Respondents Brief — Virginia v. Moore
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S407 @
OS pape __No. 06-1082 ei Pr
IN THE DEC 3 - 2007
Supreme Court of the United es S
E OF TH
UPREME COURT US
COMMONWEALTH OF VIRGINIA,
Petitioner,
v.
DAVID LEE MOORE,
Respondent.
On Writ Of Certiorari
To The Supreme Court Of Virginia
BRIEF FOR THE RESPONDENT
Pamela S. Karlan S. Jane Chittom
Jeffrey L. Fisher Couxsel of Record
STANFORD LAW SCHOOL Stacie A. Cass
SUPREME COURT OFFICE OF THE APPELLATE
LITIGATION CLINIC DEFENDER
559 Nathan Abbott Way 701 E. Franklin St., Ste. 1001
Stanford, CA 94305 Richmond, VA 23219
: (804) 225-3598
Amy Howe
Kevin K. Russell Thomas C. Goldstein
HOWE & RUSSELL, P.C. Steven C. Wu
4607 Asbury Place, NW AKIN GUMP STRAUSS
Washington, D.C. 20016 HAUER & FELD LLP
ge New Hampshire Ave.,
Washington, D.C. 20036
December 3, 2007
Counsel for Respondent
WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002
—— << ee
QUESTION PRESENTED
Whether an arrest (and incident search) for a
nonarrestable offense is unreasonable under the Fourth
Amendment because the legislature has determined
that an arrest furthers no governmental interest.
ll
TABLE OF CONTENTS
tg Ds y___ EE i
TNE iv
TIE i ccielieicalineineaaindpads l
EE ipnndiinidstoniceesstpetcinniconeiinanasisenininsiionsideiatetiitentet I
RELEVANT CONSTITUTIONAL AND
TE 2
IN HRT ETS TOIO TD 3
SUMMARY OF ARGUMENT .................sccscsssossossssosersnsers 6
ITE etentecencnsinniniaiicanines (pniiinadiieasanetaniaiitsietiadetinietiians 10
I. An Arrest For An Offense That State Law
Deems Nonarrestable Is Unreasonable
Because It Furthers No Substantial
ALLELE 11
A. An Arrest And Search Constitute
Significant Intrusions On Individual
Liberty That Are “Reasonable” Under
The Fourth Amendment Only If Justified
By A Significant Governmental Interest.......... 11
B. A Legislative Determination That ~
Conduct Is Not Arrestable Embodies A
Definitive Judgment That The
Government’s Interests Are Not
Furthered By Custodial Detention. ................... 14
C. Holding That Arrests For Nonarrestable
Offenses Nonetheless Are Constitutional
Would Contradict The Purpose Of The
Fourth Amendment To Prevent
Unwarranted And Unjustified Intrusions
On Individual Liberty And Privacy................... 23
i
D. This Court’s Precedents Establish That
An Arrest And Search Violate The
Fourth Amendment If Prohibited By
| RIESE EPS AE eee ee 27
E. The Search Incident To Arrest Was In
Any Event Unconstitutional Because It
Ne I i Bi ctcisciscnctesisssscteiciaventiqnsesinsaciees 31
II. Petitioner’s Arguments For Reversal Lack
peeked iateclsacanshitapunieiahdacdinieinbheiilebiaaaiiiainicaeniniven 34
A. Mere Probable Cause To Believe An
Offense Has Occurred Does Not Render
A Custodial Arrest Reasonable Under
The Fourth Amendment. ..............00:cccccceeceeeeeeeeees 34
B. Giving Effect To The Legislature’s
Judgment That An Offense Is
Nonarrestable Is Consistent With
Constitutional Law And Federalism
EES CEI a ee 38
1. Petitioner’s Argument That Fourth
Amendment Jurisprudence Precludes
Accounting For State Legislative
Judgments Gains Petitioner Nothing
And In Any Event Is Directly Contrary
To This Court’s Decisions.................::c0ccc00000ee 38
2. The Authority Cited By Petitioner And
The United States Is Distinguishable
Or Supports The Judgment Below................ 45
C. Petitioner’s Theory For Permitting
Arrests That Are Forbidden Under State
Law Will Undermine The
Administrability Of The Criminal Lawes. ......... 50
ETN: EERE R TENS oe TT aT EON OE ee 55
iv
TABLE OF AUTHORITIES
CASES
Adams v. Williams, 407 U.S. 143 (1972).........cccccceceeeeeees 19
Agnello v. United States, 269 U.S. 20 (1925) ......0...00... 31
Anderson v. Creighton, 483 U.S. 635 (1987) .........0....00 53
Anderson v. Haas, 341 F.2d 497 (3d Cir. 1968).............. 40
Atwater v. City of Lago Vista, 532 U.S. 31
EES eee aie nee “aah ae passim
Bd. of Pardons v. Allen, 482 U.S. 369 (1987).............00.. 30
Berkemer v. McCarty, 468 U.S. 420 (1984)................ 12, 13
Bovie v. Indiana, 760 N.E.2d 1195 (Ind. Ct. App.
a ealtigs 39
Brinegar v. United States, 338 U.S. 160 (1949).............. 53
Brown v. Texas, 443 U.S. 47 (1979) ............ al ll
Cady v. Dombrowski, 413 U.S. 433 (1973) ..0......cc cece. 30
California v. Greenwood, 486 U.S. 35 (1988).............00.. 46
Camara v. Municipal Court, 387 U.S. 523 (1967) ......... 30
Chimel v. California, 395 U.S. 752 (1969)................. 13, 14
City of Indianapolis v. Edmond, 531 U.S. 32
RE ROARS dw ne Oe Se cm 43, 52
Colorado v. Hamilton, 666 P.2d 152 (Colo. 1983).......... 40
Coolidge v. New Hampshire, 403 U.S. 443 (1972)8, 19, 48
Cooper v. California, 386 U.S. 58 (1967).............. 30, 47, 48
County of Riverside v. McLaughlin, 500 U.S. 44
_ ERREENO ERE FED EE Sven awey vat rn ea ae oe ee er 13,19
Delaware v. Prouse, 440 U.S. 648 (1979)............. 11, 12, 23
Devenpeck v. Alford, 543 U.S. 146 (2004)..............0.... 19, 37
Dunaway v. New York, 442 U.S. 200 (1979) ........0...00.0... 51
Entrick v. Carrington, 19 Howell’s State Trials
ARERR TERESI ot rt mietne en a eR RL 32
Florida v. Royer, 460 U.S. 491 (1983)...........ccccceeeeeeeeees 14
Gerstein v. Pugh, 420 U.S. 103 (1975)..........00.0..... 19, 53
Gordon v. Degelmann, 29 F.3d 295 (7th Cir. 1994)....... 40
v
Graham v. Connor, 490 U.S. 386 (1989) oo... ceeeceeeeee 35
Harris v. United States, 331 U.S. 145 (1947)............06 31
Heck v. Humphrey, 512 U.S. 477 (1994) ........cccceccceeeeees 32
Hedgepeth ex rel. Hedgepeth v. WMATA, 386 F.3d
SD Gy Gh Bel icicivicvateciitetiatataeenane 37
Henry v. United States, 361 U.S. 98 (1959)..................... 53
Hudson v. Michigan, 126 S. Ct. 2159 (2006)................... 54
Illinois v. Lidster, 540 U.S. 419 (2004) ..0........ccccssee00 11, 43
Illinois v. Rodriguez, 497 U.S. 177 (1990) ..........:cceeeeees 24
Johnson v. United States, 333 U.S. 10 (1948).......... passim
Knowles v. Iowa, 525 U.S. 113 (1998)... cece passim
Maine v. Jolin, 639 A.2d 1062 (Me. 1994)... 40
Malone v. County of Suffolk, 968 F.2d 1480 (2d
em. i ccsaticescsnnionnnnsiaticntitsiiinibchdieitiiagisl tiie eee 40
Mapp v. Ohio, 367 U.S. 643 (1961)..........cccceccecceeeseseeeeeees 10
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)............. 30
Maryland v. Buie, 494 U.S. B26...........cccccccccccssessscccsseseoee 44
Maryland v. Pringle, 540 U.S. 366 (20038) ...........0......000 37
Maryland v. Wilson, 519 U.S. 408 (1997) .............c eee 11
Massachusetts v7 Lyons, 492 N.E.2d 1142 (Mass.
GTI cssinsessninincssssuiinctaistndapteiiniameaaaiinmeiiimeaesaneas ans 39, 40
Michigan Dep't of State Police v. Sitz, 496 U.S.
OG Go eessicsivcintarasésnvierereciinnsentaisatabameinmaai ae 30
Michigan v. DeFillippo, 443 U.S. 31 (1979)............. passim
Michigan v. Hamilton, 638 N.W.2d 92 (Mich.
eel xicnsncsiassiitionisiionmsdaeacsiaeiiniiatansiaiemieim iia aaieae 39, 40
Michigan v. Long, 463 U.S. 1032 (1983) ............c cece 42
Miller v. United States, 357 U.S. 301 (1958)..........0.00.... 54
New Hampshire v. Smith, 908 A.2d 786 (N.H.
SIND ccsrvsidciantoiiiisitidaieniesniaiuiiadaiisiaaiaeaies aaah 40
New York v. Chiagles, 237 N.Y. 193 (1923)...............004 32
New York v. DeFore, 150 N.E. 585 (N.Y. 1926).............. 32
Ohio v. Droste, 697 N.E.2d 620 (Ohio 1998).................... 40
Payton v. New York, 445 U.S. 573 (1980)........ 9, 32, 35, 36
Preston v. United States, 376 U.S. 364 (1964) ......0000.... 31
vi
Rompilla v. Beard, 545 U.S. 374 (2005)...............ccccceees 44
Sanchez-Llamas v. Oregon, 126 S. Ct. 2669
EEE SLL TO 54
Sibron v. New York, 392 U.S. 40 (1968) ..0.......0c.ccccceee 24
South Dakota v. Opperman, 428 U.S. 364 (1976).......... 30
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)......... 54
Tennessee v. Garner, 471 U.S. 1 (1985)... 35, 44
Terry v. Ohio, 392 U.S. 1 (1968).............0cccceeeees 12, 14, 44
Turner Broad. Sys. Inc. v. FCC, 520 U.S. 180
EEE SEES AAR 18
United States v. Bell, 54 F.3d 502 (8th Cir. 1995)......... 4]
United States v. Coles, 437 F.3d 361 (3d Cir.
EEE ESS ES TTA 33
United States v. Di Re, 332 U.S. 581 (1948)........0000000. 31
United States v. Gould, 364 F.3d 578 (5th Cir.
EEE ELT 33
United States v. Lewis, 183 F.3d 791 (8th Cir
EEL AS EEE TE AOI ae 4]
United States v. Martinez-Fuerte, 428 U.S. 543
EES IEEE TT ST 30
United States v. Mota, 982 F.2d 1384 (9th Cir.
I consuuuentes 41
United States v. Pratt, 355 F.3d 1119 (8th Cir
EEE SEES CORE ao 41
United States v. Robinson, 414 U.S. 218 (1973)...... passim
United States v. Trigg, 878 F.2d 1037 (7th Cir.
I ssuseunonenes 40
United States v. Van Metre, 150 F.3d 339 (4th
Nee scssnoonates 40
United States v. Walker, 960 F.2d 409 (5th Cir.
EEE EEE SSSI AOE 40
United States v. Watson, 423 U.S. 411 (1976)........... 21,37
United States v. Wright, 16 F.3d 1429 (6th Cir.
vil
Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1st
Rs a i cicerasiteicnerietianecia etait lilies eaten 4)
Virginia v. Moore, 128 S. Ct. 28 (2007) ...............ccccceceeeeeees 6
Weeks v. United States, 232 U.S. 383 (1914).............0.. 31
Welsh v. Wisconsin, 466 U.S. 740 (1984) ...........0000... 19, 29
Whren v. United States, 517 U.S. 806 (1996)........... passim
Wilkinson v. Austin, 545 U.S. 209 (2005) ..............000000 30
Wolff v. McDonnell, 418 U.S. 539 (1974) ........... cece 30
Wong Sun v. United States, 371 U.S. 471 (1968)........... 31
Wyoming v. Houghton, 526 U.S. 295 (1999).............. 11, 32
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. IV .................006 iebinaminieniineania passim
STATUTES
I alate deliaddiiiauneninaneaaiaiil 21
I aici int caneieinialihietiiantinieanianaliaiabaindeliaall 53
a ceeeeenientneili 21
Code of Alexandria, Va. § 10-5-4 .........cccccccsccsecsesseeeeeesenes 26
D.C. Code § 23-581(a)(1)(B) (1981 & 1989 Supp.).......... 37
D.C. Code Ann. § 40-302(d> (1967) ..........:00cccccccecceeeseeeeeees 37
Maryland Ann. Code, Art. 27, § 594B .0000.......cccccececeeeeee 37
Texas Transportation Code § 543.001.000.000... 37
, |” EET TE 26
ee Ee BRD ccccencncscccesnssnscsnnsncnestensetnassantii 25
as irareenimiaeadinnatiansiilid 3
SN I aac perenietninltbaeanemainatidl 25
I I os cnn crcerreniantitinetnetininnennneemaieliil 25
NE TI rnin icresndetnninisniiipnieenmanientennaibiniie 25
I III ss rseriesncneiesentianniniiienmeaineaiasbiail 25
I Io nicitaseancsiinianiciemninnitinatiientiemmmenssndnaiiaal 25
pk 2,3, 14
ey Ce ID ccinnsseccncncncnieincnensesieecianninninataden 3
_ \ >) | | | SER eeL ssn seemsneen 4
A TI sein siecle aeiiidaadainiamaeial 4
vill
Virginia Code § 3.1-796.128(A)(3) .............c.cccccecseeeceeceeeeees 25
Virginia Code § 3.1-796.128(A)(7) ...........:cccccccesceseesceseeseees 25
Virginia Code § 3.1-796.68(A)(5)...............:ccccceeceseeeceeseeeees 25
TTT RN 5
TEE ARR TTD 3
_ i NEE I 26
_ | | | ny SSaneeranennee 4
TAT TE TTT 4, 26
_ Snecma D 26
Washington Rev. Code § 10.31.100 (1997) ............. 37
OTHER AUTHORITIES
I ak 4
ABA STANDARDS FOR CRIMINAL JUSTICE,
PRETRIAL RELEASE (3d ed. 2007)..............ccccccceeeeeeees 44, 45
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE
ERLE TESTES I TR ae ee 4
AMERICAN LAW INSTITUTE, MODEL CODE OF PRE-
ARRAIGNMENT PROCEDURE (1975)..............ccc0ccceceesceeeeeees 16
AMERICAN LAW INSTITUTE, MODEL PENAL CODE
AND COMMENTARIES (1985) ............ccccccccccscesesseeeseeseeeeeesees 25
BLACKSTONE, W., COMMENTARIES ON THE LAWS OF
ETS Eee ae eae rere 22, 25
Frankfurter, Felix & Thomas G. Corcoran, Petty
Federal Offenses and the Constitutional
Guaranty of Trial by Jury, 39 HARV L. REV. 917
NEES SHEENA RES aan tastes Men Levr na arene eNO 22
GOEBEL, J. & NAUGHTON, T., LAW ENFORCEMENT
IN COLONIAL NEW YORK (1944)...........ccccccccccceccessessesseeeees 22
INTERSTATE COMMISSION ON CRIME, UNIFORM
RARER AR Ce Ae 16
NATIONAL ADVISORY COMMISSION ON CRIMINAL
JUSTICE STANDARDS AND GOALS, CORRECTIONS
STE IE eee en ee ate eerie ae er ae oe 17
1X
NATIONAL CONFERENCE OF COMMISSIONERS ON
UNIFORM STATE LAWS, UNIFORM RULES OF
CRIMINAL PROCEDURE (1974) .......ccccccccccccceseseeeeees
NATIONAL INSTITUTE OF LAW ENFORCEMENT AND
CRIMINAL JUSTICE, COST ANALYSIS OF
CORRECTIONAL STANDARDS: ALTERNATIVES TO
SRS SRE OEE ome Pe
PALEY, W., THE LAW AND PRACTICE OF SUMMARY
CONVICTIONS (V. B. Bateson ed., 9th ed. 1926)
WALCK, RICHARD E. ET AL., COMPARATIVE
ANALYSIS OF AMERICAN BAR ASSOCIATION
STANDARDS FOR CRIMINAL JUSTICE WITH
VIRGINIA LAWS, RULES, AND LEGAL PRACTICE
EE ENE NAS 8 oot oOo
WHITCOMB, DEBRA ET AL., CITATION RELEASE
RRR RESON ee SO ETRY wena ters re Pere
No. 06-1082
IN THE
Supreme Court of the United States
COMMONWEALTH OF VIRGINIA,
Petitioner,
Vv.
DAVID LEE MOORE,
Respondent.
On Writ Of Certiorari
To The Supreme Court Of Virginia
BRIEF FOR THE RESPONDENT
OPINIONS BELOW
The decision of the Supreme Court of Virginia
(Pet. App. 1-11) is published at 636 S.E.2d 395 (Va.
2006). The en banc decision of the Court of Appeals of
Virginia (Pet. App. 12-34) is published at 622 S.E.2d
253 (Va. App. 2006) (en banc). The panel decision of
the Court of Appeals of Virginia (Pet. App. 35-56) is
published at 609 S.E.2d 74 (Va. App. 20085). .
JURISDICTION
The decision of the Supreme Court of Virginia was
issued on November 3, 2006. This Court has
2
jurisdiction under 28 U.S.C. § 1257(a).
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
The Fourth Amendment to the United States
Constitution 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. |
Section 19.2-74 of the Virginia Code 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 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
3
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
1. Virginia law defines four classes of
misdemeanor offenses. Va. Code § 18.2-11. For such
offenses, the State has generally forbidden arrest. If an
individual commits one of these offenses, officers may
issue the individual a ticket, referred to under state law
as a “summons.” Id. § 19.2-74, 46.2-388. They may
“detain{]” the individual in order to “take [his] name
and address * * * and issue [the] summons.” Id. § 19.2-
74(A)(1). But, as long as the officer does not believe the
individual poses a danger or will fail to comply with the
summons, “[u]pon the giving by such person of his
4
written promise to appear at such time and place, the
officer shall forthwith release him from custody.” Id.}
Virginia enacted its citation arrest statute to
conform to standards promulgated by the American
Bar Association that called for states to subject minor
offenses only to citation, not arrest. See AMERICAN BAR
ASSOCIATION, CRIMINAL JUSTICE STANDARD 2.2 (1968).
The Virginia Supreme Court sponsored, and the State
financed, a study to evaluate the ABA’s
recommendations. The study recognized that, with the
exception of provisions relating to traffic offenses, there
was at that time “no other authority in Virginia
authorizing a police officer to release a person charged
with other offenses by the issuance of a summons or
citation.” RICHARD E. WALCK ET AL., COMPARATIVE
! The Attorney General has explained that, with respect to
misdemeanors, the “citation release” statute supersedes the more
general authority to arrest for an offense committed in the officer’s
presence. See 1991 Va. A.G. 127 (discussing Va. Code § 19.2-81);
see also Va. Code § 46.2-936 (recognizing force of local court
orders); id. § 46.2-936 (if an officer detains an individual for a
motor vehicle offense “punishable as a misdemeanor,” the officer
shall “take the name and address of such person and the license
number of his motor vehicle and issue a summons”; “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.”); id. § 46.2-937 (“For purposes of arrest, traffic
infractions shall be treated as misdemeanors. Except as otherwise
provided by this title, the authority and duties of arresting officers
shall be the same for traffic infractions as for misdemeanors.”); id.
§ 19.2-76.2 (providing for the service by mail of a summons “for a
violation of a county, city or town parking ordinance” or “for a
violation of a county, city or town trash ordinance punishable as a
misdemeanor’; even if the individual does not appear on the date
specified by the summons, no arrest is permitted “of a person
summoned by mailing’).
5
ANALYSIS OF AMERICAN BAR ASSOCIATION STANDARDS
FOR CRIMINAL JUSTICE WITH VIRGINIA LAWS, RULES, AND
LEGAL PRACTICE II-3 (undated). The Virginia
Legislature adopted the study’s recommendation that
“[c]onsideration should be given to making [the use of a
summons] mandatory for minor offenses.” Jd. at II-4.
2. On February 20, 2003, two city po” xe detectives
detained respondent David Lee Moore for driving with
a suspended license, which is a Class 1 misdemeanor
under Virginia law. Va. Code § 46.2-301(C).
Notwithstanding the fact that Virginia law generally
forbids officers from arresting motorists for this
conduct, the detectives who stopped respondent decided —
to make a full custodial arrest rather than write him a
ticket. The officers later conceded that they had no
reason to make an arrest rather than issue the
summons required by law, and the State did not
attempt to establish that the officers had made an
innocent mistake. Rather, when asked why they did
not issue a summons, one of the detectives answered
that it was “[jJust our prerogative, we chose to effect an
arrest.” Pet. App. 2 n.2.
The two detectives. illegally handcuffed
respondent, placed him in a police vehicle, and took
him not to a police station but to his hotel room. There,
they conducted a full search of respondent’s person and
found crack cocaine in his pocket. Jd. at. 2, 14-15.
The State charged respondent with possession
with intent to distribute cocaine. The trial court denied
respondent’s motion to suppress the fruits of the search
under the Fourth Amendment. Jd. at 37. In a bench
trial, respondent was convicted and sentenced to five
years imprisonment. Jd. On respondent’s appeal, a
panel of the Court of Appeals of Virginia reversed (id.
6
at 42-44) but the ful! court reinstated the conviction by
a divided vote (id. at 13, 27).
The Supreme Court of Virginia, in_ turn,
unanimously held that the officers’ conduct violated the
Fourth Amendment. The court rejected petitioner's
assertion that the search of respondent’s person was
constitutional because it was conducted incident to an
arrest supported by probable cause. Id. at 6-7. That
argument, the court explained, rested on the incorrect
premise that the Fourth Amendment permits a
warrantless search of an individual whenever an officer :
chooses to arrest him, even if state law forbids the
officer from conducting an arrest for that particular
offense. Id. at 7. The court explained that the Fourth
Amendment generally prohibits warrantless searches,
subject to limited exceptions that include “a search
incident to arrest exception * * * which allows a full
field-type search of the person incident to a lawful
custodial arrest.” Jd. at 5. The court stressed,
however, that this exception does not extend to every
case in which officers have probable cause to believe
that an individual has violated the law. To the
contrary, this Court’s decision in Knowles v. Iowa, 525
U.S. 113 (1998), established “that the Fourth
Amendment forbids expansion of the search incident to
arrest exception to include a search incident to
citation.” Pet. App. 6.
3. This Court subsequently qrentes certiorari.
128 S. Ct. 28 (2007).
SUMMARY OF ARGUMENT
This Court has squarely held that an arrest for a
state law offense and attendant search are
unconstitutional when forbidden by state law. The
7
Fourth Amendment permits a search incident only to a
“lawful arrest.” E.g., United States v. Robinson, 414
U.S. 218, 224 (1973). In Johnson v. United States, this
Court applied that rule in holding that an arrest in
violation of Washington law also violated the Fourth
Amendment because “[s]tate law determines the
validity of arrests without warrant.” 333 U.S. 10, 15
n.5 (1948). The Court subsequently sustained the
arrest in Michigan v. DeFillippo only because it
comported with Michigan arrest law, reasoning that
“[w]hether an officer is authorized to make an arrest
ordinarily depends, in the first instance, on state law.”
443 U.S. 31, 36 (1979).
Those precedents reflect the principle that the
Fourth Amendment’s prohibition on “unreasonable”
searches and seizures requires balancing the individual
and governmental interests implicated by the police
practice in question. Under that well-settled standard,
petitioner loses. Officers here arrested respondent for a
misdemeanor offense that is nonarrestable. The arrest
and subsequent search were significant intrusions on
respondent’s liberty and privacy that were subject to
the protections of the Fourth Amendment. On the
other side of the balance, however, Virginia’s
prohibition on arrest embodies the _ State’s
determination that taking an individual into custody
for such conduct does not further any governmental
interest. To the contrary, the arrest squanders scarce
police resources and is wholly unnecessary to ensure
that the subject is held to account for the offense. The
arrest was accordingly unreasonable.
The role of state law in this case is thus not to
deem an otherwise constitutional arrest violative of the
Fourth Amendment. Virginia’s arrest law does not
8
trump the United States Constitution. Rather, to
conduct a seizure or search under the Fourth
Amendment, the government must have a good reason.
Here it has none. The assessment of governmental
interests in the Fourth Amendment balancing inquiry
properly accounts for the legislature’s determination
that this intrusion on individual liberty is in fact
contrary to the government’s own interests. Because
Virginia has, through its legislature, expressly
disavowed any assertion that it has an interest in
taking an individual into custody for this offense, the
arrest is necessarily unreasonable.
An example illustrates the point. Assume
hypothetically that, during the traffic stop of
respondent, the officers had seen crack cocaine in plain
view. Consistent with the Fourth Amendment, they
then could have seized the drugs and placed respondent
under arrest because drug offenses are arrestable.
Coolidge v. New Hampshire, 403 U.S. 443, 465-66
(1971). Virginia’s prohibition on misdemeanor arrests
would be irrelevant in that circumstance. In this case,
by contrast, petitioner defends the arrest only on the
ground that Virginia makes it a crime to drive with a
suspended license. But because that conduct is
nonarrestable under Virginia law, no _ justification
exists under the Fourth Amendment that made it
“reasonable” to take respondent into custody.
The statutes relevant to the Fourth Amendment
reasonableness determination are thus the narrow but
critical group of provisions that determine whether
conduct is arrestable vel non. Petitioner cites a variety
of other restrictions on the process of conducting an
arrest, such as rules regarding whether officers must
be in uniform and whether arresting officers must be
9
within their own jurisdictions. But the Solicitor
General correctly acknowledges that provisions such as
those were “enacted for reasons other than the
protection of Fourth Amendment interests” (Br. 6), and
this .Court has held that such “trivialities” do not
implicate the Fourth Amendment reasonableness
determination. Whren v. United States, 517 U.S. 806,
815 (1996). By contrast, the fundamental legislative
judgment that conduct is nonarrestable because an
arrest furthers no governmental interest is centrally
relevant to the determination of constitutional
reasonableness.
Petitioner asserts that legislative determinations
— and state legislative determinations in particular —
are irrelevant under the Fourth Amendment. Johnson
and DeFillippo hold precisely the contrary. Petitioner’s
argument also cannot be reconciled with many other
cases. Nore does it make sense: an arrest for a state
law offense plainly violates the Fourth Amendment if
the State actually defines that conduct as legal. In that
scenario, the arrest is unreasonable because it is
unjustified. The same is true here — there is no
justification for the seizure and incident search of
respondent.
Petitioner’s remaining argument is that it is
sufficient that officers had “probable cause” to believe
that respondent had committed an offense under state
law. But this Court has repeatedly rejected the
argument that probable cause is a license to conduct
any “search” or “seizure” that officers please. E.g.,
Knowles v. Iowa, 525 U.S. 113 (1998) (probable cause
does not justify search of individual’s person); Payton v.
New York, 445 U.S. 573 (1980) (probable cause does not
justify entry into the home to conduct arrest). Under
10
the bedrock Fourth Amendment balancing inquiry, the
police practice in question must be tailored to further
the asserted governmental interest — here, enforcing
the prohibition on driving with a suspended license.
Probable cause to believe respondent had committed
that offense did justify the initial traffic stop because
officers were entitled to issue him a ticket. But the
further arrest and incident search violated the Fourth
Amendment because they did not further any
legitimate governmental purpose.
The judgment should accordingly be affirmed.
ARGUMENT
The Fourth Amendment, made applicable to the
States through the Fourteenth Amendment (see Mapp
v. Ohio, 367 U.S. 643, 655 (1961)) 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.
U.S. CONST. amend. IV. In this case, officers
subjected respondent to a prototypical “seizure” and
“search,” which accordingly can be sustained as
constitutional only if “reasonable.” The Virginia
Supreme Court’s unanimous holding that the officers’
conduct was unreasonable under the Fourth
Amendment because they arrested respondent for a
state law offense that the State classifies as
nonarrestable comports with this Court’s precedents.
No state interest justifies arresting someone for
11
conduct that the state already has already determined
does not justify imposing on a person’s liberty and
privacy in that manner.
I. An Arrest For An Offense That State Law
Deems Nonarrestable Is Unreasonable
Because It Furthers No Substantial
Governmental Interest.
A. An Arrest And Search Constitute
Significant Intrusions On Individual
Liberty That Are “Reasonable” Under
The Fourth Amendment Only If
Justified By A Significant
Governmental Interest.
As the text of the Fourth Amendment specifies,
the “touchstone” of constitutionality is “the
reasonableness in all the circumstances” of the law
enforcement practice at issue. Maryland v. Wilson, 519
U.S. 408, 411 (1997) (citations omitted). The
reasonableness inquiry balances “on the one hand, the
degree to which {a seizure] intrudes upon an
individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate
governmental interests.” Wyoming v. Houghton, 526
U.S. 295, 300 (1999) (internal citations omitted); see,
e*, Delaware v. Prouse, 440 U.S. 648, 654 (1979).
More specifically, “in judging reasonableness,” this
Court looks to “the gravity of the public concerns served
by the seizure, the degree to which the seizure
advances the public interest, and the severity of the
interference with individual liberty.” Jilinois v. Lidster,
540 U.S. 419, 426-27 (2004) (quoting Brown v. Texas,
443 U.S. 47, 51 (1979)).
12
Take traffic stops as an example. “[S]topping an
automobile and detaining its occupants constitute a
‘seizure’ within the meaning of [the Fourth]
Amendment{].” Prouse, 440 U.S. at 653. But when
officers “have probable cause to believe that a traffic
violation has occurred,” a traffic stop is “reasonable”;
the officers’ obvious interest in stopping the individual
in order to issue a ticket outweighs the imposition that
results from the brief seizure. Whren v. United States,
517 U.S. 806, 810 (1996).
The officers in this case had probable cause to
believe that respondent had committed a misdemeanor
-*fense. It was therefore reasonable for them to stop
18 vehicle and issue him a ticket. If respondent had
then been ticketed and allowed to go on his way, no
Fourth Amendment problem would have arisen.
But the officers instead placed respondent in
custody. An arrest “is a wholly different kind of
intrusion upon individual freedom” from a_ limited
traffic stop (Terry v. Ohio, 392 U.S. 1, 26 (1968)
(emphasis added)):
- “(Djetention of a motorist pursuant to a traffic
stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few
minutes.” Berkemer v. McCarty, 468 U.S. 420, 437
(1984); see also Prouse, 440 U.S. at 653 (“the purpose of
the stop is limited and the resulting detention quite
brief’). By contrast, during a custodial arrest, the
subject is placed completely within the government’s
control for a significant period of time, potentially
indefinitely.
* A traffic stop does not authorize a search of
the individual or his vehicle. Knowles v. Jowa, 525 U.S.
13
113 (1998). By contrast, as this case well illustrates, an
arrest is almost invariably combined with another
intrusion on the individual’s privacy in the form of a
search incident to arrest of his person and
surroundings. See United States v. Robinson, 414 U.S.
218, 224 (1973) (person); Chimel v. California, 395 U.S.
752, 763 (1969) (surroundings).
- “(Cjircumstances associated with the typical
traffic stop are not such that the motorist feels
completely at the mercy of police,” in part because a
stop “is public, at least to some degree.” Berkemer, 468
U.S. at 438. By contrast, in a custodial arrest, the
individual, already in handcuffs, will often be placed in
the rear of a police car and transported to a jail. He
may be cut off from all contact with his family and
friends, with the exception of a single telephone call. A
judicial officer might not review the decision to detain
the individual for as long as two days. See County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
- Finally, “questioning incident to an ordinary
traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in
which the detainee often is aware that questioning will
continue until he provides his interrogators the
answers they seek.” Berkemer, 468 U.S. at 437-38.
When, as in this case, the severity of an intrusion
on liberty or privacy escalates beyond a mere brief stop
to a full arrest, the balancing required by the Fourth
Amendment “reasonableness” inquiry necessarily
requires an equivalently enhanced governmental
interest to justify that significant intrusion on
individual! liberty and privacy. It is not enough that
the initial stop was justified. This Court has firmly
rejected the proposition that “simply because some
14
interference with an individual’s privacy and freedom
of movement has lawfully taken place, further
intrusions should automatically be allowed.” Chimel,
395 U.S. at 767 n.12. The constitutionality of a seizure
instead depends on whether the particular police
practice in question — here, the arrest — is tailored to
the asserted governmental interest. “The scope of [a]
detention must be carefully tailored to its underlying
justification” (Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion) (emphasis added)), and an intrusion
that “is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable
intensity and scope” (Terry, 392 U.S. at 18).
B. A_ Legislative Determination That
Conduct Is Not: Arrestable Embodies A
Definitive Judgment That The
Government’s’ Interests Are Not
Furthered By Custodial Detention.
1. In this case, the question under the Fourth
Amendment “reasonableness” inquiry is whether an
objective justification for the arrest existed. The
justification cited by petitioner is the fact that
respondent was driving with a suspended license in
violation of Virginia law. As noted, under this Court’s
precedents, that offense rendered the initial stop of
respondent reasonable so that the officer could issue
the required citation.
The Virginia Legislature has provided, however,
that a misdemeanor offender may only be ticketed and
then must be allowed to go on his way. Va. Code §
19.2-74. Virginia’s prohibition on arrest specifically
embodies a determination that, for misdemeanor
offenses, the individual’s significant interest in
remaining free from custodial detention generally is not
15
outweighed by the government’s interest in arrest. The
United States Department of Justice commissioned a
study by the American Bar Association which examined
this balancing of interests. See NATIONAL INSTITUTE OF
LAW ENFORCEMENT AND CRIMINAL JUSTICE, COST
ANALYSIS OF CORRECTIONAL STANDARDS: ALTERNATIVES
TO ARREST (1975). The Report concluded that “use of
citation and summons in lieu of arrest is critical” for
minor offenses because it “assur[es] the liberty of an
accused prior to his or her first court appearance,” and
accordingly “is a far less drastic means of guaranteeing
that appearance than are traditional arrest and
detention.” Jd. at 3. The Report proposed that
“individual jurisdictions” would identify “eligible
offenses” for which “citations would substitute for much
of the traditional field arrest activity.” Id. “From this
perspective, citation release may be viewed as a logical
extension of the basic constitutional precept of
‘innocent until found guilty.” DEBRA WHITCOMB ET AL.,
CITATION RELEASE 20 (Washington, D.C., National
Institute of Justice, 1984). A strict rule requiring
issuance of a ticket rather than an arrest furthers other
significant governmental interests as well. As another
U.S. Department of Justice Report on the practice
recognizes, Virginia’s approach of requiring citation
release for certain offenses “offers the greatest potential
for benefits both to the defendant and the criminal
justice system: Patrol officers are removed from service
for only a brief period of time, typically thirty minutes
or less; no transportation costs are incurred; [and]
defendants are subject to the least amount of
disruption.” Jd. at vii.
Of course, where the crime is sufficiently serious,
the governmental interest in detention and public
safety outweighs those costs. “[N]o state mandates
16
citation for any felony.” Jd. at 24 (emphasis in
original). But many States have determined, within -
their expert judgment, that jaywalkers are different
from murderers and that, for minor crimes, immediate
custody is not required and does not serve any
governmental interest in protecting community safety,
deterring crime, or efficiently prosecuting criminal
activity. There is “a trend toward mandatory use of
field citations for all misdemeanor offenses (except if
certain conditions are present).” Jd. at 3 (footnote
omitted). “As of 1981, all but nine states had adopted
statutes or rules of criminal procedure which authorize
the use of citation release for certain criminal offenses.”
Id. at 3. The practice is not a novelty but instead “an
outgrowth of procedures for responding to traffic law
violations.” Jd. at 1.
The judgments underlying these _ statutory
enactments parallel those reached by the most
respected organizations in the field. Citation release
has been “endorsed by a number of national police and
criminal justice standard setting organizations.” Id. at
2. “The procedure has gained the unanimous support
of several national commissions and standard setting
groups.” Jd. at 8 (emphasis added). Three sets of
uniform laws have endorsed the use of citation release.
See INTERSTATE COMMISSION ON CRIME, UNIFORM
ARREST ACT (1941); AMERICAN LAW INSTITUTE, MODEL
CODE OF PRE-ARRAIGNMENT PROCEDURE § 120.2 (1975);
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM
STATE LAWS, UNIFORM RULES OF CRIMINAL PROCEDURE,
Rules 211, 221 (1974). The formative 1974 Corrections
Report by the National Advisory Commission on
Criminal Standards and Goals of the U.S. Department
of —§Justice’s Law Enforcement Assistance
Administration similarly recommended that “[e]ach
17
criminal justice jurisdiction, state or local as
appropriate, should immediately develop a_ policy,”
providing for “[e]numeration of minor offenses for
which a police officer should be required to issue a
citation in lieu of making an arrest or detaining the
accused,” absent specified exceptional circumstances.
NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE
STANDARDS AND GOALS, CORRECTIONS std. 4.3 (1973).
2. The Fourth Amendment properly accounts for
these legislative determinations that an arrest does not
further governmental interests. In the case of a state
law offense, the function of the Fourth Amendment is
not to divine governmental purposes that the
government itself denies, but to take the State’s
asserted interests as it finds them and balance them
under a federal constitutional standard against the
individual’s interests in privacy and liberty. Because
the justification for placing respondent in custody for
driving with a suspended license is lacking — and
petitioner points to no other — the arrest of respondent
was unconstitutional.
The Fourth Amendment, as incorporated through
the Fourteenth Amendment, thus constrains the
authority of governmental officials to conduct searches
and seizures; it does not create such authority in the
first instance. Under the Constitution’s scheme of
separated federal and state powers, the States are the
primary architects of criminal law and law enforcement
procedures. When a law duly enacted by the
legislature and signed into law by the executive
formally and expressly withholds the authority to
arrest for an offense — thereby specifically disavowing
any important governmental interest in depriving
individuals of their liberty for the offense — nothing in
18
the Fourth Amendment displaces or trumps that
judgment. States are well aware of the cost that an
arrest inflicts not only on individual liberty, but also on
the time and resources of law enforcement officials,
who must divert themselves from other policing efforts
to perform the time-consuming process of transporting,
booking, and otherwise processing an arrestee. Cf.
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195
(1997) (noting that Congress “is far better equipped
than the judiciary to amass and evaluate the vast
amounts of data bearing upon legislative questions”)
(internal quotation marks omitted).
For state officers pursuing state offenses, the
authority to make arrests and to undertake searches is
granted by state law. The elected branches of state
government determine whether and when a sufficient
governmental interest exists to invest state officers
with the authority to effect arrests and searches. By
the same token, state law can define when arrests or
searches cannot be made by these officers. The positive
authority of state police officers to exercise law
enforcement authority thus is purely a product of state
law. The Fourth Amendment no more supplements an
officer’s authority to arrest than it could create such
policing authority in the first instance. Indeed,
petitioner accepts (Br. 16-17) that the Fourth
Amendment forbids an arrest for conduct that is lawful
and does not implicate officers’ community caretaking
function. In the absence of criminality or an
alternatively compelling justification (such as
dangerousness to self or others), such an arrest is
necessarily “unreasonable” because it lacks any
reasonable justification. :
19
In this respect, respondent’s rule would continue
the Fourth Amendment’s long tradition of respect for
and consideration of state judgments by permitting
state legislatures to experiment with differential arrest
schemes based on the resources, needs, and concerns of
their individual jurisdictions. This Court’s Fourth
Amendment precedents are appropriately deferential to
the judgments of the States, “recogniz[ing] . the
desirability of flexibility and experimentation.”
Gerstein v. Pugh, 420 U.S. 103, 123 (1975); see also
County of Riverside v. McLaughlin, 500 U.S. 44 (1991)
(acknowledging the importance of allowing jurisdictions
to be flexible in developing their criminal procedures);
Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (giving
weight to the state law determination of “the gravity of
the underlying offense for which the arrest is being
made”).
Of course, the required justifications for an arrest
are not static or provided only by state law. For
example, even when state law forbids an arrest for the
particular conduct for which an officer subjectively
makes a stop, a different ground for the arrest may
exist. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004)
(the “subjective reason for making the arrest need not
be the criminal offense as to which the known facts
provide probable cause”). In addition, during the initial
stop, new justifications for a search or a more intrusive
seizure may arise. Evidence seen in “plain view”
during the stop may justify charging the driver with a
federal or state crime (see Coolidge v. New Hampshire,
403 U.S. 443, 465-66 (1971)), and the law defining that
newly identified criminal activity — e.g., a drug offense
— may itself authorize an arrest. See, e.g., Adams uv.
Williams, 407 U.S. 143, 148 (1972) (only after the
arresting officer found a gun during a Terry stop and
20
frisk did “probable cause exist[{] to arrest Williams for
unlawful possession of the weapon”). The critical point
remains, however, that the reasonableness inquiry
requires a justification for placing an individual into
custodial detention and subjecting him to a search, and
when the only asserted justification is the offense
underlying the initial stop (as in this case), the arrest is
unreasonable if the legislature has forbidden it.
3. The conclusion that the Fourth Amendment
reasonableness inquiry respects. state legislative
judgments also follows from the practice at the time of
the Constitution’s framing. This Court recounted that
history in Atwater v. City of Lago Vista, 532 U.S. 318
(2001), concluding that it was a significant guide to the
determination whether an arrest is “reasonable.” 7d. at
326-27. Atwater specifically considered the
constitutionality of a warrantless arrest, authorized by
state law, for a nonviolent misdemeanor (driving
without a seatbelt). This Court rejected the argument
that the common law categorically “forbade peace
officers to arrest without a warrant for misdemeanors
not amounting to or involving breach of the peace.” Id.
at 340.
Critically, Atwater reasoned that, at the time of
the framing, the reasonableness of an arrest instead
depended on /egislative determination, both in England
and in the colonies. Most relevant here, this Court in
Atwater relied heavily on the fact that, in the era of the
founding, legislatures had conferred authority to arrest
for such offenses. Jd. at 328 (“[I]n the years leading up
to American independence, Parliament repeatedly
extended express warrantless arrest authority to cover
misdemeanor-level offenses not amounting to or
involving any violent breach of the peace.”); id. at 337
21
(“colonial and state legislatures, like Parliament before
them * * * regularly authorized local peace officers to
make warrantless misdemeanor arrests without
conditioning statutory authority on breach of the
peace”); id. at 342 (citing “numerous early- and mid-
19th-century decisions expressly sustaining (often
against constitutional challenge) state and local laws
authorizing peace officers to make warrantless arrests
for misdemeanors not involving any breach of the
peace”); accord Pet. Br. 1 (variation in state arrest law
has existed “[f]rom the _ ratification of our
Constitution”).2 That history squarely supports
respondent’s position that the reasonableness of an
arrest for an offense depends on the predicate of
legislative authorization.®
Noteworthy in this respect are the class of so-
called “summary convictions,” for which legislatures
forbade arrest outright. See W. PALEY, THE LAW AND
2 Congress, in turn, did not authorize arrest for all offenses
but instead more narrowly granted federal law enforcement
officers “the same powers in executing the laws of the United
States, as sheriffs and their deputies in the several states have by
law, in executing the laws of their respective states.” Act of May 2,
1792, c. 28, § 9, 1 Stat. 265. See generally United States v. Watson,
423 U.S. 411, 420 (1976). Congress subsequently supplemented
that statutory authority by granting federal officers uniform
authority to arrest for any felony, and misdemeanors committed in
their presence. 18 U.S.C. § 3053.
3 In this case, petitioner makes essentially the reverse of the
claim considered in Atwater — it argues that the Fourth
Amendment permits every warrantless misdemeanor arrest,
notwithstanding that Virginia forbids an arrest for driving with a
suspended license. Br. 12-13. As discussed in the text, that
assertion cannot be reconciled with Atwater’s recitation of the
common-law-era history.
22
PRACTICE OF SUMMARY CONVICTIONS 228 (V. B. Bateson
ed., 9th ed. 1926) (1814) (“for misdemeanors arising
under penal statutes, and not connected with any
breach of the peace, a justice has no authority, as
necessarily incident to the cognizance of the offence, to
apprehend the accused in the first instance, or even
after a summons and default, but could only summon
him to attend, and in default of his appearance proceed
ex parte.”). Parhiament created the summary
conviction offenses and also established the procedure
for prosecuting offenders. Felix Frankfurter & Thomas
G. Corcoran, Petty Federal Offenses and _ the
Constitutional Guaranty of Trial by Jury, 39 HARV L.
REV. 917, 926 (1926). Colonial governments in the
United States used such statutes as well. See J.
GOEBEL & T. NAUGHTON, LAW ENFORCEMENT IN
COLONIAL NEW YORK 415-19 (1944).4
4. Rather than acknowledging the above points,
petitioner argues (Br. 23) that States should determine
the appropriate remedies for violations of their own
laws. So they should, and nothing in the Virginia
Supreme Court’s decision precludes the use of tort law
or police disciplinary proceedings to respond to abuses
of the arrest power. The question in this case is not
whether States may sanction their own employees, but
whether official state determinations that use of the
arrest power is unnecessary and unwarranted bear on
4 While the number of prosecutions by summary conviction 1s
unknown, it was likely significant, as Blackstone devoted an entire
chapter of the fourth volume of his Commentaries on the Laws of
England to discussing summary convictions, and complained
about the backlog of work that they created for magistrates. 4 W.
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 277, 279
(1769).
23
the . Fourth Amendment’s “constitutional
reasonableness” inquiry. Giving effect and force to
such state legislative judgments does not encroach on
state remedial powers. Quite the opposite, a rule of
federal constitutional law that state legislative
judgments can be ignored — and thus that renegade
police officers can reward their own misconduct — will
make it harder for States to rein in, regulate, and
punish the actions of their own officers.
C. Holding That Arrests For
Nonarrestable Offenses Nonetheless
Are Constitutional Would Contradict
The Purpose Of The Fourth
Amendment To Prevent Unwarranted
And Unjustified Intrusions On
Individual Liberty And Privacy.
The significant consequences of overriding these
legislative judgments by deeming all infractions
arrestable are _ palpable. This Court’s Fourth
Amendment precedents establish that the best way to
ensure that an arrest is not a pretext for an
unconstitutional search is to require that the arrest
rest on an objective basis. See, e.g., Whren v. United
States, 517 U.S. 806, 813 (1996). A categorical
prohibition on arrest, such as the one Virginia has
adopted, establishes that there is no objective basis for
such a seizure. The statute thereby effectuates an
“essential purpose” of the Fourth Amendment’s
proscriptions — “to impose a_ standard of
‘reasonableness’ upon the exercise of discretion” by law
enforcement “in order to safeguard the privacy and
security of individuals against arbitrary invasions.”
Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)
24
(footnote and some internal quotation marks omitted);
see Illinois v. Rodriguez, 497 U.S. 177, 186 n.* (1990).
The record in this case illustrates the potential for
abuse of the search power under petitioner’s contrary
rule. After arresting respondent, the officers did not
take him to a police station for booking. Instead, forty-
five minutes after the arrest, they drove to respondent’s
hotel room and searched him and the premises. Pet.
App. 2, 36. When asked why they did not release
respondent with a summons as required by state law,
an officer asserted that it was “[j]ust our prerogative”
and that “we were also conducting a _ narcotics
investigation.” J.A. 15. Indeed, the officer’s only
justification for the arrest was that “narcotics were
eventually recovered.” Jd. But “[ijt is axiomatic that
an incident search may not precede an arrest and serve
as part of its justification.” Sibron v. New York, 392
U.S. 40, 63 (1968).
The Virginia Supreme Court correctly perceived
that a contrary holding that police may arrest in
contravention of state law would render this Court’s
unanimous decision in Knowles v. Jowa a dead letter for
Fourth Amendment purposes. Knowles held that
officers may not search an individual on the basis of a
citation. 525 U.S. 113, 114 (1998). On petitioner’s
view, officers can easily evade Knowles because they
wll have a categorical right under the Constitution to
conduct a custodial arrest in every case in which they
may issue a citation, no matter how trivial the offense,
and notwithstanding the absence of any lawful
authority to do so.
If petitioner’s position is accepted, opportunities
for custodial arrest will be almost limitless. Virginia
has defined many forms of conduct as nominal but
25
nonarrestable misdemeanors, from moral offenses
(public spitting (Va. Code § 18.2-322) and public
cursing (§ 18.2-388)) to minor offenses involving
animals (failing to provide “companion animals” with
“faldequate exercise” (§ 3.1-796.68(A)(5)); violating a
local dog leash ordinance (§ 3.1-796.128(A)(3)); and
harboring an unlicensed cat (§ 3.1-796.128(A)(7))), to
the truly esoteric (buying a milk crate belonging to a
third party without consent (§ 18.2-102.2(1)); opening
and leaving open another person’s gate (§ 18.2-143);
and scaring poultry with a spotlight (§ 18.2-509)).
Indeed, petitioner's position that the Fourth
Amendment permits an arrest for any crime (Br. 16-17)
knows no outer bound. Beyond the minor offenses just
noted, there is no principled basis under petitioner’s
theory to differentiate numerous common regulatory
offenses — such as parking violations — as nonarrestable
under the Fourth Amendment. The common law
re_ognized public wrongs enforceable by the criminal
law and private civil wrongs enforceable through civil
actions. See 3 W. BLACKSTONE, COMMENTARIES ON THE
LAWS OF ENGLAND 2 (1769). Modern law, however,
recognizes a third class of illegality -— known as
“infractions,” “violations,” or “petty offenses” (see
AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND
COMMENTARIES § 1.04 cmt. (1985)) — that is effectively
quasi-criminal. Virginia, for example, does not
distinguish between non-criminal infractions and minor
misdemeanors for arrest purposes. “Traffic infractions
are violations of public order * * * and not deemed to be
criminal in nature.” Va. Code §18.2-8. But “[flor
purposes of arrest, traffic infractions shall be treated as
misdemeanors. * * * [T]he authority and duties of
arresting officers shall be the same for traffic
26
infractions as for misdemeanors.” Id. § 46.2-937
(emphases added).
The State has also authorized local governmental
entities to enact their own regulatory schemes. For
example, “[t]he governing bodies of counties, cities, and
towns may enact ordinances requiring pedestrians to
obey signs and signals erected on highways therein for
the direction and control of traffic, [and] to obey the
orders of law-enforcement officers engaged in directing
traffic on such highways.” Id. § 46.2-935; see, e.g., Code
of Alexandria, Va. § 10-5-4 (“[p]edestrians shall obey
signs and signals erected on the streets” under penalty
of fine “not more than five dollars”). These offenses
may carry “penalties not exceeding those of a traffic
infraction.” Va. Code § 46.2-935; see also id. § 46.2-941
(“violation of an ordinance of any county, city, or town
regulating parking” is subject to a summons if the
violator does not pay the parking fine); id. § 15.2-901
(violation of local trash ordinance may be punishable as
misdemeanor). If the Virginia Supreme Court’s
decision is reversed, all of these local offenses will
presumably permit an arrest under the Fourth
Amendment, notwithstanding the express legislative
judgment that they should carry no consequence
beyond that associated with a misdemeanor.®
5 To be sure, this Court held in Atwater that the Fourth
Amendment permitted a warrantless arrest for a nonviolent
misdemeanor that was authorized by state law. 532 U.S. at 323.
Petitioner’s position would dramatically expand the sweep of the
Fourth Amendment arrest authority to the many offenses for
which arrest is forbidden. Before trivial and anachronistic
misdemeanor offenses that are committed by almost every
American — for example, minor speeding infractions — trigger the
27
D. This Court’s Precedents Establish That
An Arrest And Search Violate The
Fourth Amendment If Prohibited By
State Law.
Petitioner's argument not only misconceives the
purpose and role of legislative judgments under the
Fourth Amendment, but also is directly contrary to this
Court’s precedents, which have required that arrests
for state law offenses be permissible under state law as
a precondition to their constitutional reasonableness
under the Fourth Amendment.
In Johnson v. United States, 333 U.S. 10 (1948),
police officers in Washington State entered a hotel
room after smelling opium, arrested the occupant, and
then found drugs in a search of the premises. Id. at 12.
This Court first held that the initial entry violated the
Fourth Amendment because the intrusion into the
private living space required a warrant (id. at 15) and
was non-consensual (id. at 13). With respect to the
argument that the search should nonetheless be upheld
as “valid because incident to an arrest” (id. at 15), the
Court explained that the “determin{ation] whether the
arrest itself was lawful” (id.), would turn on the
governing “Washington law” (id. at 15 n.5). More
specifically, the Court held that “[s]tate law determines
the validity of arrests without warrant.” Jd. Because
the warrantless arrest was not permitted as a matter of
Washington law (id. at 15-16), this Court held that the
evidence must be suppressed under the Fourth
Amendment. Jd.
power to arrest and search, legislatures must make that judgment,
for which they can be held accountable by the electorate.
28
The Court again held that the Fourth Amendment
permits the seizure of evidence incident to an arrest
only if the arrest itself was authorized by state law in
Michigan v. DeFillippo, 443 U.S. 31 (1979). In that
case, officers used their state law arrest power to take
the defendant into custody for violating a local criminal
ordinance requiring any person to identify himself at
the request of police. The officers found drugs in a
search incident to the arrest. The defendant
successfully argued in the lower courts that the
identification ordinance was unconstitutional. Jd. at
34-35. This Court nevertheless held that the evidence
was not seized in violation of the Fourth Amendment,
reasoning that the arrest was independently
constitutional because it was authorized by state law.
Id. at 37, 40. The Court stressed that “[t]he fact of a
lawful arrest, standing aloue, authorizes a search” (id.
at 35) and, following Johnson, held that “[w]hether an
officer is authorized to make an arrest ordinarily
depends, in the first instance, on state law” (id. at 36
(citing Johnson, supra)). Because it was uncontested
that the arrest of the defendant was “authorized by
Michigan law” through its general arrest statute (id.),
and because the officer “had abundant probable cause
to believe that respondent’s conduct violated the terms
of the ordinance,” the Court held that the arrest and
attendant search did not violate the Fourth |
Amendment:
Once respondent refused to identify himself
as the presumptively valid ordinance
required, the officer had probable cause to
believe respondent was committing an offense
in his presence, and Michigan’s general arrest
statute, Mich. Comp. Laws. § 764.15 (1970),
authorized the arrest of respondent,
29
independent of the ordinance. The search
which followed was valid because it was
incidental to that arrest. The ordinance 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. The subsequently
determined invalidity of the Detroit
ordinance on vagueness grounds does not
undermine the validity of the arrest made for
violation of that ordinance, and the evidence
discovered in the search of respondent should
not have been’suppressed.
Id. at 39-40.
Johnson and DeFillippo are consistent with this
Court’s broader Fourth Amendment jurisprudence,
which confirms that the requirement of a state law
predicate to arrest for state offenses is deeply ingrained
into the determination of “reasonableness.” For
example, the Court held in Welsh v. Wisconsin, 466
U.S. 740 (1984), that police may enter a home on the
basis of exigent circumstances only if state law deems
the offense sufficiently serious. The Court reasoned,
“The State of Wisconsin has chosen to classify the first
offense for driving while intoxicated as a noncriminal,
civil forfeiture offense for which no imprisonment is
possible. * * * Given this expression of the State’s
interest, a warrantless home arrest cannot be upheld
simply because” evidence of the offense might otherwise
dissipate. Jd. at 754 (emphasis added).
Still other decisions of this Court look to state law
as a means of ensuring that police do not act arbitrarily
in conducting searches and seizures that do not rest on
probable cause. In cases involving inventory searches,
30
traffic checkpoints, and administrative warrants, the
Court’s Fourth Amendment analysis has relied on
external legal rules such as state law to ensure
evenhandedness by the police. See South Dakota uv.
Opperman, 428 U.S. 364, 375-76 (1976) (inventory
searches); Cady v. Dombrowski, 413 U.S. 433, 447
(1973) (same); Cooper v. California, 386 U.S. 58, 60-61
(1967) (same); Michigan Dep't of State Police v. Sitz,
496 U.S. 444, 453-55 (1990) (traffic checkpoint); United
States v. Martinez-Fuerte, 428 U.S. 543, 558-562 (1976)
(same); Camara v. Municipal Court, 387 U.S. 523, 538
(1967) (administrative warrant for housing
* inspections); Marshall v. Barlow’s, Inc., 436 U.S. 307,
320-21 (1978) (administrative warrant for business
inspections). As the Solicitor General concedes, in such
cases, “the Court has looked to the existence of state
policies in determining that the actions are reasonable
under the Fourth Amendment.” Br. 12 n.3 (emphasis
added). As discussed above, giving Fourth Amendment
effect to the State’s judgment that arrests are not
necessary similarly promotes the evenhanded
administration of the law. ® |
6 Respondent’s position no more constitutionalizes state law
than do the decisions of this Court considering governmental
purposes advanced by the State in balancing tests required by
other constitutional provisions. Giving effect under the Fourth
and Fourteenth Amendments to the State’s legislative judgment
that arrests are an unwarranted and unnecessary intrusion on
individual liberty parallels this Court’s repeated decisions holding
that state laws can create liberty interests protected by the
Fourteenth Amendment’s Due Process Clause — which is the
source of respondent’s Fourth Amendment protections against
state officers. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221-22
(2005); Bd. of Pardons v. Allen, 482 U.S. 369, 370, 381 (1987);
Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974).
31
E. The Search Incident To Arrest Was In
Any Event Unconstitutional Because It
Was Contrary To Law.
The foregoing establishes that respondent’s arrest
violated the Fourth Amendment. It follows that the
incident search of his person was tainted by that
illegality and hence unconstitutional. See Wong Sun v.
United States, 371 U.S. 471, 487-88 (1963). It is
therefore not necessary to decide whether the fact that
the arrest violated state law independently renders the
search unconstitutional without regard to the arrest.
But to the extent the Court elects to reach the question,
the search itself violated the Fourth Amendment.
The search incident to arrest doctrine is a special
exception to this Court’s general requirement that a
warrant accompany a search. Robinson, 414 U.S. at
224. This Court has never held that the doctrine
permits a search regardless of the officer’s legal
authority to effect the underlying arrest. To the
contrary, in Robinson, this Court took care to state nine
times that its holding applied only to searches incident
to a “lawful” arrest. E.g., id. at 224 (“It is well settled
that a search incident to a lawful arrest is a traditional
exception to the warrant requirement of the Fourth
Amendment.”) (emphasis added).? This Court’s
decisions in Johnson and DeFillippo, supra, make clear
7 This careful language reflects the long-established
constitutional understanding of the search incident to arrest
exception. See, e.g., Preston v. United States, 376 U.S. 364, 367
(1964); United States v. Di Re, 332 U.S. 581, 587 (1948); Harris v.
United States, 331 U.S. 145, 150 (1947); Agnello v. United States,
269 U.S. 20, 30 (1925); Weeks v. United States, 232 U.S. 383, 392
(1914).
32
that by “lawful” arrests, the Robinson Court was
referring to authorized arrests, and not merely to
arrests supported by probable cause to believe that an
offense had occurred.8
Limiting the search incident to arrest exception to
cases of authorized arrests is also consistent with the
common law tradition that gave rise both to the
exception and to its limitation to “lawful arrests.” See
Wyoming v. Houghton, 526 U.S. 295, 299 (1999). The
common law did not permit searches incident to arrests
for offenses not subject to arrest under local law. In an
opinion relied upon by this Court in Robinson, 414 U.S.
at 232, then-Judge Cardozo explained this “basic
principle” as follows: “Search of a person is unlawful
when the seizure of the body is a trespass, and the
purpose of the search is to discover grounds yet
unknown for arrest or accusation.” New York uv.
Chiagles, 237 N.Y. 193, 197 (1923) (citing Entrick v.
Carrington, 19 Howell’s State Trials 1030). At common
law, an officer’s unauthorized or unjustified arrest of a
citizen constituted a trespass (see Payton v. New York,
445 U.S. 573, 592 (1980)), rendering any subsequent
search unlawful as well. See New York v. DeFore, 150
N.E. 585, 586 (N.Y. 1926) (holding that “[ijhe search
was unreasonable in the light of common law
traditions” because the underlying arrest was not
8 Both Johnson and DeFillippo separately considered and
found critical to their Fourth Amendment holdings the question
whether the arrest was “lawful” under state law. Johnson, 333
U.S. at 15; DeFillippo, 443 U.S. at 35. “Lawful arrest,” moreover,
is a term of art regularly used to incorporate both state and federal
requirements that might give rise to a claim for wrongful arrest.
Heck v. Humphrey, 512 U.S. 477, 486 n.6 (1994).
33
authorized by state law, and thus “[t]here was no
lawful arrest to which the search could be an incident”).
Finally, invalidating the incident search in this
case is consistent with the _ principle’ that
“manufactured exigencies” do not justify intrusions
under the Fourth Amendment. Although this Court
has not confronted the question, the courts of appeals
have recognized that, although exigent circumstances
may justify an arrest or search, they “do not meet
Fourth Amendment standards if the government
deliberately creates [them].” United States v. Coles,
437 F.3d 361, 366 (3d Cir. 2006) (citing cases). An
officer's subjective intent to avoid the warrant
requirement by creating exigencies is sufficient to
invoke this rule, but it is not necessary; even in the
absence of bad faith, exigent circumstances cannot
justify a search if they were created by “tactics or
procedures” that were “unreasonable or contrary to
standard or good law enforcement practices (or to the
policies or practices of their jurisdictions).” United
States v. Gould, 364 F.3d 578, 591 (5th Cir. 2004). This
prohibition on manufactured exigencies sensibly denies
officers the power to circumvent the Fourth
Amendment by creating circumstances that might
justify a warrantless search. When, as here, the
underlying arrest violated state law, an officer should
not be permitted to rely upon that arrest to justify an
incident search, any more than the officer can rely on
equally unreasonable conduct to establish exigent
circumstances in other contexts.
34
II. Petitioner’s Arguments For Reversal Lack
Merit.
A. Mere Probable Cause To Believe An
Offense Has Occurred Does Not Render
A Custodial Arrest Reasonable Under
The Fourth Amendment.
The crux of petitioner’s argument for reversal is
that “probable cause” categorically justifies any arrest,
no matter whether it furthers any governmental
interest. Petitioner’s position is in essence that the
“probable cause” standard supplants the balancing
inquiry set forth in this Court’s Fourth Amendment
jurisprudence. Br. 14-17. But this Court has never so
held. Nor does that argument make logical sense.
“Probable cause” does not supplant the prohibition on
“unreasonable” searches and __ seizures. The
Constitution presents those dual requirements in the
disjunctive: The protection against “unreasonable
searches and seizures” is distinct from the requirement
that “no Warrants shall issue but upon probable cause.”
U.S. CONST. amend. IV. Petitioner fails to offer any
reasoned explanation — indeed, anything beyond ipse
dixit — for the view that it is “reasonable” to arrest any
individual for any trivial offense, even when the
legislature has concretely determined that the arrest
not only would be an excessive intrusion on individual
liberty and privacy, but also would be directly contrary
to the government’s own interests as it unnecessarily
squanders scarce police resources. Put another way,
“probable cause” to believe an offense has occurred is
not the same thing as “probable cause” to arrest. The
latter exists only if there is a sufficient governmental
interest to justify the intrusion of custodial detention.
35
At bottom, petitioner’s position that an arrest
requires only “probable cause” amounts to the
proposition that the arrest is_ constitutional
notwithstanding that it is -— under the Fourth
Amendment balancing inquiry — “unreasonable.” This
is a case in which the government candidly does not
contest that the balancing of individual and
governmental interests overwhelmingly favors the
individual. But the bedrock principle that the Fourth
Amendment permits only “reasonable” seizures — such
that an arrest requires a_ substantially greater
justification than a mere traffic stop — demonstrates
that petitioner errs in asserting that “probable cause”
categorically justifies an arrest under the Fourth
Amendment.
It is in fact settled that “probable cause” to believe
that an offense has occurred justifies only certain
intrusions upon liberty and not others. Thus, the Court
held in Tennessee v. Garner, 471 U.S. 1 (1985), that .
officers with probable cause to arrest ordinarily may
not use deadly force to effectuate that arrest. Garner
establishes that “the ‘reasonableness’ of a particular
seizure depends not only on when it is made” — i.e.,
upon probable cause to believe an offense has occurred
— “but also on how it is carried out.” Graham v.
Connor, 490 U.S. 386, 395 (1989) (emphases in
original). Likewise, probable cause to arrest for an
offense does not justify the further intrusion of an entry
into the home. Payton v. New York, 445 U.S. 573, 587-
89 (1980). |
Petitioner contends (Br. 10-13, 44) that a probable
cause standard is sufficient because it limits the
prospect that arrests will be arbitrary, such that the
arrest in this case does not implicate the same concerns
36
as the “general warrants” that were a_ principal
motivation for the adoption of the Fourth Amendment.
In support of this proposition, petitioner (Br. 12) quotes
this Court’s statement in Payton, 445 U.S. at 583, that
“indiscriminate searches and seizures under the
authority of ‘general warrants’ were the immediate
evils that motivated the framing and adoption of the
Fourth Amendment.”
As noted above, the Virginia statute in fact does
reduce the prospect of arbitrary detentions by
constraining officers’ discretion in conducting arrests.
But in any event, the Fourth Amendment is concerned
with privacy and liberty more broadly, not merely with
arbitrary detention. Petitioner thus tellingly omits
Payton’s conclusion only a few lines later that it is
“perfectly clear that the evil the Amendment was
designed to prevent was broader than the abuse of a
general warrant.” Id. at 585 (emphasis added). Indeed,
this Court unanimously rejected an indistinguishable
argument in Knowles v. Iowa, 525 U.S. 113 (1998). The
stop in that case was based on probable cause, and
hence the individual was not “arbitrarily” subjected to
an intrusion on his liberty. Yet this Court held that
officers could not search him without further
justification. Jd. at 118-19.
Petitioner relies on language in this Court’s
opinions indicating that an officer may arrest if he has
probable cause to believe the suspect has committed an
offense. Br. 14 & n.6,17. But in every case petitioner
quotes, the legislature had authorized an arrest for the
offense in question. Thus, in Atwater, the Court noted
at the outset of its opinion that “Texas law expressly
authorizes ‘[a]ny peace officer [to] arrest without
warrant a person found committing a violation’ of th[e]
37
seatbelt laws [at issue].” 532 U.S. at 323 (quoting Tex.
Transp. Code Ann. § 543.001 (1999)). Underscoring the
point, the Court appended to its decision a list of
statutes that render misdemeanor offenses arrestable.
Id. at 355-60; accord Hedgepeth ex rel. Hedgepeth v.
WMATA, 386 F.3d 1148, 1157 (D.C. Cir. 2004) (arrest
for eating on train indistinguishable from arrest
sustained in Atwater because “[a]s in this case, there
was no dispute [in Atwater] that the plaintiff had
violated the statute in the presence of the arresting
officer and that state law authorized her arrest”); Pet.
Br. 31 (“Given the background of state law in Atwater,
the issue presented by [this case] was not present.”).9
Further, none of the cases cited by petitioner
considered the question presented here, even in dictum.
It is in fact uncontested that the excerpts petitioner
quotes were not intended to be taken as absolute
statements of the full scope of the Fourth Amendment’s
requirements, regardless of context. The Solicitor
General, for example, acknowledges that those excerpts
do not describe the rule for arrests inside the home. Br.
7-8. The quoted statements also omit any requirement
that a misdemeanor offense be committed in the
% See also Devenpeck v. Alford, 543 U.S. 146 (2004) (arrest
authorized by Wash. Rev. Code § 10.31.100 (1997)); Maryland v.
Pringle, 540 U.S. 366, 370 (2003) (noting arrest authority under
Md. Ann. Code, Art. 27, § 594B (1996) (repealed 2001)); Whren v.
United States, 517 U.S. 806 (1996) (arrest authorized by D.C. Code
§ 23-581(a)(1)(B) (1981 & 1989 Supp.)); Michigan v. DeFillippo,
443 U.S. 31, 33 n.1 (1979) (city ordinance made failure to identify
oneself to an officer arrestable offense); United States v. Robinson,
414 U.S. 218 (1973) (D.C. Code Ann. § 40-302(d) (1967) authorized
arrest); United States v. Watson, 423 U.S. 411, 415-17 (1976)
(federal law authorized warrantless arrest for postal service
violations).
38
officer’s presence, yet Atwater uv. City of Lago Vista
expressly left open whether the Fourth Amendment
imposes such a requirement. 532 U.S. 318, 340 n.11
(2001). The Court has also said just as often that only
a “legal” arrest authorizes an arrest and incident
search. See Part I.E, supra.
When one reviews this Court’s actual holdings, as
opposed to snippets of language in inapposite cases,
this Court’s decisions uniformly support respondent.
None of the cases cited by petitioner states — much less
holds — that state legislative determinations are
irrelevant to the determination of an _ arrest’s
reasonableness. When the Court considered that issue
in both Johnson and DeFillippo, it squarely rejected
petitioner’s position. See Part 1.D, supra.
B. Giving Effect To The Legislature’s
Judgment That An _ Offense Is
Nonarrestable Is Consistent With
Constitutional Law And Federalism
Principles.
1. Petitioner’s Argument That Fourth
Amendment Jurisprudence
Precludes Accounting For State
Legislative Judgments Gains
Petitioner Nothing And In Any
Event Is Directly Contrary To This
Court’s Decisions.
a. Incorporating into the Fourth Amendment’s
reasonableness inquiry the legislative judgment that no
governmental interest would be advanced by an arrest
would not, as petitioner contends (Br. 8, 9, 39),
constitutionalize every violation of state law. Rather,
the Virginia Supreme Court’s holding stands for the
39
much more modest proposition that, when courts apply
the Fourth Amendment’s balancing of governmental
and private interests affected by a seizure, they will
consider and respect the State’s official articulation of
that governmental interest. See Part I, supra.
Petitioner's argument that respecting the
legislative judgment that arrest is unnecessary would
require the federalization of other procedural
constraints on police authority (Br. 39-44) is wrong.
The restrictions on the arrest authority that petitioner
cites have nothing to do with the Fourth Amendment’s
long-established weighing of the public interest served
by a custodial arrest, and would have no logical role in
assessing the “constitutional reasonableness” of an
arrest. Those measures do not inform the question
whether officers have probable cause to arrest, as this
Court has held that such “trivialities” are not relevant
to the Fourth Amendment reasonableness inquiry.
Whren v. United States, 517 U.S. 806, 815 (1996) See,
e.g., Bovie v. Indiana, 760 N.E.2d 1195, 1199 (Ind. Ct.
App. 2002) (purpose of requirement that arresting
officer be in uniform is “to protect drivers from police
impersonators and to protect officers from resistance
should they not be _ recognized as_ officers’);
Massachusetts v. Lyons, 492 N.E.2d 1142, 1145 (Mass.
1986) (defendant’s right to have an opportunity to
respond to a misdemeanor charge before process is
issued “was designed to encourage informal resolution
of private disputes and minor criminal matters”);
Michigan v.. Hamilton, 638 N.W.2d 92, 98 (Mich. 2002)
(purpose of territorial limits on arrest powers is “to
protect the rights and autonomy of local governments
in the area of law enforcement”) (internal quotation
omitted); accord S.G. Br. 6 (restrictions of that sort
40
were “enacted for reasons other than the protection of
Fourth Amendment interests”), 23.
Likewise, petitioner’s list of cases (Br. 36-37 nn.26-
28) involving compliance with such procedural and
technical restrictions on the arrest authority do not
speak to the government’s foundational interest
deeming conduct arrestestable, which is what concerns
the Fourth Amendment. If anything, state laws and
rules regulating how an arrest should be made
underscore that there is a distinct public interest in
making an arrest that the Fourth Amendment can
weigh in its reasonableness calculus. Such laws
confirm that arrest is expected and necessary; they do
not disavow any need for custodial detention, as
Virginia has done here.!°
10 Some of petitioner’s cases involve particular state law
warrant requirements. United States v. Van Metre, 150 F.3d 339
(4th Cir. 1998); United States v. Walker, 960 F.2d 409 (5th Cir.
1992). Others involve jurisdictional limits on the particular
officer's arrest authority. New Hampshire v. Smith, 908 A.2d 786
(N.H. 2006); Michigan v. Hamilton, 638 N.W.2d 92; Maine v. Jolin,
639 A.2d 1062 (Me. 1994); Colorado v. Hamilton, 666 P.2d 152
(Colo. 1983). Several involve peculiar procedural requirements.
Gordon v. Degelmann, 29 F.3d 295 (7th Cir. 1994) (failure to
provide a hearing to defendant before removing him as a
trespasser); United States v. Wright, 16 F.3d 1429 (6th Cir. 1994)
(failure to meet state’s heightened standard of suspicion for arrest
based upon information of an informant); Ohio v. Droste, 697
N.E.2d 620 (Ohio 1998) (type of officer authorized to arrest);
Lyons, 492 N.E.2d 1142 (failure to provide defendant notice to
challenge misdemeanor complaint). A number involve no violation
of state law at all. Malone v. County of Suffolk, 968 F.2d 1480 (2d
Cir. 1992); United States v. Trigg, 878 F.2d 1037 (7th Cir. 1989);
Anderson v. Haas, 341 F.2d 497 (3d Cir. 1965). The only possible
exception involves decisions holding that the Fourth Amendment
is not violated by arrests that are contrary to state law, when that
41
The better-reasoned lower court authority agrees
that the Fourth Amendment forbids placing an
individual in custody for a nonarrestable offense. See
United States v. Mota, 982 F.2d 1384, 1389 (9th Cir.
1993) (“Given the state’s expression of disinterest in
allowing warrantless arrests for mere infractions, we
conclude that a custodial] arrest for such an infraction is
unreasonable, and thus unlawful, under the Fourth
Amendment.”). The Eighth Circuit is the only federal
appellate court to reach the opposite conclusion, but
judges of that court have harshly criticized that
decision. Compare United States v. Bell, 54 F.3d 502
(8th Cir. 1995), with United States v. Lewis, 183 F.3d
791, 794-95 (8th Cir. 1999) (Heaney, J., concurring), id.
at 796 (Goldberg, J., concurring), and United States v.
Pratt, 355 F.3d 1119, 1123 n.3 (8th Cir. 2003) (panel
questioning the correctness of Bell, especially “in hght
of the [Supreme] Court’s dependence on state law in
Atwater’).
b. Petitioner nonetheless makes a_ broadside
objection to any consideration of legislative judgments —
and state legislative judgments, in particular — in the
Fourth Amendment reasonableness determination.
That argument is deeply flawed from the outset,
because it cannot gain petitioner anything. There must
be some means for determining whether an arrest is
reasonable. Petitioner assumes that, if the legislative
determination to authorize an arrest is not the correct
state law permits arrests only for misdemeanors that occur in the
officer's presence. See, e.g., Vargas-Badillo v. Diaz-Torres, 114
F.3d 3 (1st Cir. 1997). As noted in Part II.A, supra, this Court has
not yet resolved the predicate question whether the Fourth
Amendment itself incorporates a common law _ presence
requirement, and jn any event that question is not presented here.
42
measure of the government’s interest, then the
appropriate course would be to hold that the Fourth
Amendment categorically authorizes every arrest for
any offense, however trivial and whatever the
circumstances. But such a rule would fly in the face of
the reasonableness requirement itself, as it would
eschew any assessment of whether the substantial
intrusion on liberty and privacy that results from an
arrest and search furthers a significant governmental
interest.
To be sure, there are a few instances in which this
Court has held that no case-by-case inquiry into the
particular circumstances surrounding a search are
required, instead adopting an “automatic” or “bright
line” rule under which one Fourth Amendment
intrusion authorizes another. Principally, an arrest per
se authorizes an incident search. See United States v.
Robinson, 414 U.S. 218, 235 (1973). But as this Court
explained in refusing to extend that rule to other
intrusions, the search incident to arrest power is
“automatic” (Michigan v. Long, 463 U.S. 1032, 1049
n.14 (1983)), only because every arrest distinctly
furthers one or both of the government’s interests in
the search — officer safety and securing evidence of the
crime. See Knowles v. lowa, 525 U.S. 113, 117-18
(1998) (Fourth Amendment forbids search incident to
citation); Long, 463 U.S. at 1032 (Fourth Amendment
forbids search incident to Terry stop).
Critically, petitioner does not even attempt to
identify a governmental] interest that justifies an
equivalently “automatic” rule that the Fourth
Amendment always permits an arrest upon probable
cause, whatever the offense. Nor do any of petitioner's
amici, including the Solicitor General. That silence is
43
telling, and its reason is obvious. There is no basis in
experience, logic, or the law to say that any legitimate
interest is served by a categorical rule that officers may
arrest for minor transgressions. It cannot be presumed
that the police have a need to take an individual into
custody, search him and his car, take him in handcuffs
to a police station, book him, and hold him for two days
without review by a neutral magistrate for failing to
use his turn signal, driving with a suspended license, or
committing any of the innumerable other offenses that
legislatures routinely make subject to a fine while
mandating that only a ticket may be issued for such an
infraction.!!
Hence, if petitioner were right that state
legislative judgments are irrelevant, the logical rule
would instead be that the reasonableness of the arrest
would depend on the specific circumstances of each
case. The Court has adopted just such a context-
specific assessment in a _ variety of analogous
11 Under the Fourth Amendment reasonableness inquiry, it
is not enough that the Constitution recognizes the government's
generalized interest in combating crime. Rather, the particular
intrusion must be “appropriately tailored” to “advance[] this grave
public concern to a significant degree.” Illinois v. Lidster, 540 U.S.
419, 427 (2004). For example, in City of Indianapolis v. Edmond,
this Court acknowledged the “severe and intractable nature of the
drug problem” served by the narcotics checkpoints operated by the
City of Indianapolis. 531 U.S. 32, 42 (2000). The Court
nevertheless invalidated the checkpoint program because the
means chosen to advance that important public purpose was not
reasonably tailored to align the governmental purpose with the
intrusion on liberty. As this Court explained, “the gravity of the
threat alone cannot be dispositive of questions concerning what
means law enforcement officers may employ to pursue a given
purpose.” Jd. (emphasis added).
44
circumstances. Among many examples, officers
conducting a permissible Terry stop may go further and
conduct a patdown search only if chey have a
reasonable suspicion that the individual is armed.
Terry v. Ohio, 392 US. 1, 10 (1968). Officers
conducting an arrest in a home pursuant to a warrant
may conduct a further protective sweep of the premises
only if they have reasonable suspicion that “the area to
be swept harbors an individual posing a danger to those
on the arrest scene.” Maryland v. Buie, 494 U.S. 325,
334 (1990). And the force that officers may use in
conducting an arrest depends on their assessment of
the likelihood of a suspect’s escape and probable cause
to believe that the suspect presents a danger of “death
or serious physical injury to the officer or others.”
Tennessee v. Garner, 471 U.S. 1, 1 (1985).
In this case, the appropriate context-sper ‘fic rule
would be that officers may conduct.an arrest for a
minor offense if they possess a reasonable belief that
custodial detention is required. After extensive
consultation, the American Bar Association has
promulgated a Standard that identifies the
circumstances in which the government has a genuine
reason to take an individual into custody. AMERICAN
BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE,
PRETRIAL RELEASE std. 10-2.2 (3d ed. 2007). The
Standards preclude an arrest for a minor offense unless
the individual represents a continuing threat or is
unlikely to answer the summons. Id. 10-2.2(c). This
Court has “long referred to the{] ABA Standards as
‘guides to determining what is reasonable.” Rompilla
v. Beard, 545 U.S. 374, 387 (2005) (original brackets
and citations omitted). Virginia’s arrest statute is itself
modeled on the relevant ABA Standard, under which
the arrest in this case lacked justification and
45
accordingly violated the Fourth Amendment. See
generally supra at 3-6.}2
But in any event, for the reasons discussed in the
next section, such a contextual federal standard is
unnecessary because there is no merit to petitioner’s
claim that this Courts Fourth Amendment
jurisprudence. precludes accounting for legislative
judgments such as Virginia’s determination that an
arrest for misdemeanor offenses generally does not
further governmental interests.
2. The Authority Cited By Petitioner
And The United States Is
Distinguishable Or Supports The
Judgment Below.
As discussed above, this Court held in Johnson
and DeFillippo that the constitutionality of an arrest
for a state law offense turns on compliance with state
law. A long line of other cases looks to state legislative
determinations in assessing whether searches and
seizures are reasonable. See Part I.D, supra. The
authority on which petitioner relies does not in fact
support its position.
12 The ABA maintains that governments should “requir[e]
police officers to issue citations (rather than to arrest the offender)
for minor offenses, except in” specified circumstances, because
“pretrial custody by police is generally unwarranted for minor
offenses.” PRETRIAL RELEASE, supra, at 67 (commentary). With
respect to the question presented by this case, the ABA concludes
that although “the Fourth Amendment permits searches incident
to arrests that do not result in the detention of the arrested person
in a police or correctional facility, once a citation is issued the
police officer has no authority to search unless a basis other than
incident to arrest is apparent (e.g., plain view).” Jd. at 70 n.31.
46
a. Petitioner argues that California v. Greenwood,
486 U.S. 35 (1988), holds categorically “that the
constitutional standard must operate independently of
state law.” Br. 18. That of course cannot be right: as
noted, petitioner concedes — as it must — that state law
plays a central role in the Fourth Amendment inquiry
in a variety of contexts, including in defining the
offense. Greenwood in fact stands for a more modest
proposition and is properly distinguished.
The question in Greenwood was whether officers
conducted a Fourth Amendment “search” when they
examined garbage that the defendant had left outside
the curtilage of his home. This Court’s precedents
provide that such a “search” occurs when the
government intrudes on an expectation of privacy that
society accepts as reasonable. This Court concluded in
Greenwood that the defendant had no such expectation
in his garbage, particularly given that the trash was
effectively open to the public. The defendant (a
California resident) nonetheless relied on the California
Supreme Court’s holding that such a search requires a
warrant under that state’s constitution (which imports
its own distinct privacy standard). This Court deemed
that fact irrelevant because it does not inform the
relevant question under the Fourth Amendment:
whether the defendant had an expectation of privacy
that society was prepared to accept as reasonable. See —
486 U.S. at 43 (rejecting defendant’s assertion that his
“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 California
law”).
47
The role of Virginia law in this case is very
different from the defendant’s attempt to rely on the
California Constitution in Greenwood. Here, the
Fourth Amendment supplies the relevant inquiry: The
arrest of respondent was a _ seizure and was
“reasonable” if it was supported by a _ sufficient
justification. Virginia law simply establishes that no
such justification exists because the State has no
interest in effecting the arrest. In Greenwood, by
contrast, state law was invoked in an attempt to
substitute a new state-law standard for the Fourth
Amendment inquiry into whether the defendant had a
reasonable expectation of privacy. That argument was
properly rejected.
b. For its part, the United States relies on two
further decisions — Cooper v. California, 386 U.S. 58
_ (1967), and Whren v. United States, 517 U.S. 806 (1996)
— as supposedly deeming state law irrelevant to the
Fourth Amendment reasonableness determination.
S.G. Br. 5; see also id. at 11-12. Again, that is not
correct, as it is clear that state law is highly relevant.
Indeed, the Solicitor General misdescribes both cases,
which in fact support the judgment below.
Cooper is an inventory search case. The police
arrested the defendant and, pursuant to a specific
directive in state law, impounded his car. 386 U.S. at
60. They then searched it, finding evidence of heroin
sales. The defendant argued that the search violated
the Fourth Amendment because state law did not
expressly “authorize the officers to search [his] car.” Jd.
at 61. In the language quoted by the Solicitor General,
this Court held that the reasonableness of the search
was not undermined by the fact that state law did not
by its terms specify that a search could be conducted:
48
“Just as a search authorized by state law may be an
unreasonable one under [the Fourth] [A]mendment, so
may a search not expressly authorized by state law be
justified as a constitutionally reasonable one.” Jd.
The Solicitor General asserts that Cooper deems
state law irrelevant. In fact, precisely the opposite is
true. The United States omits that the reason this
Court deemed the search reasonable in the absence of
express statutory authority was that state law
empowered the officers to seize and hold the vehicle for
a long period of time. It was thus essential to this
Court’s Fourth Amendment inquiry that “the officers
seized petitioner’s car because they were required to do
so by state law.” Id. at 61 (emphasis added). The
search, in turn, “was closely related to the reason
petitioner was arrested, the reason his car had been
impounded, and the reason it was being retained”: “It
would be unreasonable to hold that the police, having to
retain the car in their custody for such a length of time,
had no right, even for their own protection, to search
it.” Id. at 61-62 (emphasis added).
Cooper thus actually holds, consistent with the
inventory search rulings noted in Part I.D, supra, that
state law plays a central role in the Fourth Amendment
calculus. Compare Coolidge v. New Hampshire, 403
U.S. 443, 464 n.21 (1971) (“In Cooper, the seizure of the
petitioner's car was mandated by California statute,
and its legality was not questioned. The case stands for
the proposition that, given an unquestionably legal
seizure, there are special circumstances that may
validate a subsequent warrantless search.”) (emphasis
added), with S.G. Br. 5 (citing Cooper as “holding that
state limitations on searches and seizures do not affect
the reasonableness of the searches and seizures under
49
the Fourth Amendment”), and id. at 11 (discussing
Cooper as the lead precedent for that proposition).
The other decision cited by the Solicitor General,
Whren v. United States, is a pretext stop case. This
Court held that the Fourth Amendment permits a
traffic stop that is objectively justified by a violation of
the law, whatever the officer’s subjective intent. 517
U.S. at 813. The petitioners, however, urged the Court
to reject the “normal” inquiry “of whether probable
cause existed to justify the stop” (id. at 810), arguing
that the officer's pretext could be demonstrated
objectively by the fact that he had violated “usual police
practices” embodied in a local police policy (id. at 814).
The policy provided that a particular subgroup of
officers — those in plainclothes who are traveling in
unmarked vehicles — should generally not enforce
traffic laws. Id. at 815. In addition to broadly rejecting
any inquiry into pretext, this Court stated — in the
language quoted by the Solicitor General — that “[w]e
cannot accept that the search and seizure protections of
the Fourth Amendment are so variable and can be
made to turn upon such trivialities.” Jd. (internal
citations omitted).
As with Cooper, the’ Solicitor General
misapprehends Whren, which in fact treats state law
(in that case, the law of the District of Columbia) as
highly relevant to the Fourth Amendment inquiry. The
government. omits that the petitioners, who were
stopped after the officer observed them turning a
corner without signaling and then speeding off,
“accept[ed] that [the officer] had probable cause to
believe that various provisions of the District of
Columbia traffic code had been violated.” 517 U.S. at
810 (citing 18 D.C. Mun. Regs. §§ 2213.4, 2204.3, and
50
2200.3) (emphasis added). A violation of state law was
thus the basis for the stop in Whren because (as this
Court explained) it is settled that, “[aJs a general
matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a
traffic violation has eccurred.” Jd. The Court simply
held that the local police practice did not overcome the
settled understanding that a violation of state law
authorizes a traffic stop. Id.
In the language cited by the government regarding
“trivialities,” this Court in Whren merely held that the
right to stop the vehicle was not undercut by local
police practices. This Court recognized that such a
“basis of invalidation would not apply in jurisdictions
that had a different practice” or even in the same
jurisdiction if the officer “had been wearing a uniform
or patrolling in a marked police cruiser.” Jd. at 815.
Respondent’s rule is perfectly consistent with Whren’s
determination that incidental provisions of local law
that do not go to the government’s interest in a seizure
do not figure in the Fourth Amendment reasonableness
determination. As discussed, supra, an arrest is not
reasonable if the suspect has not committed an
arrestable offense. Other limitations on the arrest
authority — such as whether the officer was in uniform
or outside his jurisdictional boundaries — do not inform
that determination.
C. Petitioner’s Theory For Permitting
Arrests That Are Forbidden Under
State Law Will Undermine’ The
Administrability Of The Criminal Laws.
Petitioner argues (Br. 39-44) that a rule which
gives effect to state-law judgments concerning the
necessity for an arrest would be inadministrable. In
51
fact, the opposite is obviously true. As the Solicitor
General emphasizes, “{a] single, familiar standard is
essential to guide police officers.” Br. 16 (quoting
Dunaway v. New York, 442 U.S. 200, 213-14 (1979)).
The decision below aligns state law and the Fourth
Amendment on the questions of whether the conduct is
arrestable and thereby produces an administrable rule.
Officers are trained in state law and there is no
evidence that they face any difficulties in conforming
their conduct to those rules. If an officer has probable
cause to believe that an arrestable offense has occurred,
the Fourth Amendment requirement of reasonableness
is met. Compare Atwater v. City of Lago Vista, 532 U.S.
318, 418 (2003) (rejecting argument that Fourth
Amendment should forbid arrests permitted by state
law whenever offense was sufficiently minor because
such a rule would “expect every police officer to know
the details of frequently complex penalty schemes”).
Contrary to petitioner’s assertions that this approach is
not practicable, the relevant U.S. Department of
Justice report recognizes that, in fact, under citation
release statutes, “screening procedures in the field are
straightforward and uncomplicated.” DEBRA WHITCOMB
ET AL., CITATION RELEASE 11 (Washington, D.C.,
National Institute of Justice, 1984).
Petitioner’s approach, by contrast, is less easily
administered by officers on the street. By divorcing the
Fourth Amendment reasonableness inquiry from the
other rules that govern police conduct, it invites
significant confusion as officers are held to conflicting
state and federal standards as they effectuate custodial
arrests. Petitioner’s rule would also require creating a
complicated overlay of federal jurisprudence to
determine which minor regulatory offenses are
“arrestable” as a matter of federal constitutional law,
52
notwithstanding that state law permits only the
issuance of a citation.
Petitioner responds that under the Virginia
Supreme Court’s decision, arrests constitutional in one
State may violate the Fourth Amendment in another.
Br. 21. That is true but totally unexceptional, and it
poses no concern for law enforcement officers on the
street. The Fourth Amendment does not enforce
universal homogeneity in governmental law
enforcement interests and purposes. The legality of
conduct, and hence the restrictions imposed by the
Fourth Amendment on police activity, frequently varies
from state to state. Thus, police activity that is
perfectly constitutional in Virginia - such as arrests in
pursuit of gambling activity - may violate the Fourth
Amendment in Nevada. In addition, among many
other examples, under City of Indianapolis v. Edmond,
531 U.S. 32 (2000), identically conducted checkpoints
may be constitutional in the city where their primary
purpose is_ sobriety or license checks, while
unconstitutional in another city which has as its
primary purpose narcotics detection — and would
certainly be unconstitutional where the checkpoint
avowedly served no purpose at all. See id. at 46-47 &
n.2.
Petitioner also expresses concern that it is
sometimes difficult to determine whether an individual
has committed an arrestable offense. Br. 42. But the
Fourth Amendment does not require certainty; it only
requires probable cause to believe that the offense
supports arrest. A reasonable error does not violate the
Fourth Amendment. As this Court stated long ago,
“fiJn dealing with probable cause, * * * as the very
name implies, we deal with probabilities.” Brinegar uv.
53
United States, 338 U.S. 160, 175 (1949). “Probable
cause exists if the facts and circumstances known to
the officer warrant a prudent man in believing that the
offense has been committed”; “[e]vidence required to
establish guilt is not necessary.” Henry v. United
States, 361 U.S. 98, 102 (1959). “Because many
situations which confront officers in the course of
executing their duties are more or less ambiguous,
room must be allowed for some mistakes on their part.”
Gerstein v. Pugh, 420 U.S. 103, 112 (1975) (internal
quotation omitted). Additional protection is provided
by the rule that reasonable mistakes are immune from
liability under 42 U.S.C. § 1983. Anderson uv.
Creighton, 483 U.S. 635, 641 (1987).
Beyond that, to the extent that any genuine
uncertainty exists (and petitioner offers no evidence
that it does), it is by definition precisely the uncertainty
that officers face every day in their application of state
law. Here, of course, the officers made no such
mistake. At trial, they claimed that the power to arrest
was “just our prerogative.” J.A. 15. In this Court,
petitioner has abandoned any assertion that the
officers had any reason to believe — even a mistaken
one — that respondent had engaged in arrestable
conduct.
But in any event, while administrative ease may
inform this Court’s evaluation of constitutional
reasonableness, this Court has never held that
administrability can supplant the Fourth Amendment’s
reasonableness balancing inquiry altogether, which is
what petitioner’s approach advocates. Hard or not, the
Fourth Amendment forbids “unreasonable” searches
and seizures. Petitioner’s discomfort with the state
interest side of. that balance is understandable, but
54
such discomfort provides no justification for rewriting
the Fourth Amendment’s text to provide that persons
are protected against unreasonable searches and
seizures “unless it would be administratively
difficult.”!%
‘3 The only issue for this Court to decide in this case is
whether the officers’ conduct violated the Fourth Amendment.
The petition for certiorari and petitioner's merits brief did not
squarely ask this Court to hold that, even if officers violated the
Fourth Amendment, the exclusionary rule does not apply.
Further, petitioner has waived that argument by not raising it in
the Virginia Supreme Court. See Sprietsma v. Mercury Marine,
537 U.S. 51, 56 n.4 (2002). Although petitioner’s brief below
contained a section nominally addressed to the “exclusionary rule,”
that section argued only that the officers’ conduct did not violate
the Fourth Amendment; petitioner did not argue that the evidence
should not be excluded even if a Fourth Amendment violation had
occurred. See Br. for the Commonwealth, Moore v. Virginia, 636
S.E.2d 395 (Va. 2006), 2006 WL 3910658 at *7-15. In any event,
this Court hes long “required suppression of evidence that was the
product of a search incident to an unlawful arrest.” Sanchez-
Llamas v. Oregon, 126 S. Ct. 2669, 2681 (2006) (citing Miller v.
United States, 357 U.S. 301, 305 (1958)). This case falls squarely
within the settled bounds of the exclusionary rule because the
unlawful arrest and search were “sufficiently related to the later
discovery of evidence to justify suppression.” Hudson v. Michigan,
126 S. Ct. 2159, 2170 (2006) (Kennedy, J., concurring in part and
concurring in the judgment).
CONCLUSION
For the foregoing reasons, the judgment of the
Supreme Court of Virginia should be affirmed.
Pamela S. Karlan
Jeffrey L. Fisher
STANFORD LAW SCHOOL
SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
Amy Howe
Kevin K. Russell
HOWE & RUSSELL, P.C.
4607 Asbury Place, NW
Washington, D.C. 20016
December 3, 2007
Respectfully submitted,
S. Jane Chittom
Counsel of Record
Stacie A. Cass
OFFICE OF THE APPELLATE
DEFENDER
701 E. Franklin St., Ste. 1001
Richmond, VA 23219
(804) 225-3598
Thomas C. Goldstein
Steven C. Wu
AKIN GUMP STRAUSS
HAUER & FELD LLP
1333 New Hampshire Ave.,
NW
Washington, D.C. 20036
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.