Petitioners Brief — Virginia v. Moore

“16 Spe Wel [ Sema core Us]

LY

No. 06-1082

b3p

Sn The

Supreme Court of the Anited States

e

COMMONWEALTH OF VIRGINIA,

Petitioner,

v.

DAVID LEE MOORE,

Respondent.

S

On Writ Of Certiorari To The

Supreme Court Of Virginia

SJ

BRIEF OF THE PETITIONER

+

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy Attorney General

WILLIAM E. THRO MARLA GRAFF DECKER

State Solicitor General Deputy Attorney General

Counsel of Record

wthro@oag.state.va.us LEAH A. DARRON

Senior Assistant

STEPHEN R. MCCULLOUGH Attorney General

Deputy State OFFICE OF THE

Solicitor General

ATTORNEY GENERAL

smccullough@oag.state.va.us 900 East Main Street

Richmond, Virginia 23219

Telephone: (804) 786-2436

Facsimile: (8U4) 786-1991

Counsel for the

November 5, 2007 Commonwealth of Virginia

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED

Does the Fourth Amendment require the

suppression of evidence obtained incident to an arrest

that is based upon probable cause, where the arrest

violates a provision of state law?

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................ccccessssssssrreeees i

TABLE OF AUTHORITIES...................ceccseeseeeeseees vi

a 1

IT ivncisnccccsccnnssstctenonscsnencosssessboneees 2

a asaniies 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................ccccecseseeeeeeees 3

STATEMENT OF THE CASE ..............:cccccceceeeeeeees 4

SUMMARY OF ARGUMENT ...............:cccccccceeeeeeees 8

FREESE IER EER ne LOTTE OO OTRO ET 11

I. THE CONSTITUTIONAL STANDARD OF

PROBABLE CAUSE, NOT THE VAGARIES

OF STATE LAW, SHOULD CONTINUE TO

DETERMINE THE CONSTITUTIONALITY

A. Neither the History Behind the

Adoption of the Fourth Amendment

Nor Its Application in Modern Times

Warrant the Incorporation of the State

Law of Arrests Into the Probable

i i iinciicinsttscgnnesoes 12

1. The Fourth Amendment Was

Adopted to Protect Citizens From

Arbitrary Police Action, Not to

Govern the Minutia of an Officer’s

Arrest Authority Under State Law.... 12

ill

TABLE OF CONTENTS - Continued

Page

2. The Modern Jurisprudence of this

Court Has Upheld as Reasonable

Arrests That Are Based on Probable

B. This Court Has Previously Declined

to Incorporate State Law in Assessing

the Constitutionality of Searches and

It Should Do So Again With Respect

to the Constitutional Law of Arrests..... 18

II. THE HOLDING BELOW IS

INCOMPATIBLE WITH OUR

CONSTITUTIONAL SYSTEM OF

DUAL SOVEREIGN TY...........:ccccssssesseeeereees 19

A. Incorporating State Law Into the

Constitutional Standard for Arrests

Will Place Federal Courts in an

Improper Supervisory Role Over

Questions of State Law..................:cee 20

B. The Judgment Below is Irreconcilable

With a Uniform Constitutional Standard

That Applies to all States ...................... 21

C. If States Afford Criminal Defendants

Safeguards Beyond the National

Constitutional Minimum, Those

Safeguards Operate Separately From

the National Constitution Itself............ 22

D. The Constitution’s Exclusionary Rule

Should not be Extended to Vindicate

lig 26

ITI.

iv

TABLE OF CONTENTS - Continued

Page

UNDER THIS COURT'S JURISPRUDENCE,

THE OFFICER’S SEARCH OF MOORE

INCIDENT TO HIS ARREST WAS

CONSISTENT WITH THE FOURTH

RE UREES eereettiictssierennrineninninnsenncen 29

A. An Officer Can Search Incident to

an Arrest That Is Lawful Under

Cie CommtiOttGt «..<ccccceccocccccccoscccevcccccceces 29

B. This Court Has Never Held That a

Violation of State Law Renders an

Arrest Constitutionally Unlawful.......... 30

1. Atwater and Knowles Are

Inapplicable to the Issue of

Whether the Constitution

Requires Suppression Because

the Arrest Violates State Law .......... 30

2. Neither Di Re nor DeFillipo Command

the Constitutional Remedy of

Suppression for a Mere Violation

a 32

C. Relying on This Court’s Jurisprudence,

the Lower Courts Overwhelmingly Have

Rejected the Rationale of the Supreme

CIE Oe We daicinrincctcccitncossevscesevececens 36

THE DECISION BELOW IS IMPRACTICAL

AND UNNECESSARY FROM A POLICY

PERTTI E ecincesrecsvecncesvnecsoresetoswnumtonrteneees 39

Vv

TABLE OF CONTENTS -— Continued

Page

A. Grafting State Law Strictures Onto

the Simple Probable Cause Standard

Would Inject Needless Complexity

RE ss icecitienidtiiintiniiniabintareinnnninn 39

B. Constitutionalizing State Laws

Governing Arrests Is not Necessary

to Protect the Citizenry and May Well

Prove Counterproductive...............:0008 44

OIE EIN coccescsccvsvcssconsnoeetovscnccesosssesennoncnpenaness 48

vi

TABLE OF AUTHORITIES

Page

CASES

Abney v. United States,

I eeacinttl 23

Anderson v. Haas,

341 F.2d 497 (3” Cir. 1965)..........ccccccceseeseseseecereeeees 37

Archie v. City of Racine,

847 F.2d 1211 (7” Cir. 1988) .......c.ccccccsceceeeeeeeeseeeees 20

Atwater v. City of Lago Vista,

532 U.S. 318 (2001)

saibibiediilbiasinkintiiniated 6, 7, 8, 13, 14, 26, 30, 31, 32, 43, 45

Barker v. Wingo,

ai creer rniareasietenntin 22

Barron v. Mayor of Baltimore,

BB UPs C7 Pet.) BEB (1BSS)......cccccccccccccescccoccccccccccccce 12

Barry v. Fowler,

902 F.2d 770 (9 Cir. 1990).........cccccscsseseeseseseeseeesees 36

Bourdeau v. McDowell,

I eenreeie 27

Brinegar v. United States,

Be By Be CD crcccccccccccccccccscccccccscovecees 15, 39, 44

California v. Greenwood,

| 18, 19, 23, 33

California v. McKay,

41 P.3d 59 (Cal. 2002)............0..00.... 20, 30, 33, 32, 37

Central Virginia Cmty. Coll. v. Katz,

SII TIT TIITIED is cnnscccesccutsnssnsoscossunssosssnnsensonsees 35

vii

TABLE OF AUTHORITIES - Continued

Page

Colorado v. Hamilton,

666 P.2d 152 (Colo. 1963) .............cccrccccrsssesseeees 38, 40

DeChene v. Smallwood,

EEE, SIO... cscsssennenpesscemsnnnbnnsseinnnduil 25

Devenpeck v. Alford,

CR EE Ee Te TEs 17

Dunaway v. New York,

os snrceniticmepnnneematiiidals 15, 43

Elkins v. United States,

364 U.S. 206 (1960) ............ 18, 19, 24, 26, 27, 33, 38

Federal Mar. Comm’n v.

South Carolina Ports Auth.,

I cetacean 25

Florida v. Wells,

anand laaaeananlenalslil 16

Gordon v. Degelmann,

I e BOD cccccorcccnnssecccenncssnnntmenenes 37

Gregory v. Ashcroft,

a a cipnranicenasinaailiiaatitll 19

Harris v. United States,

a teccamieinialliie 29

Henry v. United States,

| Tea TEE 15

Hewitt v. Helms,

I sin atch eadratnnnidianiniial 46

Hudson v. Michigan,

i BE ctcnstecccssmscnnesescsnioteneninhaennbitiis 28

Vill

TABLE OF AUTHORITIES — Continued

Page

Jackson v. Virginia,

i | Tere Ie 17

Johnson v. United States,

i a rtalaninlal 34

Jordan v. Shands,

Be I SI COs BR cccccccncecasccasonccsocesecncsaccsens 25

Knight v. Jacobson,

300 F.3d 1272 (11° Cir. 2002)................ccsscscssssesees 37

Knowles v. Iowa,

ainsi haridcnaibicttmsiniaiil 6, 7, 30, 31

Lovelace v. Virginia,

522 S.E.2d S56 (Va. 190B)..........ccccccccsessesescsescosesssosees 8

Malone v. County of Suffolk,

968 F.2d 1480 (2 Cir. 1992) ...........cccsecsseseeeeeeeesees 37

Maine v. Jolin,

GSO A.3d 10GB (Me. 1904) .........ccccccccccccsccscscccees 38, 40

Mapp v. Ohio,

I tae eeeninliccianial 24

Maryland v. Pringle,

I acini einatiniaiitl 14, 44

Massachusetts v. Lyons,

492 N.E.2d 1142 (Mass. 1986)...................c:cecseeeeees 38

McCracken v. Virginia,

572 S.E.2d 493 (Va. Ct. App. 2002) ..0...... cece eeeeeeeee 26

McKane v. Durston,

I lcci 23

1x

TABLE OF AUTHORITIES — Continued

Page

Michigan Dep't of State Police v. Sitz,

EE pec een enEN em 16

Michigan v. DeFillippo,

a a 14, 32, 35

Michigan v. Hamilton,

638 N.W.2d 92 (Mich. 2002) ................:cceeeeeeeeee 38, 40

Michigan v. Long,

NTT MN eae me me 21

Montana v. Bauer,

36 P.Sd BOS (Mant. BOO1)......cccccccccocccsccccscssossesccceees 24

Nevada v. Bayard,

71 P.3d 498 (Nev. 2003) ........... eee. insianhineiadihabiddii 24

New Hampshire v. Smith,

908 A.2d 786 (N.H. 2006) .................cceeceeeeseeeees 37, 40

New Mexico v. Bricker,

134 P.3d 800 (N.M. Ct. App. 2006) ............ eee 23

New State Ice Co. v. Liebmann,

a 24

North Carolina v. Eubanks,

196 S.B.Ba TOS (N.C. 1973) ....cccccccccccccecscoscccsccecesess 38

Ohio v. Brown,

Be ee 0 Gere BD cccncccccaceccccccesscesesosaccoes 24

Ohio v. Droste,

697 N.E.2d 620 (Ohio 1998) ..................ccceeeeeees 38, 40

Oregon v. Hass,

EN ST on cininlhinibiealtideieematienbiciiaeaiail 22

x

TABLE OF AUTHORITIES - Continued

Page

Payton v. New York,

I 12

Pennhurst State Sch. and Hosp. v. Halderman,

EN anno ae a EOC 20

Preston v. Uniied States,

ee ID vcicineciccncnninvenccsensesnennnonunnstanadinas 29

Printz v. United States,

I aaa ccenlarieatecindal 21

Ryan v. County of DuPage,

45 F.3d 1090 (7 Cir. 1995)..........ccssscssssseseeseeeeeeeees 35

Sanchez-Llamas v. Oregon,

es is GI GID cccsscccscessccsccsesenossccsesnesesesoneses 27

Sandin v. Conner,

I ar atertnienriaineailiinnls 46, 47

South Dakota v. Opperman,

ET ENE rT 16

Stanford v. Texas,

TEN nev ae aoa 12

Stone v. Powell,

ENIAC ney eee enema eT oe 28

Street v. Surdyka,

492 F.2d 368 (4 Cir. 1974)... .cccecccccssssessesssesseseees 33

Terry v. Ohio,

TT asin cnnnesncstetiinensiniiateiinananiaiti 44

Texas v. Brown,

I atta alain eleliiecailial 39

xl

TABLE OF AUTHORITIES - Continued

Page

Troncoso v. Commonwealth,

407 S.E.2d 349 (Va. Ct. App. 1991)... cece eeeeeees 26

United States v. Bell,

54 F.3d 502 (8" Cir. 1995).......cccccccccecsesseeeseeceseereeees 36

United States v. Caceres,

I I esinescinsinpeneeenncneiadtil 27

United States v. Di Re,

Se ee CIE CD ccevcccececccccccsesecneccccscesoccesesese 32, 33

United States v. Donovan,

ee 27

United States v. Garcia,

676 F.2d 1086 (5” Cir. 1982),

rev'd, 462 U.S. 1127 (1983).............ccccceeeeee 33, 34, 40

United States v. Knights,

I siisinnt 14

United States v. Martinez-Fuerte,

Sn ee 13

United States v. Miller,

452 F.2d 731 (10 Cir. 1971) ........cccccccececceeeeecceeeees 36

United States v. Mota,

982 F.2d 1384 (9 Cir. 1993)... ccececeeeseeeeeeeeeees 36

United States v. Robinson,

as eeionoemeiaits 14, 29

United States v. Ross,

TTI IE ORT TNT 34

United States v. Trigg,

878 F.2d 1037 (10 Cir. 1989)........ccccccesesceseeseseeees 36

xii

TABLE OF AUTHORITIES -— Continued

Page

United States v. Van Metre,

150 F.3d 339 (4 Cir. 1998).........cccccssecsessesesestenesens 36

United States v. Verdugo-Urquidez,

es Be OD eeceensecervevececccsscoscceserscccsccsssecenses 13

United States v. Walker,

960 F.2d 409 (5” Cir. 1992)..........cccccseeseeeees 24, 33, 36

United States v. Watson,

Me Ge icetenvecescccseevssesoccecsesessessesseees 13, 14

United States v. Wright,

16 F.3d 1429 (6” Cir. 1994).........ceceeeeeeeeees 19, 33, 36

Vargas-Badillo v. Diaz-Torres,

Be Ty BOD wcsecccceccccocsccvescoscsscsensssosones 37

Virginia v. Hill,

570 S.E.2d 805 (Va. 2002).............cccceseeseseeeeeeeeeeenees 26

Weatherford v. Bursey,

TT anne are ETT 23

Whren v. United States,

Be ED evevécsnessvenseesecrsccesevnesssoscensens 14, 15

CONSTITUTIONAL PROVISIONS

Oe URLs Ts nsieeecansicibnaingaien 21

U.S. Const. amend. IV

SOO 1, 3, 6-9, 12-19, 24, 28, 29, 31, 35, 36, 37, 43

xii

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Si EI) SOIT cin iissesuencnesosonnesbenensiietndinniannbineaiiaiinitin 32

PUI: Ot UTI sin tnaicegnnidabannnpmnmnniiiieetaianniiiitia 2

ie tir EE iintininniisapenicienenennienaseaieuniemanntenenntbamidigi 20

i icciitndinniniiscescnninnncteseninsiescneiiaueans 20, 37

I ceriernesiresincitiininnmenninmenatiil 39

Kentucky Rev. Stat. § 431.015.........cccccccccccscssororrsssees 39

Montana Code Ann. § 61-8-703 ..........cccccceccesecseeseenees 41

Nebraska Rev. Stat. $ 29-435............cccccccccccccccscccccceee 39

Nebraska Rev. Stat. § 60-6, 192..............ccesseecscesseeeees 41

New Mexico Stat. § 66-8-123 ..........ccsccccccesssssseessereees 39

North Dakota Cent. Code § 39-03-15 .........ccccccseseeees 41

ee enh: Gn Oe Ge icinccecccccncncsssccnenccunenincctessseenin 39

Se Oe ee Bi accctcecesncsncesincnsessnnsenssesesneetns 40

ee I eccctrntinintnscncdensnnnennapennpnnsensingiiile 31

I Te Oe IE crctrcrcccetscnncescscsasscsnnnsstvctownsinnia 5

i Ce Bi ircteiscncecsseniccesesccnsetessenntnnenicnion 42

ae inniecececensstcsrecncicniniansenieiinnteth 42

ee i ae a tecccecccnsescsvnctntcotasnnsteensnsseninisii 5

Virginia Code § 19.2-74............::008 1, 3, 6, 8, 21, 26, 42

Pee CAE © Fi icsccsecccsecccsessccssescussenssovens 22, 25

ee CE oe i itectticecisenenstcinacenesinsvensnnsienniia 42

XiV

TABLE OF AUTHORITIES — Continued

Page

TTT 4]

I Ge Ge eesccecesesconecssccconssesecesnnessentnee 31

re I I ic. sscsseenscesmnsmnbaniinediacencccnmne 26

CourRT RULES

. = Enea re ment remem Dea 22

Re ee a. ssiercnasisibesebebiniennesaiints 23

eB I GI prcncescccescnccdeccsonseccmscninnecsionsen 23

VA. &. CP. BAER TC ..ccoccoccccese Sis ieaiailieniicidiilentaiaibisanda 22

Wa, BR, COR. BRINE GiB nese ceccecsscsocscoccccesosecsnscovesosooneesss 22

OTHER AUTHORITIES

James N.G. Cauthen,

Expanding Rights Under State Constitutions:

A Quantitative Appraisal,

63 ALBANY L. REV. 1183 (2000).................ccceeeeeseeees 22

Federal Bureau of Investigation,

St. Louis Metro. Fugitive Task Force,

http://stlouis.fbi.gov/coordination.htm

Ea Ee 41

Susan King,

State Constitutional Bibliography: 1989-1999,

31 RUTGERS L..J. 1623 (2OOO)...........cccccccccccccccsscesees 22

1 Wayne R. LaFave,

Search and Seizure, § 1.5B (4” ed. 2004)... 29, 33, 35

1

INTRODUCTION

From the ratification of our Constitution until

the present time, States have borne the primary

responsibility for enforcing criminal] law. In so doing,

the States, in an exercise of their sovereignty, have

placed a wide variety of limitations on their officers’

authority to arrest. However, these strictures are

creatures of state law. A violation of these state laws

does not transform a state law violation into a

violation of the United States Constitution. The

existence of probable cause to arrest has determined,

and should continue to determine, the constitutional

validity of an arrest. If the arrest is valid as a matter

of national constitutional law, then any violation

of state law is constitutionally irrelevant. The

Constitution does not require suppression except

where the Constitution itself is violated.

In the case at bar, it is undisputed that the

arresting officers had probable cause to arrest, but

that the arrest violated a state statute.’ Because the

arrest was founded on probable cause, the arrest was

constitutionally proper. With a proper arrest from a

constitutional standpoint, police could search incident

to that arrest. Moore’s Fourth Amendment rights

were not violated, even if a state law was violated.

S

’ Virginia Code § 19.2-74, required the officers to issue a

summons and release Moore.

2

OPINIONS BELOW

The decision of the Supreme Court of Virginia is

published as Moore v. Commonwealth, 636 S.E.2d 395

(Va. 2006) and is reprinted in the Appendix to the

Petition at 1. The en bane decision of the Court of

Appeals of Virginia is published as Moore v.

Commonwealth, 622 S.E.2d 253 (Va. Ct. App. 2006)

(en banc) and is reprinted in the Appendix to the

Petition at 12. Finally, the panel decision of the Court

of Appeals of Virginia is published as Moore

v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005)

and can be found in the Appendix to the Petition at

35.

+

JURISDICTION

The decision of the Supreme Court of Virginia

was issued on November 3, 2006. This Court has

jurisdiction under 28 U.S.C. § 1257(a), which allows

this Court to review the federal law judgments of

state courts.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This Petition concerns the following constitutional

and statutory provisions:

1. The Fourth Amendment of the Constitution of

the United States, U.S. CoNsT. amend. IV,

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

2. Virginia Code §19.2-74 provides, in pertinent

part:

A. 1. Whenever any person is detained by or

is in the custody of an arresting officer for

any violation committed in such officer’s

presence which offense is a violation of any

county, city or town ordinance or of any

provision of this Code punishable as a Class

1 or Class 2 misdemeanor or any other

misdemeanor for which he may receive a jail

sentence, except as otherwise provided in

Title 46.2, or § 18.2-266, or an arrest on a

warrant charging an offense for which a

summons may be issued, and when

specifically authorized by the judicial officer

issuing the warrant, the arresting officer

shall take the name and address of such

4

person and issue a summons or otherwise

notify him in writing to appear at a time and

place to be specified in such summons or

notice. Upon the giving by such person of his

written promise to appear at such time and

place, the officer shall forthwith release him

from custody. However, if any such person

shall fail or refuse to discontinue the unlawful

act, the officer may proceed according to the

provisions of § 19.2-82.

Anything in this section to the contrary

notwithstanding, if any person is believed by

the arresting officer to be likely to disregard

a summons issued under the provisions

of this subsection, or if any person is

reasonably believed by the arresting officer

to be likely to cause harm to himself or to any

other person, a magistrate or other issuing

authority having jurisdiction shall proceed

according to the provisions of § 19.2-82.

¢

STATEMENT OF THE CASE

1. Two police detectives stopped David Lee Moore

after they observed him driving on a suspended

license in Portsmouth, Virginia.’ J.A. at. 11-13,

* The officers were engaged in a radio discussion with other

officers concerning the fact that a man with the nickname

“Chub” or “Chubs” was driving around the City of Portsmouth.

J.A. at 11, 16. Detective Mark Anthony knew Moore as “Chub.”

J.A. at 14-15. Detective B.J. Karpowski knew another man with

such a nickname, Christopher Delbridge, and he also knew that

(Continued on following page)

5

15.° Under state law, driving on a suspended license

is a Class 1 misdemeanor, which carries a maximum

punishment of one year in jail and a $2,500 fine.

Virginia Code §§18.2-11, 18.2-272. Moore was

arrested and, eventually, he was searched incident to

the arrest. J.A. at 24. In the pocket of Moore’s jacket,

the police recovered 16 grams of crack cocaine and

from his pants pocket $516 in cash. J.A. at 24-26.

Moore was charged with possession of cocaine with

the intent to distribute. J.A. at 7. Prior to his

trial, his attorney filed a motion to suppress, alleging,

among other things, that the arrest violated the

Fourth Amendment of the United States

Constitution. J.A. at 5.

2. At the suppression hearing, Moore conceded that

the stop was proper and that officers had probable

cause to believe that Moore’s license was suspended.

J.A. at 19. However, he contended that he should

have been released with a summons rather than

arrested, as provided by Virginia law. Since he was

not released on a summons, Moore argued that the

the driver’s license for Mr. Delbridge, a/k/a “Chub” was

suspended. J.A. at 11. Detective Karpowski radioed to the other

officers that they should stop Chub’s vehicle for driving on a

suspended license and they did so. J.A. at 13-15. Moore conceded

at trial that the stop was proper based on the information

available to the officers at the time of the stop, and he never

raised any issue in connection with the stop in his appeal. J.A.

at 19.

* J.A. refers to the joint appendix. Pet. App. refers to the

documents attached to the petition for a writ of certiorari.

6

Constitution required that any evidence derived from

the search incident to arrest should have been

suppressed. J.A. at 19. The trial court, specifically

relying on Atwater v. City of Lago Vista, 532 U.S. 318

(2001), concluded that because the officer had probable

cause to arrest, the arrest was constitutionally proper.

J.A. at 21. Therefore, the trial court denied the

motion to suppress. J.A. at 21. Moore was convicted

and sentenced to serve five years in prison, with one

year and six months of that sentence suspended. Pet.

App. at 2.

3. Moore appealed to Virginia’s intermediate appellate

court. A divided three-judge panel reversed. The panel

majority observed that under Virginia Code § 19.2-74,

the officers should have issued a summons for the

misdemeanor offense instead of effecting a full

custodial arrest. Since state law precluded a custodial

arrest and required the issuance of a summons, the

search incident to the arrest was unconstitutional.

Pet. App. at 38-39. Although the panel majority

acknowledged that Atwater, 532 U.S. at 354 and

Knowles v. Iowa, 525 U.S. 113 (1998) did not compel

this outcome, it nevertheless reasoned that suppression

was “a logical and necessary extension of the decision

in Knowles.” Pet. App. at 44. A dissenting judge,

however, reasoned that “[bJecause Moore’s arrest was

based on probable cause that he committed the

offense of driving on a suspended license, the arrest

did not violate the Fourth Amendment to the United

States Constitution.” Pet. App. at 49. The dissent

further concluded that “it is clear that the Fourth

7

Amendment to the United States Constitution is not

violated as a result of a state law violation.” Pet. App.

at 49.

Virginia obtained a rehearing en banc by the

intermediate appellate court. By a vote of 7-4, the

en banc court affirmed the conviction. It concluded

that the constitutional legitimacy of an arrest

under the National Constitution hinged on whether

the officers had probable cause. Pet. App. at 20.

Moore’s arrest was unquestionably based on probable

cause. Pet. App. at 20-21. The court reasoned that

the presence of probable cause is an issue that must

be “determined separate and apart from whether

an arrest violates a state statute.” Pet. App. at

22. Finally, since the Fourth Amendment did not

compel suppression for the mere violation of a

state statute, the en banc court held that the

suppression of the evidence was unwarranted. Pet.

App. at 25-26. The four dissenting judges reiterated

the reasoning set forth in the panel decision. Pet.

App. at 27-34.

4, Moore appealed to the Supreme Court of Virginia,

arguing that “the Court of Appeals [of Virginia] en

banc erred in holding that his ‘arrest and search did

not violate the Fourth Amendment.’” Pet. App. at 3.

That tribunal, by unanimous opinion, held that the

search of the defendant, based upon a constitutionally

proper arrest, nevertheless “was not consistent with

the Fourth Amendment.” Pet. App. at 11. The

court began by examining this Court’s decisions in

Knowles and Atwater as well as its own decision in

8

Lovelace v. Virginia, 522 S.E.2d 856 (Va. 1999), a

decision interpreting the United States Constitution.

The Virginia Supreme Court observed that Virginia

Code § 19.2-74, unlike the statutory provision at issue

in Atwater, did not authorize the officers to make

a custodial arrest of Moore. Pet. App. at 7. After

analyzing the cases, the lower court concluded that

the officers were authorized to issue only a

summons to Moore for the offense of operating

a vehicle on a suspended license since none of

the exceptions in Code § 19.2-74 were present.

Thus, under the holding in Knowles, the

officers could not lawfully conduct a full

field type search. We find Knowles and

Lovelace controlling and hold that the search

of Moore was not consistent with the Fourth

Amendment.

Pet. App. at 11. In other words, the court below held

that the Fourth Amendment compelled suppression of

the evidence because of the violation of a state

statute.

¢

SUMMARY OF ARGUMENT

In ratifying the Fourth Amendment, the Framers

of our Constitution did not purport to constitutionalize

the many state rules that governed the arrest authority

of state officers. Instead, they were concerned with

curbing arbitrary action by agents of the newly

created United States, and in particular to prevent

the exactions common under the writs of assistance.

9

While standards for Fourth Amendment reasonableness

may vary depending on the particular governmental

action, over the past two centuries a standard has

emerged with respect to the constitutional propriety

of an arrest: an arrest is reasonable under the

constitution if it is made with probable cause. This

standard protects the people from arbitrary exactions

while affording clarity and uniformity to law enforcement.

Just as the Court has declined to incorporate strictures

based upon state law in assessing the constitutionality

of searches, it should do the same with respect to

arrests. Virginia thus simply asks this Court to

adhere to the time-tested standard of probable cause,

a standard that will maintain logic and consistency in

the Court’s jurisprudence.

As sovereign entities under our Constitution, the

States are free to craft additional protections for

suspects in criminal cases, so long as they do not

violate constitutional limitations. Constitutionalizing

these state laws will put federal courts in the

undesirable position of instructing state officers on

questions of state law and would make the federal

judiciary the enforcer of state law. The constitutional

standard governing the law of arrests would vary

with each state, and thus lose the virtue of

uniformity. Furthermore, a necessary adjunct of the

state power to craft criminal procedure statutes is

that States should be free to determine how to

remedy violations of these state statutes, including

state statutes that govern the law of arrests. Some

States will impose suppression as a remedy for

10

violations of their laws, whereas other States will

turn to different remedies. The remedy of exclusion of

evidence, designed to vindicate violations of the

United States Constitution, should not be applied to

enforce state statutes, particularly when the States

have not deemed this remedy appropriate. It also

would be incongruous to impose the remedy of

suppression of evidence based upon the violations of a

state statute, when the exclusionary remedy is not

compelled for violations of many federal laws.

Moore’s arrest was constitutionally proper because

the officers made the arrest based on probable cause.

Therefore, the officers could search incident to that

arrest. Once a suspect is arrested, the twin rationales

of officer safety and preservation of the evidence

apply. These justifications operate independently of

state laws. A review of the decisions of this Court

confirms the constitutional propriety of the arrest in

the case at bar and of the search incident to that

arrest.

Grafting the many state laws, regulations and

procedures onto the probable cause standard would

have undesirable consequences. First, it would inject

great complexity and confusion into an area of the

law that has long been settled. This Court has

recognized that officers in the field benefit from

straightforward, bright-line rules. A “probable cause

plus” standard, requiring courts to examine state

statutes in addition to probable cause, would be

the antithesis of the current standard. Moreover,

requiring every arrest to turn on probable cause and

-aw

11

any state law requirements is not necessary to

protect the citizens from law enforcement. The

probable cause standard protects the citizenry from

arbitrary police action. Nor is there an epidemic of

misdemeanor arrests that must be cured by departing

from settled constitutional analysis. Indeed,

constitutionalizing state statutes in this area would

trigger the application of the exclusionary rule. This,

in turn, would create a disincentive for States to

enact such laws. As a consequence, the public could

well lose the benefit of these supplemental

protections currently afforded to them under state

law.

¢

ARGUMENT

I. THE CONSTITUTIONAL STANDARD OF

PROBABLE CAUSE, NOT THE VAGARIES

OF STATE LAW, SHOULD CONTINUE TO

DETERMINE THE CONSTITUTIONALITY

OF AN ARREST.

The rule Virginia urges this Court to adopt is a

modest one, which would require this Court to do

nothing more than reaffirm longstanding precedent:

an arrest is-constitutionally valid if it is based on

probable cause. If the arrest is constitutionally valid,

the Constitution does not require suppression simply

because the arrest violates a provision of state law.

The Court should decline to graft the myriad

strictures of state law onto the historically validated

probable cause standard.

12

A. Neither the History Behind the

Adoption of the Fourth Amendment Nor

Its Application in Modern Times

Warrant the Incorporation of the State

Law of Arrests Into the Probable Cause

Standard.

1. The Fourth Amendment Was

Adopted to Protect Citizens From

Arbitrary Police Action, Not to

Govern the Minutia of an Officer’s

Arrest Authority Under State Law.

The debate surrounding the adoption of the Bill

of Rights does not evince any concern that officers

might conduct arrests in violation of particular state

laws governing arrests — which is unsurprising, since

the Bill of Rights did not apply to the States. Barron

v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247

(1833). Rather, the “indiscriminate searches and

seizures conducted under the authority of ‘general

warrants’ were the immediate evils that motivated

the framing and adoption of the Fourth Amendment.”

Payton v. New York, 445 U.S. 573, 583 (1980). “Vivid

in the memory of the newly independent Americans

were those general warrants known as writs of

assistance under which officers of the Crown had so

bedeviled the colonists. The hated writs of assistance

had given customs officials blanket authority to

search where they pleased for goods imported

in violation of the British tax laws.” Stanford v.

Texas, 379 U.S. 476, 481 (1965). “There is no

historical evidence that the Framers or proponents of

13

the Fourth Amendment, outspokenly opposed

to the infamous general warrants and writs of

assistance, were at all concerned about warrantless

arrests by local constables and other peace officers.’”

Atwater, 532 U.S. at 339-40.‘ Instead, “the purpose of

the Fourth Amendment was to protect the people of

the United States against arbitrary action by their

own Government.” United States v. Verdugo-Urquidez,

494 U.S. 259, 266 (1990) (emphasis added).°

Moore’s arrest, although problematic as a matter

of state statutory law, bears no resemblance to the

evils that prompted the ratification of the Fourth

Amendment. The requirement of probable cause as a

precondition for an arrest protects the citizenry from

the type of arbitrary exactions visited upon the

colonists. The existing standard satisfies the purpose

that motivated the ratification of the Fourth

Amendment.

* See also United States v. Watson, 423 U.S. 411, 429 (1976)

(Powell, J., concurring).

* See also United States v. Martinez-Fuerte, 428 U.S. 543,

554 (1976) (noting that the purpose of the Fourth Amendment is

“to prevent arbitrary and oppressive interference by

enforcement officials with the privacy and personal security of

individuals”).

14

2. The Modern Jurisprudence of this

Court Has Upheld as Reasonable

Arrests That Are Based on Probable

Cause.

Although “[t]he touchstone of the Fourth

Amendment is reasonableness,” United States v.

Knights, 534 U.S. 112, 118 (2001), the constitutionality

of an arrest does not turn on amorphous considerations

of reasonableness. “It is of course true that in

principle every Fourth Amendment case, since it

turns upon a ‘reasonableness’ determination, involves

a balancing of all relevant factors. With rare

exceptions not applicable here, however, the result of

that balancing is not in doubt where the search or

seizure is based upon probable cause.” Whren v.

United States, 517 U.S. 806, 817 (1996) (holding that

a traffic stop was proper when based on probable cause

and that a further assessment of reesonableness was

unnecessary). The Court has consistentiy refused to

* See also Maryland v. Pringle, 540 U.S. 366, 370 (2003) (“A

warrantless arrest of an individual in a public place for a felony,

or a misdemeanor committed in the officer’s presence, is

consistent with the Fourth Amendment if the arrest is supported

by probable cause.”); Atwater, 532 U.S. at 354 (“If an officer has

probable cause to believe that an individual has committed even

a very minor criminal offense in his presence, he may, without

violating the Fourth Amendment, arrest the offender.”); Michigan

v. DeFillippo, 443 U.S. 31, 37 (1979) (describing probable cause as

“the constitutional prerequisite for an arrest.”); Watson, 423 U.S.

at 417-24 (upholding as constitutional warrantless arrests based

on probable cause); United States v. Robinson, 414 U.S. 218, 235

(1973) (“A custodial arrest of a suspect based on probable cause

is a reasonable intrusion under the Fourth Amendment|.)”);

(Continued on following page)

15

dilute or expand the standard of probable cause in

favor of a broader “reasonableness” inquiry.’

“The requirement of probable cause has roots that

are deep in our history.” Henry v. United States, 361

U.S. 98, 100 (1959). The “long-prevailing standards” of

probable cause have embodied “the best compromise

that has been found for accommodating [the] often

opposing interests” in “safeguard[ing] citizens from

rash and unreasonable interferences with privacy” and

in “seek[ing] to give fair leeway for enforcing the law in

the community's protection.” Brinegar, 338 U.S. at 176.

The probable cause standard “reflects the benefit of

extensive experience accommodating the factors

relevant to the ‘reasonableness’ requirement of the

Fourth Amendment... .” Dunaway, 442 U.S. at 213.

The Court should hold fast to this wisdom.

To be sure, in other contexts, Fourth Amendment

reasonableness has imposed different requirements.

For instance, in the context of inventory searches

or traffic checkpoints, courts assessing the

Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (upholding

arrests based on the “long-prevailing” standard of probable

cause).

" See Whren, 517 U.S. at 817 (holding that traffic stop was

proper when based on probable cause and that a further

assessment of reasonableness was unnecessary); Dunaway uv.

New York, 442 U.S. 200, 213 (1979) (declining to abolish

probable cause in favor of a multi-factor balancing test to

determine the constitutionality of an arrest).

16

reasonableness of a search under the Fourth

Amendment will examine state law, policies,

regulations and procedures. Michigan Dep't of State

Police v. Sitz, 496 U.S. 444, 455 (1990) (upholding

drunk driving checkpoints). South Dakota ov.

Opperman, 428 U.S. 364, 376 (1976) (upholding

inventory searches). Tethering such suspicionless

searches to state policies, procedures, regulations

or statutes ensures that police are engaged in

the legitimate function of carrying out an inventory

or a checkpoint rather than as “a ruse for general

rummaging in order to discover incriminating

evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990).

Unlike inventory or traffic checkpoint searches,

the requirement of probable cause precludes the

government from engaging in _ suspicionless

rummaging. In the context of inventory searches or

traffic checkpoints, the statute, policy or regulation

ensures that the inventory search or the traffic

checkpoint is reasonable for Fourth Amendment

purposes, just as the probable cause requirement

ensures that an arrest is reasonable under the Fourth

Amendment. See Opperman, 428 U.S. at 376 (noting

that inventory searches conducted pursuant to

standard police procedures are reasonable); Sitz, 496

U.S. at 455 (drunk driving checkpoint based on

specific guidelines was reasonable under the Fourth

Amendment).

With respect to arrests, state law is relevant to

the application of the probable cause standard, but it

does not supply the standard itself. For example, a

17

particular act may constitute a crime in one State but

not in another. Therefore, an officer who has probable

cause to believe that a suspect has violated a

particular statute may properly arrest in the State

that has enacted such a statute, but may not arrest in

a

State where that statute does not exist. State law

operates as a factual backdrop to the application

of the standard mandated by the United States

Constitution. However, the probable cause standard

itself is a creature of the United States Constitution

rather than of state law. Another illustration of this

phenomenon outside of the Fourth Amendment

context are the cases under Jackson v. Virginia, 443

U.S. 307 (1979). Under Jackson, state law defines the

crime, but the Due Process standard flows from

the Constitution itself. That standard, derived

independently of the underlying law, is “whether,

after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could

have found the essential elements of the crime

beyond a reasonable doubt.” Jd. at 319.

In sum, while the Fourth Amendment standards

may differ depending on the particular government

action, in assessing the constitutionality of an arrest,

this Court has unswervingly concluded that “a

warrantless arrest by a law officer is reasonable

under the Fourth Amendment where there is

probable cause to believe that a criminal offense has

been or is being committed.” Devenpeck v. Alford, 543

U.S. 146, 152 (2004).

18

B. This Court Has Previously Declined to

Incorporate State Law in Assessing

the Constitutionality of Searches and

It Should Do So Again With Respect to

the Constitutional Law of Arrests.

The judgment below requires courts to examine,

in addition to probable cause, whether the arrest

occurred in conformity with state laws governing

arrests. With respect to searches, this Court has held

that the constitutional standard must operate

independently of state law. In evaluating the

admissibility of wiretap evidence obtained by state

officers, this Court concluded that if a Fourth

Amendment violation has occurred, it does not matter

that the officers were state officers rather than

federal officers. Elkins v. United States, 364 U.S. 206,

223 (1960). “[T]he test is one of federal law, neither

enlarged by what one state court may have

countenanced, nor diminished by what another may

have colorably suppressed.” Jd. at 223-24.

More recently, the Court rejected the argument

“that [a defendant’s} expectation of privacy in his

garbage should be deemed reasonable as a matter of

federal constitutional law because the warrantless

search and seizure of his garbage was impermissible

as a matter of [State] law.” California v. Greenwood,

486 U.S. 35, 43 (1988). This Court acknowledged that

States could impose more stringent constraints on the

police than those imposed by the United States

Constitution, but noted that it “had never intimated,

however, that whether or not a search is reasonable

19

within the meaning of the Fourth Amendment

depends on the law of the particular State in which

the search occurs.” Jd.

Given the holdings in Greenwood and Elkins, “it

would be incongruous to use state law to determine

whether the exclusionary rule should apply to a

search incident to arrest, but to use federal law to

determine whether the exclusionary rule should

apply to all other searches.” United States v. Wright,

16 F.3d 1429, 1436 (6" Cir. 1994). Adhering to the

probable cause standard would thus preserve the

consistency of this Court’s Fourth Amendment

jurisprudence.

Il, THE HOLDING BELOW IS INCOMPATIBLE

WITH OUR CONSTITUTIONAL SYSTEM OF

DUAL SOVEREIGNTY.

“As every schoolchild learns, our Constitution

establishes a system of dual sovereignty between the

States and the Federal Government.” Gregory uv.

Ashcroft, 501 U.S. 452, 457 (1991). “The States thus

retain substantial sovereign authority under our

constitutional system.” Jd. This residuum of

sovereignty means that States remain free to enact

certain policy choices into law — and to decide how to

remedy violations of these laws — so long as they do

not infringe on the protections afforded by the

National Constitution.

20

A. Incorporating State Law Into the

Constitutional Standard for Arrests

Will Place Federal Courts in an

Improper Supervisory Role Over

Questions of State Law.

Under the decision below, the constitutionality of

an arrest often will turn on a question of state law. If

this standard were adopted, federal courts

adjudicating habeas cases filed under 28 U.S.C.

§ 2254 and in civil rights cases under 42 U.S.C.

§ 1983, inevitably would have to “instruct[] state

officials on how to conform their conduct to state law.”

Pennhurst State Sch. and Hosp. v. Halderman, 465

U.S. 89, 106 (1984). “[S]uch a result conflicts directly

with the principles of federalism.” Jd. “[I)t is difficult

to think of a greater intrusion on state sovereignty.”

Id. The decision below also turns dual sovereignty on

its head by pressing the United States Constitution

into the service of a state statute. If “state law can

transform constitutional police conduct into its

opposite,” it would “unravel our federal system, since

treating a state law as a violation of the Constitution

‘is to make the federal government the enforcer of

state law.’” California v. McKay, 41 P.3d 59, 65 (Cal.

2002).°

* See also Archie v. City of Racine, 847 F.2d 1211, 1217 (7°

Cir. 1988).

21

B. The Judgment Below is Irreconcilable

With a Uniform Constitutional Standard

That Applies to all States.

There is an “important need for uniformity

in federal law,” Michigan v. Long, 463 U.S. 1032,

1040 (1983). The lower court’s rationale would inject

widespread and anomalous variations in the law

because the scope of constitutional protection from

arrest would advance or recede based on a State’s

boundaries. Persons in Virginia would benefit from

greater national constitutional protections, by virtue

of the existence of Virginia Code §19.2-74, than

would residents of States that do not have a

misdemeanor summons statute. Indeed, there likely

would be two constitutional standards within a

single State: the same arrest may be unconstitutional

if made by a Virginia officer, but ruled constitutional

if made by a federal officer, who is not subject to

Virginia Code § 19.2-74.° Furthermore, if adopted, the

standard below would signify that each time a state

legislature convened, it could modify’ the

constitutional standard by enacting state legislation

governing the conduct of the officers of that State.

* Under the Supremacy Clause, any contrary federal law

would clearly override state law governing the conduct of its

officers. U.S. Const. art. VI, cl. 2. Cf. Printz v. United States, 521

U.S. 898, 933 (1997) (State law enforcement cannot be

commandeered to enforce federal law).

22

C. If States Afford Criminal Defendants

Safeguards Beyond the National

Constitutional Minimum, Those

Safeguards Operate Separately From

the National Constitution Itself.

Although “a State is free as matter of its own law

to impose greater restrictions on police activity than

those this Court holds to be necessary upon federal

constitutional standards,” a State “may not impose

such greater restrictions as a matter of federal

constitutional. law when this Court specifically

refrains from imposing them.” Oregon v. Hass,

420 U.S. 714, 719 (1975). In a host of areas,

the States, including Virginia, have imposed

additional safeguards for criminal defendants. See

James N.G. Cauthen, Expanding Rights Under State

Constitutions: A Quantitative Appraisal, 63 ALBANY L.

REv. 1183 (2000)."° For example, Virginia has enacted

a strict speedy trial statute,” has provided for

discovery by defendants in criminal cases,” and has

° See also Susan King, State Constitutional Bibliography:

1989-1999, 31 RuTGceEeRs L.J. 1623 (2000) (summarizing research

on State Constitutional Law by State and topic).

" Virginia Code §19.2-243 (requiring dismissal with

prejudice if an incarcerated defendant is not brought to trial

within five months of a preliminary hearing or within nine

months of the preliminary hearing if the defendant is not

incarcerated pre-trial). Cf’ Barker v. Wingo, 407 U.S. 514, 530

(1972) (setting fourth a multi-factor test for assessing speedy

trial violations under the United States Constitution).

* See Va. S.Cr. Rutes 3A:11, 7C:5 and 8:15 (allowing

limited discovery in criminal cases). In contrast, “[t)here is no

(Continued on following page)

23

established multiple layers of appellate review in

criminal cases.” These provisions are not mandated

by the Nationa] Constitution, but simply represent a

policy choice on the part of the Virginia General

Assembly.

Similarly, the remedies for violating these

provisions should be the resort of state law rather

than matters of Constitutional magnitude. The

States, who draft these criminal procedure statutes,

should have the prerogative of determining how

violations of these statutes will be punished. See

Greenwood, 486 U.S. at 44 (noting that a State could

eliminate the exclusionary rule as a remedy for

violations of state law). To one State, the violation

of a particular procedure may seem especially

egregious, and that state can provide a stringent

remedy, such as the exclusionary rule. For example, if

a State wishes to require the suppression of evidence

seized outside of an officer’s jurisdictional boundary,

or because the officer should have issued a summons

instead of making an arrest, a State can so provide.“

general constitutional right to discovery in a criminal case.”

Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

See, e.g., Va. S. Ct. RULES Part 5 and 5A. Of course, the

United States Constitution does not provide a right to an appeal

in a criminal case. Rather, “|t)he right of appeal, as we presently

know it in criminal cases, is purely a creature of statute.” Abney

v. United States, 431 U.S. 651, 656 (1977). See also McKane uv.

Durston, 153 U.S. 684, 687 (1894).

“ New Mexico v. Bricker, 134 P.3d 800, 805-08 (N.M. Ct.

App. 2006) (New Mexico Constitution required suppression even

(Continued on following page)

24

Another State may conclude that the violation of

a particular state statute should be remedied through

administrative hearings or through the tort system —

or that a particular statute or regulation supplies a

guideline only, for which there is no remedy.

The decision concerning when the suppression

remedy is appropriate for violations of state law

should remain with the states. Subject to the

limitations of the United States Constitution, the

States may experiment with their laws. See New

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting). While the Constitution

allows the States to experiment, it does not penalize

the States if they fail to follow their own self-imposed

rules. The Constitution’s exclusionary rule penalizes

federal constitutional violations, see Elkins, 364 U.S.

at 217,” not violations of state law. Although a State

if United States Constitution did not); Nevada v. Bayard, 71

P.3d 498, 503 (Nev. 2003) (evidence seized following arrest that

contravened misdemeanor arrest statute must be suppressed

under the Nevada constitution); Ohio v. Brown, 792 N.E.2d 175,

177 (Ohio 2003) (Ohio Constitution provided greater protection

than United States Constitution and, therefore, evidence

seized after wrongful arrest for minor misdemeanor must be

suppressed), Montana v. Bauer, 36 P.3d 892, 897 (Mont. 2001)

(arrest improper under Montana law when offense carries no jail

time and evidence seized incident to the arrest must be

suppressed).

'* See generally Mapp v. Ohio, 367 U.S. 643 (1961). See also

United States v. Walker, 960 F.2d 409, 415 (5” Cir. 1992) (“[T}he

exclusionary rule was created to discourage violations of the

Fourth Amendment, not violations of state law.”).

25

may provide a suppression remedy for violations of

state law, the Constitution does not. To say otherwise

is to ignore the division of sovereignty between the

States and the National Government that is “a

defining feature of our Nation’s constitutional

blueprint.” Federal Mar. Comm’n v. South Carolina

Ports Auth., 535 U.S. 743, 751 (2002).

To illustrate, the current remedy for violations of

Virginia’s speedy trial statute is dismissal with

prejudice of the charges. Virginia Code § 19.2-243.

However, Virginia could employ a different remedy

if it so chose or even repeal the statute altogether.

Virginia could allow compensatory damages, sanctions

against the prosecutor, or some other mechanism to

remedy violations of its statute. So long as Virginia

did not infringe on the defendant’s constitutionally

protected rights, it could implement whatever remedy

the legislature deemed appropriate. The same

principle should apply regarding the law of arrests.

With respect to the misdemeanor-summons

statute, the remedy available to a wrongfully arrested

suspect under Virginia law is a civil action in tort

for false arrest, rather than application of an

exclusionary rule. See Jordan v. Shands, 500 S.E.2d

215, 218 (Va. 1988) (discussing false arrest tort).”*

Furthermore, under longstanding Virginia law,

citizens have the right to resist an illegal arrest.

** See also DeChene v. Smallwood, 311 S.E.2d 749, 751 (Va.

1984) (same).

3

26

Virginia v. Hill, 570 S.E.2d 805, 808 (Va. 2002)

(noting right under Virginia law, rooted in the

common law, to resist an illegal arrest).” A Virginia

officer who chooses to flout Virginia Code § 19.2-74,

therefore, acts at his own peril.” Thus, Virginia law

provides time-honored remedies for arrests made in

violation of its laws, even though the remedies do not

include suppression.”

D. The Constitution’s Exclusionary Rule

Should not be Extended to Vindicate

State Statutes.

The purpose of the exclusionary rule is to deter

violations of constitutional rights. See Elkins, 364

U.S. at 217. Absent the state statute at issue, there

would be no question that Moore’s arrest was proper.

Atwater, 532 U.S. at 354-55. Moore conceded at trial

that he had a suspended license and, thus, the

" See also McCracken v. Virginia, 572 S.E.2d 493, 497 (Va.

Ct. App. 2002) (same).

* Although not addressed in the opinion below, Virginia

law provides a parallel misdemeanor-summons statute for

traffic offenses, Virginia Code § 46.2-936. This statute specifies

an even more draconian remedy. Any officer who violates

Virginia Code § 46.2-936 is “guilty of malfeasance in office” and

can be removed “upon complaint filed by any person in a court of

competent jurisdiction.”

* In Virginia, “absent an express statutory provision for

suppression,” Troncoso v. Commonwealth, 407 S.E.2d 349, 350

(Va. Ct. App. 1991), “searches or seizures made contrary to

provisions contained in Virginia statutes provide no right of

suppression.” Jd.

27

officers had probable cause to arrest. J.A. at 19.

Holding that the Constitution requires suppression

under such circumstances would inappropriately

expand the scope of the exclusionary rule beyond its

doctrinal foundation of vindicating constitutional

interests. Furthermore, there is no justification

for automatic suppression following violation of a

state statute when suppression is not automatically

required for violations of federal treaties, statutes, or

regulations.”

The fact that an arrest is authorized by statute

will not prevent suppression if the arrest violates the

Constitution. Elkins, 364 U.S. at 217. Conversely, as

long as the arrest conforms to the Constitution,

because the arrest is based on probable cause, the

absence of statutory authority under state law to

make an arrest should not trigger suppression under

the Constitution. For example, there is no statutory

authority for private persons to trespass onto private

property, remove evidence and take it to the police.

Yet, the actions by such third parties would not

trigger the suppression of this evidence. Bourdeau

v. McDowell, 256 U.S. 465, 476 (1921). Just as

the presence of authority will not salvage an

* See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2680-82

(2006) (suppression not an appropriate remedy for a violation of

the Vienna Convention on Consular Relations); United States v.

Donovan, 429 U.S. 413, 432-32 n.22 (1977) (denying exclusion

for violation of wiretapping statute); United States v. Caceres,

440 U.S. 741, 755 (1979) (violation of IRS eavesdr ping

regulation did not require suppression).

28

unconstitutional arrest, the absence of authority

under state law should not require the suppression of

evidence obtained following an arrest that is

constitutional because it is founded on probable

cause.

The suppression of evidence should be a last

resort, not a first impulse. Hudson v. Michigan, 126

S. Ct. 2159, 2163 (2006). Among other things, the

Constitution’s exclusionary rule exacts “substantial

social costs,” including the release of dangerous

criminals. Jd. at 2163. Instead of promoting respect

for the law, if the exclusionary rule is “applied

indiscriminately[,] it may well have the opposite

effect of generating disrespect for the law and

administration of justice.” Stone v. Powell, 428 U.S.

465, 491 (1976). Where a State has not deemed it

appropriate to implement a state law exclusionary

rule as a deterrent for a violation of its own law, the

constitutional remedy of exclusion of evidence should

not be forced upon the States.

29

Il. UNDER THIS COURT’S JURISPRUDENCE,

THE OFFICER’S SEARCH OF MOORE

INCIDENT TO HIS ARREST WAS

CONSISTENT WITH THE FOURTH

AMENDMENT.

A. An Officer Can Search Incident to an

Arrest That Is Lawful Under the

Constitution.

A search incident to arrest is permissible if based

on a “lawful” arrest. Robinson, 414 U.S. at 224.” In

Robinson, the Court specified what it meant by a

“lawful” arrest: “[A] custodial arrest of a suspect

based upon probable cause is a reasonable intrusion

under the Fourth Amendment; that intrusion being

lawful, a search incident to the arrest requires no

additional justification.” Jd. at 235. As Professor

LaFave notes, the phrase “lawful custodial arrest” in

these cases “refers not to the limitations of state law

but rather to an overarching principle that all it takes

to make a custodial arrest reasonable in a Fourth

Amendment sense is that it be based on probable

cause.” 1 Wayne R. LaFave, Search and Seizure,

§ 1.5B (4” ed. 2004).

Furthermore, once an officer has made a

constitutionally valid arrest, the officer can search

incident to that arrest. “Conditioning a search

incident to arrest on the degree to which an otherwise

*" See also Preston v. United States, 376 U.S. 364, 367

(1964); Harris v. United States, 331 U.S. 145, 151 (1947).

30

constitutional arrest complies with state procedure

. makes no sense.” McKay, 41 P.3d at 70. The

justifications for searches incident to arrest are the

need to protect the safety of the officer — and other

suspects — and preserving evidence justify a search

incident to a constitutionally permissible arrest.

Knowles, 525 U.S. at 116. Neither of these rationales

depends upon the arrest’s compliance with state law.

Finally, if the arrest is constitutional, because it is

based on probable cause, there is no “poisonous tree”

from which the fruit must be suppressed.

B. This Court Has Never Held That a

Violation of State Law Renders an

Arrest Constitutionally Unlawful.

1. Atwater and Knowles Are

Inapplicable to the Issue of

Whether the Constitution Requires

Suppression Because the Arrest

Violates State Law.

The lower court, relying on this Court’s decisions

in Atwater and Knowles, concluded that the search

incident to arrest violated Moore’s rights under the

United States Constitution. Pet. App. at 11. Those

cases are inapplicable to the issue presented in the

case at bar. In Knowles, this Court held that the

Constitution could not support a search incident to

the issuance of a citation, because the concerns

underlying the search incident to arrest — officer

safety and the need to preserve evidence for trial — do

not apply to a situation where the officer issued a

31

citation. 525 U.S. at 118-19. Here, however, the

officers were not issuing a citation; they made a full

custodial arrest. Therefore, Knowles sheds no light on

the present case.

In Atwater, this Court held that a full custodial

arrest for a seatbelt violation did not violate the United

States Constitution. Atwater, 532 U.S. at 354-55. While

the Texas statute at issue authorized the officer to

make a full custodial arrest, the decision did not turn

on that fact. Jd. at 323, 354. Given the background of

state law in Atwater, the issue presented by Moore

was not present.

Atwater does, however, support the position of

Virginia in several important respects. After an in-depth

examination of the historical evidence, the Court

concluded that “[nJeither the history of the framing

era nor subsequent legal development indicates that

the Fourth Amendment was originally understood, or

traditionally has been read” to preclude an arrest for

a minor offense. Jd. at 336. The offense at issue in

Atwater was a non-jailable seatbelt violation. Jd. at

323. In contrast, in the case at bar, the officers had

probable cause to believe Moore had committed a

crime punishable by a maximum sentence of 12

months in jail.” The Court further concluded that the

balancing tests urged by the defendant were

* Virginia Code § 46.2-301 (driving on a suspended license

a Class 1 misdemeanor); Virginia Code §18.2-10 (Class 1

misdeme .ors punishable by up to 12 months in jail).

32

impracticable, particularly when compared with the

simplicity of the longstanding probable cause test. Id.

at 346-54. Atwater thus provides strong support for

the standard Virginia urges this Court to re-affirm.

2. Neither Di Re nor DeFillippo

Command the Constitutional Remedy

of Suppression for a Mere Violation of

State Law.

Neither United States v. Di Re, 332 U.S. 581

(1948), nor DeFillippo, 443 U.S. 36, lend support to

the view that the constitution requires suppression of

the fruits of a search for an arrest that is based upon

probable cause, but the arrest violates a state statute.

In Di Re, this Court reversed a federal conviction for

possession of counterfeit gasoline coupons. Di Re, 332

U.S. at 582. The United States argued that the search

could be justified as a search incident to the arrest.

Id. at 587. The Court held that “in the absence of an

applicable federal statute, the law of the state where

an arrest without warrant takes place determines it.”

Id. at 589. In so holding, the Court drew from a

federal statute, since amended, which provided that

an arrest by judicial process for a federal offense

must be made “agreeably to the usual mode of process

against offenders in such State.” Id. at 589.” The

Court reasoned that if federal statutory law required

* The successor statute does not require that an arrest be

agreeable to the usual state process. 18 U.S.C. § 3041.

33

compliance with state law for arrests with a warrant,

federal courts should logically turn to state law to

determine the validity of arrests without a warrant.

Id. at 589-90. Since the arrest in Di Re was invalid

under New York law, the Court held that the fruits of

the search incident to arrest should be suppressed.

Id. at 595.

First, as the text of Di Re shows, and as a

number of courts have concluded, the decision was

grounded not in the United States Constitution but

on the supervisory power of this Court to exclude

evidence under circumstances deemed improper but

not unconstitutional.” Second, as several appellate

courts have recognized, the holding in Di Re is no

longer valid in light of the Court’s subsequent

holdings in Elkins, 364 U.S. at 224, and Greenwood,

486 U.S. at 43-44.”

* See Wright, 16 F.3d at 1435; Walker, 960 F.2d at 416;

McKay, 41 P.3d at 66-67; Street v. Surdyka, 492 F.2d 368, 373

n.7 (4” Cir. 1974). See also LaFave, Search and Seizure at § 1.5

(“a close inzpection of the Di Re decision indicates that the use of

state law there was ‘based on non-constitutional considerations’ ”).

* See Wright, 16 F.3d at 1434-36; Walker, 960 F.2d at 416;

McKay, 41 P.3d at 66-67. In this connection, United States v.

Garcia, 462 U.S. 1127 (1983), is worth noting. The Fifth Circuit

had ordered evidence suppressed because the seizure of

marijuana from the defendants’ truck contravened the officers’

arrest authority under Texas law. United States v. Garcia, 676

F.2d 1086, 1093-94 (5” Cir. 1982). Under Texas law, the game

warden’s authority was limited to state parks and to violations

of hunting laws, but the officer made the arrest outside of the

state park, for an offense not connected to hunting laws. Jd. This

(Continued on following page)

34

In Johnson v. United States, 333 U.S. 10 (1948),

this Court concluded that the evidence must be

suppressed because the officers made a warrantless

entry of a hotel room when no exigent circumstances

were present. Jd. at 12-15. The United States asked

the Court to uphold the search on the basis of a

search incident to arrest. Jd. at 15. In a footnote, the

Court cited Di Re for the proposition that “[s]tate law

determines the validity of searches without warrant.”

Id. at 15 n.5. Johnson thus mentions, in passing, the

prudential rule announced in Di Re to govern the

conduct of federal law enforcement. It does not

purport to transform Di Re’s non-constitutional

holding into a constitutional rule.

Furthermore, the Court held that the officers

lacked probable cause to make the arrest until they

gained entry into the defendant’s hotel room and,

therefore, the officers could not rely on the facts

gleaned from the illegal entry to justify the arrest

or the search incident to arrest. Johnson, 333 U.S. at

16-17. Thus, the admissibility of the incriminating

evidence did not turn on state law, but rather on

the fact that the officers lacked probable cause.

This footnote in Johnson, in addition to reiterating

the prudential doctrine announced in Di Re, is

Court reversed and remanded in light of United States v. Ross,

456 U.S. 798 (1982) (holding that an officer who has probable

cause to search an automobile may search compartments in the

automobile). Garcia, 462 U.S. at 1127. This result cannot be

reconciled with Di Re if Di Re announced a constitutional rule.

,

35

also dicta. The Court is not bound by such dicta.

Central Virginia Cmty. Coll. v. Katz, 546 U.S. 356,

363 (2006).

DeFillippo also is inapposite. The Court

ultimately held that even if an ordinance is later held

unconstitutional, an officer can reasonably rely on it

to affect an arrest, 443 U.S. at 40. The Court stated in

passing that, “whether an officer is authorized to

make an arrest ordinarily depends, in the first

instance, on state law.” Jd. State law “is relevant to

the validity of the arrest and search only as it

pertains to the ‘facts and circumstances’ we hold

constituted probable cause for arrest.” Jd. In other

words, probable cause is the constitutional standard,

but state law defines the crime for which the officer

must have probable cause. See Ryan v. County of

DuPage, 45 F.3d 1090, 1093 (7" Cir. 1995). Moreover,

the statement in DeFillippo is again dicta, because

the defendant did “not contend that the arrest was

not authorized by Michigan law.” DeFillippo, 443 U.S.

at 36.

In the years since this Court in Mapp applied the

Constitution’s exclusionary rule to the States, this

Court has “never taken the position that an arrest

made on probable cause violates the Fourth

Amendment merely because a taking of custody was

deemed unnecessary (as a matter of state law or

otherwise).” 1 Wayne R. LaFave, Search and Seizure,

at § 1.5(b) (emphasis in original). Because the arrest

conformed to the Constitution, the officer could

search incident to that arrest.

36

C. Relying on This Court’s Jurisprudence,

the Lower Courts Overwhelmingly Have

Rejected the Rationale of the Supreme

Court of Virginia.

Most of the United States Courts of Appeals have

rejected the argument that officers who arrest based

on probable cause, but violate a state statute

governing the arrest, act in violation of the United

States Constitution.” This consensus provides

* See United States v. Van Metre, 150 F.3d 339, 346-47 (4”

Cir. 1998) (confessions were admissible even though the arrest

violated Tennessee law, which required police to obtain a

fugitive of justice warrant; at the time of the arrest the officers

had three valid warrants); United States v. Bell, 54 F.3d 502, 504

(8” Cir. 1995) (arrest for operating a bicycle without a headlight

violated Iowa law but not the United States Constitution

because it was based on probable cause); Wright, 16 F.3d at 1437

(stricter requirements of Tennessee law for warrantless arrests

irrelevant where officers had probable cause; therefore,

suppression of drug evidence seized from defendant’s rental car

not required); Walker, 960 F.2d at 415-17 (methamphetamine

need not be suppressed if officers had probable cause to arrest;

whether arrest violates Texas law irrelevant for purposes of

constitutional analysis). Some courts, before Atwater, have ruled

otherwise. See United States v. Mota, 982 F.2d 1384, 1387 (9”

Cir. 1993); contra Barry v. Fowler, 902 F.2d 770, 772 (9" Cir.

1990) (concluding that the violation of a California statute in

making the arrest was irrelevant to Fourth Amendment

analysis, which turned on the existence of probable cause);

United States v. Trigg, 878 F.2d 1037, 1041 (10" Cir. 1989)

(reasonableness of arrest for misdemeanor depends on probable

cause and strictures of state law and customary practices);

contra United States v. Miller, 452 F.2d 731, 733 (10* Cir. 1971)

(under state law, officers should not have arrested defendant for

a misdemeanor that did not occur in the officers’ presence;

(Continued on following page)

37

persuasive authority for reversing the decision below.

Similarly, when confronted with a 42 U.S.C. § 1983

action alleging that the Fourth Amendment was

violated because an arrest was impermissible under

state law, a strong consensus has emerged among

federal appellate courts rejecting the argument that

an arrest that was improper under state law and

rendered the arrest unconstitutional under the

Fourth Amendment.” Finally, state courts that have

considered the issue have rejected a “probable cause

plus” standard that would incorporate state law.”

however, since arrest was founded upon probable cause,

suppression of sawed-off shotgun was not required).

” See Knight v. Jacobson, 300 F.3d 1272, 1276 (11° Cir. 2002)

(arrest for misdemeanor assault that did not occur in officer’s

presence violated state law but not federal law; § 1983 lawsuit was

dismissed because “[t]here is no federal right not to be arrested in

violation of state law.”); Vargas-Badillo v. Diaz-Torres, 114 F.3d 3, 6

(1" Cir. 1997) (section 1983 relief unwarranted because officers

acted with probable cause; Puerto Rico rule of court prohibiting

arrest for misdemeanors that do not occur in the officer’s presence

did not affect constitutional standard); Gordon v. Degelmann, 29

F.3d 295, 301 (7” Cir. 1994) (fact that defendant was entitled to a

hearing under Illinois law to challenge his removal as a trespasser

was irrelevant; officers did not face § 1983 liability when their

arrest was made with probable cause); Anderson v. Haas, 341 F.2d

497, 498-99 (3” Cir. 1965) (in civil rights action, district court

erroneously concluded that validity of officer’s arrest hinged on

state law). But see Malone v. County of Suffolk, 968 F.2d 1480 (2™

Cir. 1992) (citing Di Re among other authorities for the proposition

that the constitutionality of an arrest can be assessed according to

state law in a § 1983 action).

* See New Hampshire v. Smith, 908 A.2d 786, 790 (N.H. 2006)

(arrest was not unconstitutional even though it was made outside

of jurisdictional boundary @s:defined by state law); McKay, 41 P.3d

(Continued on following page)

38

This Court should reaffirm the constitutional validity

of an arrest that is founded on probable cause,

whether or not the arrest infringes on some provision

of state law. “The test is one of federal law, neither

enlarged by what one state court [or legislature] may

have countenanced, nor diminished by what another

may have colorably suppressed.” Elkins, 364 U.S. at

224.

at 65-72 (defendant's arrest for riding a bicycle in the wrong

direction on a residential street violated state law, but because

arrest was based on probable cause it did not violate the United

States Constitution); Michigan v. Hamilton, 638 N.W.2d 92, 97-98

(Mich. 2002) (evidence seized by police outside the territorial limit

of their authority violated state law but did not violate the

Constitution), Ohio v. Droste, 697 N.E.2d 620, 623 (Ohio 1998)

(liquor control officers lacked statutory authority to arrest in this

specific situation but suppression was unwarranted because

officers had probable cause to arrest), Maine v. Jolin, 639 A.2d

1062, 1064 (Me. 1994) (rejecting argument that arrest beyond

territorial jurisdiction as defined by state law violated the United

States Constitution); Massachusetts v. Lyons, 492 N.E.2d 1142,

1144-46 (Mass. 1986) (defendant’s arrest was improper under state

law because he was not provided notice to challenge misdemeanor

complaint; however, suppression of witness’s identification must be

denied because the arrest was made with probable cause); Colorado

v. Hamilton, 666 P.2d 152, 157 (Colo. 1983) (arrest made beyond

officer’s territorial jurisdiction did not violate the United States

Constitution even if it violated state law); North Carolina uv.

Eubanks, 196 S.E.2d 706, 709 (N.C. 1973) (offense of driving under

the influence did not occur in officer’s presence and, therefore,

violated state law; nevertheless, suppression was not warranted

because the officer acted with probable cause and thereby satisfied

the National Constitution)

39

IV. THE DECISION BELOW IS IMPRACTICAL

AND UNNECESSARY FROM A POLICY

STANDPOINT.

A. Grafting State Law Strictures Onto

the Simple Probable Cause Standard

Would Inject Needless Complexity Into

the Law.

At present, the probable cause _ standard,

unfettered by further state law requirements, has the

virtue of simplicity, clarity and uniformity. See Texas

v. Brown, 460 U.S. 730, 742 (1983) (noting that “probable

cause is a flexible, common-sense standard.”).” In

contrast to the simple, well-established rule of probable

cause, constitutionalizing the myriad state rules

governing arrests would inject considerable complexity

and uncertainty into the constitutional law of arrest.

Some States, like Virginia, have restricted an officer’s

arrest authority with respect to misdemeanor

offenses.” An officer’s authority might be limited to a

particular category of offense. For example, a game

warden might be limited to making arrests for

* See also Brinegar, 338 U.S. at 176 (“The rule of probable

cause is a practical, nontechnical conception affording the

best compromise that has been found for accommodating ...

opposing interests. Requiring more would unduly hamper law

enforcement.”).

* See Iowa Code § 805.16 (mandating release on a summons

for certain offenses); Kentucky Rev. Stat. § 431.015 (same);

Nebraska Rev. Stat. § 29-435 (same); New Mexico Stat. § 66-8-123

(same); Ohio Rev. Code § 2935.26 (same).

40

hunting offenses.” An officer tasked with enforcing

the laws relating to alcohol may have arrest authority

limited to that particular sphere.” A police officer’s

authority might be limited to a particular geographic

area.” Other restrictions on the authority to arrest

might stem from regulations, local policies and

practices, or orders from within the police hierarchy.

These regulations might restrict, for example, the

authority of police officers who work off-duty in

shopping malls or night clubs.”

If this Court adopted a “probable cause plus state

law” standard, a host of questions would arise. Would

all state criminal procedure statutes governing arrests

be incorporated into the expanded Constitutional

standard, or only certain statutes? If so, which ones?

For example, would statutes limiting arrests to a

particular jurisdiction require suppression of evidence

seized incident to an arrest that occurs outside that

territory? A number of statutes require officers making

*" See Garcia, 676 F.2d at 1093-94 (discussing limited arrest

authority of Texas game wardens), rev'd by Garcia, 462 U.S. at

1127.

* See Droste, 697 N.E.2d at 623 (discussing restricted

arrest authority of liquor control investigators).

* See, e.g., Smith, 908 A.2d at 790; Hamilton, 638 N.W.2d at

97-98; Jolin, 639 A.2d at 1064; Hamilton, 666 P.2d at 157.

“ See Virginia Code §15.2-1712 (authorizing municipal

governments to enact ordinances permitting local police to work

off-duty, including to exercise their arrest powers, and further

permitting municipalities to allow police departments to

promulgate “reasonable rules” governing off-duty employment).

41

an arrest to wear a uniform and/or to display a badge

of authority.” Would a failure to display the badge or

to wear a uniform require suppression? Would federal

officers be bound by these state statutes and

regulations, particularly when the federal officers are

cross-designated with state arrest authority?” Would

federal courts be required to consult these state

statutes when state law enforcement officers testify

in federal court? Which law would control when the

prosecution occurs in one state but evidence was

ubtained in violation of the law of a sister state?

Would ary defenses be applicable, and, if so, which

ones? Would a violation of regulations and policies

adopted by local governments or police departments

provide grounds to challenge an arrest as

* See Montana Code Ann. § 61-8-703 (2007) (authorizing

arrest for speeding if the officer is in uniform or displays his

badge of authority); Nebraska Rev. Stat. § 60-6, 192 (2007)

(permitting arrests for speeding if the officer, inter alia, “[i]s in

uniform and displays his or her badge of authority”); North

Dakota Cent. Code § 39-03-15 (2007) (authorizing warrantless

arrests when speeding is determined by radar, provided the

officer “is in uniform or displays the officer’s badge of

authority”); Virginia Code §46.2-102 (generally requiring

officers in traffic cases to be uniformed or to display a badge of

authority).

* Cross-designation of state and federal officers is a

common practice. See, e.g., Federal Bureau of Investigation, St.

Louis Metro. Fugitive Task Force, http//stlouis.fbi.gov/coordination.htm

(last visited Oct. 30, 2007) (noting that, in an effort to combat

violent crime, “le]ach federal officer has been cross-designated as

a peace officer in the state of Missouri.”).

42

unconstitutional, or would the constitutionality of an

arrest be limited to state statutes?

Jurisprudential questions aside, a host of

practical difficulties would arise. Under state

misdemeanor-summons statutes, it will often be

unclear whether the crime at issue is a misdemeanor

or a felony. For example, under Virginia law, theft of

an item worth more than $200 is a felony, Virginia

Code § 18.2-95, for which an officer may effect a full

custodial arrest. On the other hand, theft of an item

valued at less than $200 is petit larceny, a Class 1

misdemeanor, Virginia Code § 18.2-96, for which a

summons is generally required. Virginia Code § 19.2-74.

The value of an item often is not immediately

apparent to the arresting officer. Or an officer may in

good faith make an erroneous judgment about the

propriety of an arrest under one of the exceptions to

the misdemeanor summons statute. Other States no

doubt have similar exceptions that will dramatically

increase the complexity of arrests as well suppression

hearings.

Statutes linking the power to arrest to

jurisdictional boundaries within a State can have

their own complexities. For example, Virginia Code

§ 19.2-250 provides that an officer’s jurisdiction

extends to one mile beyond his jurisdictional

boundary,

except that such jurisdiction of the corporate

authorities of towns situated in counties

having a density of population in excess

43

of 300 inhabitants per square mile, or

in counties adjacent to cities having a

population of 170,000 or more, shail extend

for 300 yards beyond the corporate limits of

such town or, in the case of the criminal

jurisdiction of an adjacent county, for 300

yards within such town.

For investigations that cross state lines, officers

would have to determine which State’s law of arrest

should govern.

This Court has “traditionally recognized that a

responsible Fourth Amendment balance is not well

served by standards requiring sensitive, case-by-case

determinations of government need, lest every

discretionary judgment in the field be converted into

an occasion for constitutional review.” Atwater, 532

U.S. at 347. “A single, familiar standard is essential

to guide police officers, who have only limited time

and expertise to reflect on and balance the social

and individual interests involved in the specific

circumstances they confront.” Dunaway, 442 U.S. at

213-14. Re-affirming the probable cause standard

would ensure continuing uniformity and simplicity in

all state and federal] courts. In contrast, importing

state law, regulations and policies into the

constitutional analysis of an arrest will prove very

difficult to administer not only for courts but also for

officers who must make difficult decisions “on the

spur (and in the heat) of the moment.” Atwater, 532

U.S. at 347. The Court should decline to cast aside

44

the time-tested probable cause standard in favor of

some unproven and far more complex standard.

B. Constitutionalizing State Laws

Governing Arrests Is not Necessary

to Protect the Citizenry and May

Well Prove Counterproductive.

Refusing to graft state law strictures onto the

probable cause standard will not leave the citizenry

at the mercy of overzealous law enforcement. First,

any arrest must be based upon probable cause. This

standard provides a safeguard against arbitrary

action by the police. “The long-prevailing standard of

probable cause protects ‘citizens from rash and

unreasonable interferences with privacy and from

unfounded charges of crime.’” Pringle, 540 U.S. at

370.” Suppression motions are granted on a routine

basis when law enforcement act without probable

cause in the case of an arrest, or without reasonable

suspicion while making a Terry” stop. In addition,

state officers are also held accountable through

whatever remedies the States have seen fit to impose

for violations of their particular statutes.

Second, with respect to misdemeanor-summons

statutes, the Nation is not “confronting anything like

an epidemic of unnecessary minor-offense arrests”

owing, in part, to the “good sense” of law enforcement

” See also Brinegar, 338 U.S. at 176.

* Terry v. Ohio, 392 U.S. 1 (1968).

45

who have neither the desire nor the resources to

make full custodial arrests in every possible instance.

Atwater, 532 U.S. at 353. Indeed, “it is in the interest

of police to limit petty-offense arrests, which carry

costs that are simply too great to incur without good

reason.” Jd. at 352. Therefore, any argument that the

“probable cause plus” standard is necessary to protect

the people is without merit.

That the probable cause standard is adequate to

protect the citizenry can be seen in the disposition of

the issue in the case at bar by the lower courts. As

noted above, state and federal courts that have

addressed the issue have overwhelmingly concluded

that an arrest that is based on the probable cause is

constitutional, regardless of any strictures of state

law. This conclusion has not placed citizens in those

jurisdictions at the mercy of rampant exactions at the

hands of their state governments.

In the long term, it is far from obvious that

constitutionalizing state criminal procedure statutes

on the subject of arrest would amount to a triumph

for civil liberties. At present, the States are free to

impose strictures on their officers’ powers of arrest

and can determine how to punish an officer who

violates those strictures. Constitutionalizing those

laws would mandate the suppression remedy. State

legislatures will be more reluctant to enact such laws

if the cost is the suppression of relevant evidence and

the release of dangerous criminals. The net result of

extending the applicability of the exclusionary rule is

46

likely to be an erosion of state law protections rather

than a strengthening of those protections.

This Court’s experience with constitutional

standards in the context of procedural due process

challenges to prison regulations is instructive. In

Hewitt v. Helms, 459 U.S. 460 (1983), the Court

adopted a methodology for assessing the creation of

liberty interests that examined whether “mandatory

language and substantive predicates created an

enforceable expectation that the State would produce

a particular outcome with respect to the prisoner’s

conditions of confinement.” Sandin v. Conner, 515

U.S. 472, 481 (1995). After experiencing growing

frustration with this methodology, this Court found

that detailed oversight of these regulations “creates

disincentives for States to codify prison management

procedures in the interest of uniform treatment.” Jd.

at 482.

Prison administrators need be concerned

with the safety of the staff and inmate

population. Ensuring that welfare often

leads prison administrators to curb the

discretion of staff on the front line who

daily encounter prisoners hostile to the

authoritarian structure of the prison

environment. Such guidelines are not set

forth solely to benefit the prisoner. They also

aspire to instruct subordinate employees how

to exercise discretion vested by the State in

the warden, and to confine the authority of

prison personnel in order to avoid widely

different treatment of similar incidents. The

approach embraced by Hewitt discourages

47

this desirable development: States may avoid

creation of “liberty” interests by having

scarcely any regulations, or by conferring

standardless discretion on _ correctional

personnel.”

Id. In similar fashion, if the state statutes, regulations

and policies that govern the arrest authority of state

officers triggered the application of the exclusionary

rule, it would create perverse incentives for the States

to avoid such restrictions. States will instead either

avoid such laws altogether or they will confer on their

officers a standardless discretion that is neither

desirable from the viewpoint of the State nor of the

citizens who encounter law enforcement.

¢ {

48

CONCLUSION

For the reasons stated above, and in the amici

briefs supporting Virginia, the judgment of the

Supreme Court of Virginia should be REVERSED.

Respectfully submitted,

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy Attorney General

WILLIAM E. THRO MARLA GRAFF DECKER

State Solicitor General Deputy Attorney General

Counsel of Record LEAH A. DARRON

STEPHEN R. MCCULLOUGH Senior Assistant

Deputy State Attorney General

Solicitor General Ornice oF Tum

ATTORNEY GENERAL

900 East Main Street

Richmond, Virginia 23219

Telephone: (804) 786-2436

Facsimile: (804) 786-1991

Counsel for the

November 5, 2007 Commonwealth of Virginia