# Amicus Curiae Brief — Virginia v. Moore

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0522%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 164

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0522%3A06. Public record. Not legal advice.