pression 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 Amend-

ment grounds, id., at 149–150, 609 S. E. 2d, at 76, rein-

stated by the intermediate court sitting en banc, 47 Va.

——————

they searched his person there. Ibid. Moore does not contend that this

delay violated the Fourth Amendment.

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

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 arrest-

ing officers should have issued Moore a citation 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. ___ (2007).

II

The Fourth Amendment protects “against unreasonable

searches and seizures” of (among other things) the person.

In determining whether a search or seizure is unreason-

able, 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 (1999); Wilson v.

Arkansas, 514 U. S. 927, 931 (1995).

We are aware of no historical indication that those who

ratified the Fourth Amendment understood it as a redun-

dant 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 war-

——————

2 Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view

JUSTICE GINSBURG advances that the legality of arrests for misdemean-

ors involving no breach of the peace “depended on statutory authoriza-

tion.” 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. 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. Particularly since Atwater considered the materials on

which JUSTICE GINSBURG relies, we see no reason to revisit the case’s

conclusion.

4 VIRGINIA v. MOORE

Opinion of the Court

rants and writs of assistance that English judges had

employed against the colonists, Boyd v. United States, 116

U. S. 616, 624–627 (1886); Payton v. New York, 445 U. S.

573, 583–584 (1980). That suggests, if anything, that

founding-era citizens were skeptical of using the rules for

search and seizure set by government actors as the index

of reasonableness.

Joseph Story, among others, saw the Fourth Amend-

ment as “little more than the affirmance of a great consti-

tutional doctrine of the common law,” 3 Commentaries on

the Constitution of the United States §1895, p. 748 (1833),

which Story defined in opposition to statutes, see Codifica-

tion 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 consti-

tutional 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).

Of course such a claim would not have been available

against state officers, since the Fourth Amendment was a

restriction only upon federal power, see Barron ex rel.

Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But

early Congresses tied the arrest authority of federal offi-

cers to state laws of arrest. See United States v. Di Re,

——————

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 Amend-

ment was adopted shed light on what citizens at the time of the Amend-

ment’s enactment saw as reasonable. Boyd v. United States, 116 U. S.

616, 622–623 (1886).

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

332 U. S. 581, 589 (1948); United States v. Watson, 423

U. S. 411, 420 (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 viola-

tions also ran afoul of the state constitutions.4 The appar-

ent 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).

There are a number of possible explanations of why such

constitutional claims were not raised. Davies, for exam-

ple, 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 (2001) (altera-

tion in original).

——————

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 in the

Commonwealth did not argue that their arrests violated the Common-

wealth’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 (1849) (asserting violation of state common law concerning

arrest but not asserting violation of state constitution).

6 VIRGINIA v. MOORE

Opinion of the Court

III

A

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 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; see also Atwater, 532 U. S., at

346. That methodology provides no support for Moore’s

Fourth Amendment claim. In a long line of cases, we have

said that 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; see

also, e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004);

Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v.

United States, 338 U. S. 160, 164, 170, 175–176 (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 (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 irrele-

vant. 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 (1988), we held

that search of an individual’s garbage forbidden by Cali-

fornia’s Constitution was not forbidden by the Fourth

Amendment. “[W]hether or not a search is reasonable

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

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.

We have applied the same principle in the seizure con-

text. Whren v. United States, 517 U. S. 806 (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 it obvious that the Fourth Amendment’s

meaning did not change with local law enforcement prac-

tices—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.

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,

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. 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.

This was plainly not a rule we derived from the Constitu-

tion, however, because we repeatedly invited Congress to

change it by statute—saying that state law governs the

validity of a warrantless arrest “in [the] absence of an

applicable federal statute,” id., at 589, and that the Di Re

rule applies “except in those cases where Congress has

8 VIRGINIA v. MOORE

Opinion of the Court

enacted a federal rule,” id., at 589–590.

Later decisions did not expand the rule of Di Re. John-

son v. United States, 333 U. S. 10 (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

(1979), upheld a warrantless arrest in a case where com-

pliance 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, dis-

cussed above, have indicated that when States go above

the Fourth Amendment minimum, the Constitution’s

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; Atwater, supra, at 354.

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 investiga-

tion. 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

Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

offense, and enable officers to investigate the incident

more thoroughly. State arrest restrictions are more accu-

rately 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 Insti-

tute of Justice, D. Whitcomb, B. Lewin, & M. Levine,

Issues and Practices: Citation Release 17 (Mar. 1984)

(describing cost savings as a principal benefit of citation-

release ordinances); or as showing that the State places a

higher premium on privacy than the Fourth Amendment

requires. 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 pro-

tect 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 viola-

tions. 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. Common-

wealth, 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 Amend-

ment violations, which often include 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

10 VIRGINIA v. MOORE

Opinion of the Court

Amendment, we would adhere to the probable-cause stan-

dard. 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. 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. The rule extends even to minor misde-

meanors, 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 legitimate arrests. Id., at 351. We

found little to justify this cost, because there was no “epi-

demic of unnecessary minor-offense arrests,” and hence “a

dearth of horribles demanding redress.” Id., at 353.

Incorporating state-law arrest limitations into the Con-

stitution 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.”

Cite as: 553 U. S. ____ (2008) 11

Opinion of the Court

532 U. S., at 346–347. It nonetheless declined to make

those considerations part of the constitutional calculus.

Atwater differs from this case in only one significant re-

spect: 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. 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 (1960), we noted the practi-

cal 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

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 warrantless arrests for crimes com-

mitted in the presence of an arresting officer are reason-

able under the Constitution, and that while States are free

to regulate such arrests however they desire, state restric-

tions 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 officers may perform

searches incident to constitutionally permissible arrests in

12 VIRGINIA v. MOORE

Opinion of the Court

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 justifi-

cation.” 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.

The interests justifying search are present whenever an

officer makes an arrest. A search enables officers to safe-

guard 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. Officers issuing

citations do not face the same danger, and we therefore

held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do

not have the same authority to search. We cannot agree

with the Virginia Supreme Court that Knowles controls

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.

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

Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

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 (1963). But the

arrest rules that the officers violated were those of state

law alone, and as we have just concluded, it is not the

province of the Fourth Amendment to enforce state law.

That Amendment does not require the exclusion of evi-

dence obtained from a constitutionally permissible arrest.

* * *

We reaffirm against a novel challenge what we have

signaled for more than half a century. 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. 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.

Cite as: 553 U. S. ____ (2008) 1

GINSBURG, J., concurring in judgment

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–1082

_________________

VIRGINIA, PETITIONER v. DAVID LEE MOORE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

VIRGINIA

[April 23, 2008]

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

(1948), requiring suppression of evidence gained in a

search incident to an unlawful arrest, seems to me pinned

——————

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] 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 (2001)

(noting 19th-century decisions upholding statutes extending war-

rantless 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 VIRGINIA v. MOORE

GINSBURG, J., concurring in judgment

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 rea-

sonable,” ante, at 6.3

I agree with the Court’s conclusion and its reasoning,

however, to this extent. In line with the Court’s decision

——————

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 not mention “supervisory

power,” placed the decision in a Fourth Amendment context, see 332

U. S., at 585, and ended with a reminder that “our Constitution [places]

obstacles in the way of a too permeating police surveillance,” id., at 595.

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.

3 Demonstrative of the “long line,” the Court lists Atwater, 532 U. S.,

at 354, Devenpeck v. Alford, 543 U. S. 146, 152 (2004), Brinegar v.

United States, 338 U. S. 160, 164, 170, 175–176 (1949), and Gerstein v.

Pugh, 420 U. S. 103, 111 (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. The warrantless

misdemeanor arrest 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. 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. 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).

Cite as: 553 U. S. ____ (2008) 3

GINSBURG, J., concurring in judgment

in Atwater v. Lago Vista, 532 U. S. 318, 354 (2001), Vir-

ginia 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 in part. He emphasizes Vir-

ginia’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 sum-

mons-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 vio-

lated Virginia law, but did not violate the Fourth Amend-

ment, I join the Court’s judgment.