Amicus Curiae Brief — Virginia v. Moore

ve FILED

MAR 7 ~ 2007

Z OFFICE OF THE

® SUPREME COURT US

No. 06-1082 i

In the

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

v.

DAVID LEE MOORE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

BRIEF OF TEXAS, ARKANSAS, COLORADO, IDAHO, IOWA,

MAINE, MICHIGAN, NEW HAMPSHIRE, OREGON, PUERTO

Rico, SOUTH CAROLINA, SOUTH DAKOTA, UTAH, AND

WYOMING AS AMICI CURIAE ON BEHALF OF PETITIONERS

GREG ABBOTT R. TED CRUZ

Attorney General of Texas Solicitor General

Counsel of Record

KENT C. SULLIVAN

First Assistant Attorney SUSANNA DOKUPIL

General Assistant Solicitor General

DAVID S. MORALES P.O. Box 12548 (MC 059)

Deputy Attorney General Austin, Texas 78711-2548

for Litigation (512) 936-1700

COUNSEL FOR AMICI CURIAE

{Additional counsel listed on inside of cover)

DUSTIN MCDANIEL

Attorney General for Arkansas

JOHN W. SUTHERS

Attorney General for Colorado

LAWRENCE G. WASDEN

Attorney General for Idaho

TOM MILLER

Attorney General for lowa

STEVEN ROWE

Attorney General for Maine

MICHAEL A. COx

Attorney General for Michigan

KELLY A. AYOTTE

Attorney General for New Hampshire

HARDY MYERS

Attorney General for Oregon

ROBERTO A. SANCHEZ-RAMOS

Secretary of Justice for Puerto Rico

HENRY MCMASTER

Attorney General for South Carolina

LAWRENCE E. LONG

Attorney General for South Dakota

MARK L. SHURTLEFF

Attorney General for Utah

PATRICK J. CRANK

Attorney General of Wyoming

i

QUESTION PRESENTED

Does the United States Constitution require the

suppression of evidence obtained when a police officer

makes an arrest based upon probable cause, if the arrest

violates a provision of state law?

ii

TABLE OF CONTENTS

I ys 5 ee eae aes

I OI EE DN Hn oe

Il.

The Court Has Not Decided Whether a

Violation of State—Not Federal—Law

Regulating Arrests Renders an Otherwise-

Lawful Search Incident to That Arrest

I 3 erates dante ee wa

The Majority of State Supreme Courts and

Federal Circuit Courts That Have

Considered This Question Have Concluded

That States Cannot Create a Fourth-

Amendment Violation Through State Arrest

I iv 8664:4 os ended Meee veseees

State Supreme Courts in California,

Colorado, Maine, Michigan, Nevada,

North Carolina, and Ohio Have Deferred

to Federal Constitutional Law to Define

Fourth Amendment Rights ...........

ill

B. The First, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Tenth, and Eleventh

Circuits Have All Refused to Allow State-

Law Violations to Render Illegal

Otherwise-Lawful Conduct Under

I Sg oS eee sa 9

C. The Ninth Circuit, the District of

Columbia Circuit, and the Virginia

Supreme Court Conflict with the

Majority, Holding That State-Law

Violations Create Fourth Amendment

Violations ..... Sr Pre reer eae 14

III. States Will Benefit From a Clear

Determination of Their Powers and

EE 6 a 50640 sand bee e ee es 16

a ald ae A 18

iv

TABLE OF AUTHORITIES

Cases

Abbott v. City of Crocker,

30 F.3d 994 (CA8 1994) ........... ccc eee ees 13

Anderson v. Haas, 341 F.2d 497 (CA3 1965) ....... 12

Arkansas v. Sullivan, 532 U.S. 769 (2001) ......... 2

Atwater v. City of Lago Vista,

ns see ckee ns babeekeeuus 4

Barnett v. United States,

525 A.2d 197 (CADC 1987) ............... 15, 16

Bingham v. City of Manhattan Beach,

341 F.3e GSO (CAD BOGS) ow cc cece cccccvccens 15

Brinegar v. United States,

ee es ED gk vn das oA veeseteneeenees 16

California v. Greenwood, 486 U.S. 35 (1988) ........ 5

California v. McKay, 41 P.3d 59 (Cal. 2002) ...... 6,7

Colorad v. Hamilton,

fs 8 (> % eee 7

Commonwealth v. Moore, 622 S.E.2d 253

(Va. Amp. S005) (om DOME)... wc cc cccccceccccess 3

Commonwealth v. Moore,

636 S.E.2d 395 (Va. 2006) ............... 4,6,14

Cooper v. California, 386 U.S. 58 (1967) ........... 3

Elkins v. United States, 364 U.S. 206(1960) .... 5,16

Gordon v. Degelman, 29 F.3d 295 (CA7 1994) ...... 12

Knight v. Jacobson, 300 F.3d 1272 (CA11 2002) ..... 13

Knowles v. Iowa, 525 U.S. 113 (1998) ........... 3,4

Maine v. Jolin, 639 A.2d 1062 (Me. 1994) .......... 7

Michigan v. DeFillippo, 443 U.S. 31 (1979) ..... 3-5, 15

Michigan v. Hamilton, 638 N.W.2d 92 (Mich.)

(per ¢uriam), overruled on other grounds by

Bright v. Ailshie, 641 N.W.2d 587 (Mich. 2002)... 7

Nevada v. Bayard, 71 P.3d 498 (Nev. 2003) ........ 8

New Mexico v. Bricker,

134 P.3d 800 (N.M. App. 2006) ................ 9

North Carolina v. Eubanks,

196 8.E.2d 706 (N.C. 1973) ..............e000- 8

Ohio v. Droste, 697 N.E.2d 620 (Ohio 1998) ........ 8

Oregon v. Haas, 429 U.S. 714 (1975) .............. 2

vi

Oregon v. Rodriguez, 854 P.2d 399 (Or. 1993)....... 8

Pasiewicz v. Lake County Forest Preserve,

a EE ED Sic ce ccccosoncecsceves 12

Street v. Surdyka, 492 F.2d 368 (CA4 1974) ....... 12

United States v. Bell, 54 F.3d 502 (CA8 1995) ... 9,10

United States v. Di Re, 332 U.S. 581 (1948) ..... 5, 15

United States v. Le,

173 F.3d 1258 (CA10 1999) .............+44.. 11

United States v. Lewis, 183 F.3d 791 (CA8 1999)... 11

United States v. Mota,

ee ee Oe GA BOE oc ccccccccccreccess 14

United States v. Robinson, 414 U.S. 218 (1973) ..... 3

United States v. Van Metre,

BED Fe re Cae BED ow ccc cccccccccccces 10

United States v. Walker,

GEE ED . pov co cvecseseseveees 10

United States v. Wright,

16 F.3d 1429 (CAG 1994) .............06.- 10, 11

Vargas-Badillo v. Diaz-Torres,

EE 6s se det Ga eee enees 11,12

vii

Statutes, Rules, and Constitutional Provisions

LEY Sc cindndhsdateevacletecheetenes

INTEREST OF AMICI

The amici States appear as amici curiae in support of

Petitioner, Commonwealth of Virginia. SUP. CT. R. 37.4.

The amici States have a significant interest in this case

because each State has the authority to regulate its own

law enforcement, so long as its laws comply with the

federal Constitution. Although States may individually

choose to go beyond the federal Constitution’s

requirements for regulating searches, seizures, and

arrests, the amici States all have an interest in a clear

articulation of their ability to determine their own

penalties for such regulations.

SUMMARY OF ARGUMENT

This case concerns the States’ authority to regulate

arrests and their corresponding responsibility to define

their own remedies. The overwhelming majority of state

supreme courts and federal circuit courts to consider the

issue have concluded that, where an officer has probable

cause to arrest but violates some provision of state law in

making that arrest, any state-law illegality does not

implicate the federal Constitution. The Supreme Court of

Virginia in the opinion below joined the Ninth and District

of Columbia Circuits in finding that state law forms a

basis for determining the reach of the Fourth

Amendment—when state law is violated, the minority rule

holds that the federal Constitution itself provides the

remedy. This case presents a serious conflict among the

lower courts that should be resolved.

2

ARGUMENT

I. THE CouRT HAS Not DECIDED WHETHER A VIOLATION

OF STATE—NOT FEDERAL—LAW REGULATING ARRESTS

RENDERS AN OTHERWISE-LAWFUL SEARCH INCIDENT TO

THAT ARREST UNCONSTITUTIONAL.

The Court has clearly stated that the Fourth

Amendment allows a search incident to a lawful arrest

and that the Constitution—not state law—determines the

reasonableness of a search; the Court has not, however,

addressed whether a violation of a mere state-law rule

requires a remedy rooted in the federal Constitution. As

a result, a conflict has developed in the lower courts.

The Court has also held that when state law creates

greater protections than those afforded by the federal

Constitution, these protections are a matter of state law,

not federal law. Arkansas v. Sullivan explained that,

“while a State is free as a matter of its own law to impose

greater restrictions on police activity than those this Court

holds to be necessary upon federai constitutional

standards, it may not impose such greater restrictions as

a matter of federal constitutional law when this Court

specifically refrains from imposing them.” 532 U.S. 769,

772 (2001) (per curiam) (quoting Oregon v. Haas, 420 US.

714, 719 (1975)) (internal quotation marks omitted)

(emphasis in original).

Moreover, state-law authorization for police activity is

not by itself determinative of that activity’s

constitutionality: “Just as a search authorized by state

law may be justified as a constitutionally reasonable one

under [the Fourth A]mendment, so may a search not

expressly authorized by state law be justified as a

3

constitutionally reasonable one.” Cooperv. California, 386

U.S. 58, 61(1967). Indeed, “when such state standards

[imposing higher standards than required by the federal

Constitution] alone have been violated, the State is free,

without review by us, to apply its own state... rule to

such errors of state law.” Id., at 62 (emphasis added).

Therefore, the relevant federal question is not whether the

search violated state law, but whether the search was

constitutionally reasonable in and of itself.

A search incident to an arrest based on probable cause

is plainly constitutional under the Fourth Amendment. “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 .” United States

v. Robinson, 414 U.S. 218, 235 (1973) (emphasis added);'

Commonwealth v. Moore, 622 S.E.2d 253, 259 (Va. App.

2005) (en banc); see also Michigan v. DeFillippo, 443 U.S.

31, 35 (1979) (“The fact of a lawful arrest, standing alone,

authorizes a search.”).

To be sure, Knowles v. Iowa, 525 U.S. 113 (1998),

found that a search of a car incident to a traffic stop for

speeding was not constitutional under the Robinson rule.

Id., at 114. But Knowles does not address the question at

issue here. Although the Iowa statute, as interpreted by

Iowa courts, clearly authorized a full search incident to a

traffic citation, Knowles was not in fact under arrest at

1. Although Robinson specifically declined to address

whether a search incident to a traffic citation would be

appropriate, 414 U.S., at 257 n.6, Moore was under arrest when

the search in question occurred.

4

the time of the search—he was arrested afterwards. Id.,

at 116-18. TheKnowles Court found that a traffic citation

could not support a full incident search in the same way

that a custodial arrest would have done. See id., at 116-

18. But in the instant case, police—rightly or

wrongly—had already placed Moore under arrest before

the challenged search occurred. Commonwealth v. Moore,

636 S.E.2d 395, 396 (Va. 2006). Thus, Knowles is not on

point. Knowles addresses only the constitutionality of a

full search incident to a mere traffic citation—not a search

incident to arrest as at issue here.

Moreover, in Atwater v. City of Lago Vista, 532 U.S.

318 (2001), this Court upheld a statute that allowed a

warrantless arrest for a misdemeanor in an instance in

which officers had probable cause. Id., at 325-26, 354.

Significantly, the Atwater Court noted that “[i]f an officer

has probable cause to believe that an individual has

committed even a very minor offense in his presence, he

may, without violating the Fourth Amendment, arrest the

offender.” Id., at 354. In Moore, precisely such a belief

caused the officer to arrest Moore—police suspected he

was driving with a suspended license. Moore, 636 S.E.2d,

at 396. Thus, the very type of arrest that violated Virginia

law in Moore was constitutional in Atwater. Although

Atwater was silent as to whether a search incident to that

arrest would be constitutional, the Robinson rule indicates

that if the arrest was constitutional, the search would be

likewise constitutional. Cf DeFillippo, 443 U.S., at 40

(declining to suppress evidence obtained in a search

5

pursuant to an arrest under an ordinance that was later

found unconstitutional).”

Thus, this Court has never directly decided the

question of whether the Constitution requires suppression

when an officer has probable cause to arrest, yet the arrest

violates a state law. Lower courts would benefit from that

clarification.

2. DeFillippo noted in dictum that “[w|hether an officer is ~

authorized to make an arrest ordinarily depends, in the first

instance, on state law.” 443 U.S., at 36. YetDeFillippo did not

present the question of an arrest pursuant to a state-law

violation. Id., at 36 (“Respondent does not contend .. . that the

arrest was not authorized by Michigan law.”). Rather, the case

turned on the presence of probable cause, which is not disputed

here. Id., at 37-40. Similarly, United States v. Di Re, 332 U.S.

581, 593-95 (1948), suppressed the fruits of a search incident to

an arrest that violated a New York statute, but that case has

since been implicitly overruled. The Court has later squarely

neld that state-law authorization to arrest is not the

determining factor for constitutional reasonableness. See

California v. Greenwood, 486 U.S. 35, 43-44 (1988) (rejecting

the proposition that “concepts of privacy under the laws of each

State are to determine the reach of the Fourth Amendment”

and refusing to suppress evidence from a search that was

reasonable under federal law but violated state law because the

Court had “never intimated . .. that whether or not a search is -

reasonable within the meaning of the Fourth Amendment

depends on the law of the particular State in which the search

occurs”); Elkins v. United States, 364 U.S. 206, 223-24 (1960)

(implicitly overruling Di Re by holding that “[t]he test [for

admissibility of evidence] is one of federal law, neither enlarged

by what one state court may have countenanced, nor

diminished by what another may have colorably suppressed”).

6

Il. THE MAJORITY OF STATE SUPREME COURTS AND

FEDERAL CIRCUIT COURTS THAT HAVE CONSIDERED

THIS QUESTION HAVE CONCLUDED THAT STATES

CANNOT CREATE A FOURTH-AMENDMENT VIOLATION

THROUGH STATE ARREST REGULATION.

A. State Supreme Courts in California,

Colorado, Maine, Michigan, Nevada, North

Carolina, and Ohio Have Deferred to Federal

Constitutional Law to Define Fourth

Amendment Rights.

The Supreme Court of Virginia stands alone among

state supreme courts. It concluded inMoore that, because

the arrest violated state law, it negated the existence of

the probable cause to the arrest that allowed the search.

Moore, 636 S.E.2d, at 400. In short, Virginia’s highest

court found that a state-lew violation created a

constitutional infirmity under the Fourth Amendment.

Every other state supreme court to address the

question has agreed that the federal, not state, law defines

the contours of the Fourth Amendment. The California

Supreme Court in California v. McKay, 41 P.3d 59 (Cal.

2002), addressed precisely the question at issue in Moore,

yet it reached the opposite conclusion. There, an officer

stopped a bicyclist for an infraction of the state vehicle

code, placed him under arrest—allegedly in violation of

California law—and searched the cyclist incident to that

arrest, finding methamphetamine. Id., at 53. That court

recognized that Atwater foreclosed the defendant’s

contention that the arrest violated the Fourth

Amendment. Id., at 63-64. But, unlike the Virginia

Supreme Court, the California Supreme Court concluded

7

that a violation of state law in effectuating that arrest did

not render that arrest illegal under the federal

Constitution. Id., at 65-66 (“Our determination of the

validity of the search under the federal Constitution thus

does not depend on whether it was authorized by state law

or the law of the particular State in which the search

occurs... . [T]he test is one of federal law ... .”) (internal

citations omitted).°

Other state supreme courts have agreed—in the

absence of any state constitutional protection that goes

further than the Fourth Amendment—that when an arrest

violates state law but not the federal Constitution, no

exclusionary remedy is necessary. See, e.g., Colorado v.

Hamilton, 666 P.2d 152, 156-57 (Colo. 1983) (finding that

an arrest for probable cause that violated a state statute

did not violate defendant’s constitutional rights under the

state or federal Constitution and concluding that arrests

that exceeded an officer’s statutory authority were “not per

se violations of constitutionally protected rights”); Maine

v. Jolin, 639 A.2d 1062, 1064 (Me. 1994) (refusing to apply

a per se rule that evidence obtained from an arrest that

violated statutory jurisdictional boundaries would require

application of the exclusionary rule); Michigan v.

Hamilton, 638 N.W.2d 92, 96 (Mich.) (per curiam),

overruled on other grounds by Bright v. Ailshie, 641

N.W.2d 587, 590 n.5 (Mich. 2002) (reasoning that “[t]he

Fourth Amendment exclusionary rule only applies to

constitutionally invalid arrests, not merely statutorily

illegal arrests” and concluding that state statutory law did

3. The California Supreme Court ultimately found that the

arrest did not, in fact, violate state law as alleged. Id., at 72.

8

not require suppression of the evidence); North Carolina

v. Eubanks, 196 S.E.2d 706, 709 (N.C. 1973)

(distinguishing, in the context of an arrest for a traffic stop

that violated North Carolina law, between an “illegal”

arrest and an “unconstitutional” arrest and holding that

“nothing in our law requires the exclusion of evidence

obtained following an arrest which is constitutionally

valid but illegal .. . .”); Ohio v. Droste, 697 N.E.2d 620,

623 (Ohio 1998) (examining a traffic stop in which officers

exceeded statutory authority and concluding that “absent

a violation of a constitutional right, the violation of a

statute does not invoke the exclusionary rule”).

Indeed, the Nevada Supreme Court followed this

reasoning even when its state constitution, not the federal

Constitution, provided the exclusionary remedy. In

Nevada v. Bayard, 71 P.3d 498 (Nev. 2003) (per curiam),

an officer arrested Bayard for violating traffic ordinances

and found illegal drugs on his person in a search incident

to that arrest. Id., at 500. Thearrest,asin Moore,

violated state law because the officer abused his discretion

in declining to issue a citation under the circumstances.

Id., at 503. Bayard held that suppression of the evidence

was appropriate under the Nevada Constitution, yet it

still found that the arrest was legal under the Fourth

Amendment. Id., at 502-03; see also Oregon v. Rodriguez,

854 P.2d 399, 409 (Or. 1993) (holding that even if an

arrest were invalid under the Oregon Constitution,

“[blecause the arrest in this case did not violate the Fourth

Amendment, the guns discovered in the subsequent

9

consent search were not subject to suppression under the

Fourth Amendment”).*

In each of these cases, state supreme courts declined to

elevate their respective States’ regulations to the level of

federal constitutional law. This approach is consistent

with that employed by the majority of federal circuit

courts.

B. The First, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Tenth, and Eleventh

Circuits Have All Refused to Allow State-Law

Violations to Render [legal Otherwise-

Lawful Conduct Under Federal Law.

_ The First, Third, Fourth, Fifth, Sixth, Seventh, Eighth,

Tenth, and Eleventh Circuits have all held that when an

officer has probable cause to believe a violation of the law

has occurred and makes an arrest, the constitutionality of

the arrest does not depend on compliance with state law

that extends beyond what the Constitution requires.

Although these cases involve a broad spectrum of arrests,

the principle remains the same: A violation of state-arrest

law does not create a violation of the Fourth Amendment.

The Eighth Circuit has reached this result in a case

factually similar to Moore. In United States v. Bell, 54

F.3d 502 (CA8 1995), officers arrested Bell for operating a

bicycle without a headlight. Id., at 503. Searching him

incident to the arrest, the officers found cocaine. Id.

4. See also New Mexico v. Bricker, 134 P.3d 800, 801-05

(N.M. App. 2006) (finding an arrest that violated state law

reasonable under the Fourth Amendment but unconstitutional

under the New Mexico Constitution).

10

Although Bell’s arrest violated Iowa law, which allowed

only a citation for the offense, the court declined to exclude

the evidence because it did “not think Fourth Amendment

analysis requires reference to an arrest’s legality under

state law.” Id., at 504.

In examining the question of whether evidence

discovered incident to a search illegal under state law

must be suppressed under the Fourth Amendment, the

Fourth, Fifth, Sixth, Eighth, and Tenth Circuits have each

held that a state-law violation alone does not render an

arrest or search incident to it unconstitutional. In United

States v. Van Metre, 150 F.3d 339 (CA4 1998), the Fourth

Circuit reasoned “[(t]hat [whether] an arrest may or may

not have been conducted in accordance with . . . state law

is irrelevant to our analysis,” and declined to “import({] the

particularized requirements of state standards... .”

where the constitutional requirements for arrest warrants

were otherwise met. Id., at 347-48. Similarly, the Fifth

Circuit found that “the proper inquiry in determining

whether to exclude the evidence at issue [in a federal

prosecution for possession of methamphetamine for intent

to distribute] is not whether the state officials’ actions in

arresting him were ‘lawful’ or ‘valid under state law.’ The

question . .. is whether the actions of the state officials in

securing the evidence violated the Fourth Amendment.”

United States v. Walker, 960 F.2d 409, 415 (CA5 1992)

(refusing to exclude evidence where police had probable

cause to arrest). See also United Statesv. Wright, 16 F.3d

1429 (CA6 1994) (refusing to exclude evidence found in a

search incident to an arrest based on probable cause and

lawful under the Fourth Amendment, even though

Tennessee law exceeded federal constitutional

protections).

11

The Eighth Circuit reaffirmed its approach in United

States v. Lewis, declining to suppress evidence of crack

cocaine possession obtained in a search incident to a

citation for loitering. 183 F.3d 791, 791 (CA8 1999).

Although the arrest violated a Minnesota statute, the

court believed that “the appropriate inquiry here [was] not

whether Lewis’s arrest was valid under Minnesota’s

criminal procedure statute, but rather under federal law.”

Id., at 794. Under federal law, the court upheld the arrest

and search. Id.

The Tenth Circuit also found, when considering a

suppression claim based on a state-law flaw in a search

warrant, that a state-law violation “is irrelevant as long as

the standards developed under the Federal Constitution

were not offended.” United States v. Le, 173 F.3d 1258,

1265 (CA10 1999) (quoting Wright, 16 F.3d, at 1437).

Although each of these cases involved prosecutions

under federal, not State, law, their respective courts’

refusal to allow state law to define federal rights still

conflicts with the analysis employed by the Virginia

Supreme Court and the Ninth Circuit.

In the context of a § 1983 claim, seeking recompense

for an allegedly illegal search, the First, Third, Fourth,

Seventh, Eighth, and Eleventh Circuits all found state law

not to be controlling in defining the alleged constitutional

violation. The First Circuit foundin Vargas-Badillo v.

Diaz-Torres, 114 F.3d 3, 6 (CA1 1997), that a violation of

state law cannot support a claim for illegal arrest under §

1983. It was not disputed that the officers had probable

cause to arrest, id., at 5, or that the officers violated a

Puerto Rico Rule of Criminal Procedure, id., at 6, but the

12

First Circuit reasoned that “[mJere violations of state law

do not, of course, create constitutional claims.” Id.

Similarly, the Third Circuit directly rejected the idea

that state law controls the validity of an arrest. In

Anderson v. Haas, 341 F.2d 497 (CA3 1965), the court

declared that “[i]t is immaterial whether [the officer’s]

conduct is legal or illegal as a matter of state law. Here,

the plaintiffs claim is based upon an alleged violation of

his rights under the Constitution of the United States, and

we must look to Federal law to determine whether such

violation occurred.” Id., at 499. The Fourth Circuit

agreed. Street v. Surdyka, 492 F.2d 368, 371-72 (CA4

1974) (noting that, in a § 1983 action, an officer cannot be

liable for a violation of state arrest law “unless he also

violated the federal constitutional law governing

warrantless arrests” and finding that “(t]he states are free

to impose greater restrictions on arrests, but their citizens

do not thereby acquire a greater federal right”).

The Seventh Circuit reached a similar result when

considering a failure to provide a state-required hearing,

noting that where an officer “followed the procedures the

Constitution prescribes for making arrests, his failure to

afford .. . additional procedures established by state law

does not matter—not, at least, to a claim under the

[FJourth [A)mendment and § 1983... .” Gordon v.

Degelman, 29 F.3d 295, 301 (CA7 1994); see also

Pasiewicz v. Lake County Forest Preserve, 270 F.3d 520,

526 (CA7 2001) (declining to decide whether an officer’s

arrest exceeded his state statutory jurisdiction because the

state-law violation was not determinative of the

constitutional question of the lawfulness of the arrest).

13

The Eighth Circuit echoed that consensus in Abbott v.

City of Crocker, 30 F.3d 994, 997 (CA8 1994), noting that

“[clonduct by a government official that violates some

state statutory or administrative provision is not

necessarily constitutionally unreasonable.” Although the

Eighth Circuit recognized that state law might be relevant

to determining whether police conduct was reasonable, it

maintained that “evidence seized by state officers in

conformity with the Fourth Amendment will not be

suppressed in a federal prosecution because state law was

violated.” Id., at 998 (internal citations and quotation

marks omitted) (emphasis in original).

Finally, in Knight v. Jacobson, 300 F.3d 1272 (CA11

2002), the Eleventh Circuit declined to use a violation of

a state statute to define a § 1983 action. Knight claimed

that his arrest, even if supported by probable cause,

violated the Fourth Amendment because Florida law

authorizes warrantless arrests only for misdemeanors

committed in the officer’s presence (his was not). Id., at

1275-76. The Eleventh Circuit held that federal law, not

state law, determines a § 1983 violation. Id., at 1276.

Together, these state supreme court and federal circuit

decisions demonstrate that the great weight of judicial

opinion among the lower courts looks to federal

constitutional law, rather than state law, to determine the

scope of the Fourth Amendment.

14

C. The Ninth Circuit, the District of Columbia

Circuit, and the Virginia Supreme Court

Conflict with the Majority, Holding That

State-Law Violations Create Fourth

Amendment Violations.

The Supreme Court of Virginia reached the opposite

result. Rather than looking to federal law to define

federal constitutional rights, the Moore decision found

that a state-law violation created a constitutional

infirmity under the Fourth Amendment. Moore, 636

S.E.2d, at 400. The court reasoned that the illegality of

the arrest under state law also negated the existence of

probable cause in the first place. Id. As a result, the court

concluded that the evidence must be suppressed under the

Fourth Amendment—even though it was obtained in a

search incident to an arrest basedon constitutionally

sufficient probable cause—simply because that arrest

violated state law. Moore, 636 S.E.2d, at 400. Thus,

according to the Supreme Court of Virginia, an unlawful

arrest under state law, probable cause notwithstanding,

requires not a state-crafted remedy, but a federal

constitutional solution.

Only the Ninth Circuit, the District of Columbia

Circuit, and the Virginia Supreme Court have adopted

this position. In United States v. Mota, 982 F.2d 1384

(CA9 1993), officers arrested the Mota brothers for

operating a food cart without a license, and a search

incident to arrest revealed counterfeit bills. Id., at 1385.

The Mota court reasoned that the legality of the arrest

and subsequent search turned on state law. Id., at 1387-

88. That court recognized that the application of the

exclusionary rule in federal court is a matter of federal,

15

not state, law, but it found that federal courts must

consider state law in determining the lawfulness of the

search. Id., at 1397 (citing DeFillippo, 443 U.S., at 36

(noting that authority to arrest depends “in the first

instance, on state law”), and Di Re, 332 U.S. 581 (finding

a search incident to arrest unlawful where arresting

officers lacked authority to arrest under state law)).

There—as in Moore—an officer had cause to believe that

the offenders had broken the law in his presence,

yet—again as in Moore—state law prohibited police from

effectuating a custodial arrest for the offense. Mota held

that because the arrest violated state law, it was both

unreasonable and unlawful under the Fourth Amendment

of the United States Constitution. 982 F.2d, at 1389.

Thus, Mota declared that the evidence found incident to

that unlawful search must be suppressed. Id.°

Similarly, in Barnett v. United States, 525 A.2d 197

(CADC 1987), the District of Columbia Circuit found that

the arrest and search of a pedestrian violating a walking

regulation was constitutionally unreasonable. The traffic

regulation was a civil infraction for which only a monetary

5. The extant circuit split is resilient and unlikely to

resolve without the Court’s intervention. Indeed, the Ninth

Circuit recently reaffirmed Mota’s holding. Bingham v. City

of Manhattan Beach, 341 F.3d 939 (CA9 2003) (noting that

“(ijn evaluating a custodial arrest conducted by state

officials, federal courts must determine the reasonableness

of the arrest in reference to state law governing the arrest”

where an officer violated a California statute prohibiting

police from arresting an adult for driving with an expired

license) Id., at 949-50 (quoting Mota, 982 F.2d, at 1388)

(internal quotations omitted)).

16

penalty could be imposed. Id., at 199. The D.C. Circuit

found that the arrest for this misdemeanor was unlawful

and that the contemporaneous search that produced

narcotics violated the defendant’s Fourth Amendment

rights. Id. Therefore, the court concluded, the evidence

must be suppressed. Id.

The effect of the rule articulated in each of these cases

and is to allow state legislatures the power to change the

contours of the Fourth Amendment. But see Elkins, 364

U.S., at 223-24 (“The test [for admissibility of evidence] is

one of federal law, neither enlarged by what one [S]tate

court may have countenanced, nor diminished by what

another may have colorably suppressed.”). This minority

approach has been rejected by a broad spectrum of

decisions in other state and circuit courts, creating an

irreconcilable conflict between the two.

Ill. STATES WILL BENEFIT FROMA CLEAR

DETERMINATION OF THEIR POWERS AND

RESPONSIBILITIES.

States often choose to create protections greater than

those provided under the federal Constitution. But States

need certainty as to the intersection of their power to

regulate arrests and their ability to craft their own

remedies for those violations. Requiring federal law

probable cause and constitutionality to turn on state

statutes not only injects a needless complexity into the

law-enforcement process, cf. Brinegar v. United States,

338 U.S. 160, 176 (1949) (“The rule of probable cause is a

practical, nontechnical conception . . . . Requiring more

would unduly hamper law enforcement.”), but also would

destroy federal uniformity, as the disparate state laws

would create disparate federal rights.

17

The wisdom of the majority position lies in its ability to

separate state-created rights from federal constitutional

rights. Indeed, this approach accords even greater respect

to individual States’ powers to provide rights beyond the

Constitution by also giving each state the freedom to craft

its own remedies for violations of those rights. The

melding of state-law regulations into federal constitutional

rights undermines the benefits of both: On the one hand,

it mandates a uniform remedy for a broad spectrum of

state statutory violations; on the other, it allows state

laws to create variations in federal constitutional

protections.

The majority rule rightly declines to predicate the

Fourth Amendment on state-law statutory questions. ~

Rather, it requires the States to assume the responsibilitv

for enforcing their own laws. As such, the major‘.,

position maintains both the need for state sovereignty in

enforcing state laws and the need for uniformity in the

enforcement of federal rights. Both state and federal

courts would benefit from the Court’s guidance in

determining the precise intersection between State and

constitutional law in interpreting the Fourth Amendment.

18

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for writ of certiorari and reverse the judgment of

the Virginia Supreme Court.

Respectfully submitted,

GREG ABBOTT R. TED CRUZ

Attorney General of Solicitor General

Texas Counsel of Record

KENT C. SULLIVAN SUSANNA DOKUPIL

First Assistant Attorney Assistant Solicitor

General General

DAVID S. MORALES P.O. Box 12548 (MC 059)

Deputy Attorney General Austin, Texas 78711-2548

for Civil Litigation (512) 936-1700

COUNSEL FOR

AMICI CURIAE

March 2007