Amicus Curiae Brief — Virginia v. Moore

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COMMONWEALTH OF VIRGINIA, PETITIONER

Vv.

DAVID LEE MOORE

ON WRIT OF CERTIORARI

TO TH# SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

DAVID E. HOLLAR

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Fourth Amendment requires the sup-

pression of evidence obtained in a search incident to an

arrest that is based upon probable cause but not author-

ized by state law.

(1)

TABLE OF CONTENTS

edi nddvddevsced ser eeensennite

Argument:

A search incident to an arrest based on probable cause is

reasonable under the Fourth Amendment even if the

i ic ceuees

The Fourth Amendment permits a search

incident to an arrest based on probable cause,

and state limitations on searches and seizures

do not affect the constitutional analysis ......

Constitutionalizing state restrictions would

balkanize Fourth Amendment protections and

unduly complicate constitutional analysis .....

Constitutionalizing state restrictions would

disrupt the balance of state and federal

Setee edn eeiseedsawhdetedvees

Constitutionalizing state restrictions threatens

inappropriate expansion of the exclusionary

SEE peivetncdiess seus edisédesncddetenrs

Neither this Court’s decisions nor respondent’s

attempt to define an arrestable offense by

reference to state law justifies departing from

the Fourth Amendment rule that an arrest is

reasonable if it is based on probable cause .. . .

CET ee ee ls

(ITI)

TABLE OF AUTHORITIES

Cases:

Adams v. Williams, 407 U.S. 143 (1972) ............... 10

Arkansas v. Sullivan, 532 U.S. 769 (2001) ............. 18

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

a teeny passim

Beck v. Ohio, 379 U.S. 89 (19G64) ... cece ccc ccc ccccce 10

Bovie v. State, 760 N.E. 2d 1195 (Ind. Ct. App. 2002) .... 23

California v. Greenwood, 486 U.S. 35 (1988) ... 5, 11, 19, 29

City of Minot v. Knudson, 184 N.W.2d 58(N.D. 1971) .. 15

Commonwealth v. Baez, 678 N.E.2d 1335 (Mass. App.

ibe cie se Uetet ee ere ee ia wencie dad is 14

Cooper v. California, 386 U.S. 58 (1967) .......... 5, 11, 19

Davis v. Scherer, 468 U.S. 183 (1984) ............... 12

Devenpeck v. Alford, 543 U.S. 146 (2004) .............. 13

Dunaway v. New York, 442 U.S. 200 (1979) ........ 8, 9, 16

Elkins v. United States, 364 U.S. 206 (1960) ...... 5, 11, 29

Florida v. Wells, 495 U.S. 1(1990) ..........-....005- 12

Garrett v. City of Bossier City, 792 So. 2d 24 (La. Ct.

SEED SA bb ddd seb GURAS DRDO Cee Kes TE Ke REEs 18

Gerstein v. Pugh, 420 U.S. 108 (1975) ............02006. 8

Henry v. United States, 361 U.S. 98 (1959) ............. 8

Hudson v. Michigan, 126 8. Ct. 2159

Di iineindackiddantaadnekinisks 19, 20, 21, 22, 25

Johnson v. United States, 333 U.S. 10 (1948) .... 6, 7, 27, 28

Jordan v. Shands, 500 S. E. 2d 215 (Va. 1988) ......... 19

Ker v. California, 374 U.S. 23 (1963) ............... 27, 29

Knowles v. Iowa, 525 U.S. 113 (1998) ............. 3, 6, 24

Lovelace v. Commonwealth, 500 S.E.2d 267 (Va. 1998) ... 4

Cases—Continued Page

Maryland v. Pringle, 540 U.S. 366 (2008) .............. 8

Michigan v. DeF illippo, 443 U.S. 31 (1979) ....... 7, 28, 29

Michigan v. Long, 463 U.S. 1082 (1983) ............... 13

Miller v. United States, 357 U.S. 301 (1958) ........... 27

New York v. Burger, 482 U.S. 691 (1987) .............. 12

Olmstead v. United States, 277 U.S. 438 (1928) ......... 22

On Le v. United States, 343 U.S. 747 (1952) ............ 22

Oregon v. Hass, 420 U.S. 714 (1975) ...........0 0c eee 18

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

eee I 8.0 dad endcvacsnudbeendscesseus 20, 21

Preston v. United States, 376 U.S. 364 (1964) .......... 11

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669

GE bcnvdusndcctsdenesdusensamenaascine 22, 23, 27

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ......... 20

State v. Bricker, 134 P.3d 800 (N.M. Ct. App. 2006) ..... 14

State v. Brown, 792 N.E.2d 175 (Ohio 2008) ........... 18

State v. Hamilton, 638 N.W. 2d 92 (Mich. 2002) ........ 23

State v. Lopez, 588 A.2d 318 (Me. 1991) ............... 15

State v. Pulfrey, 111 P.3d 1162 (Wash. 2005) ........... 15

State v. Valenzuela, 898 P.2d 1010 (Ariz. Ct. App.

OED 004004006000s000s800600000R004 eee 14

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) ..... 25, 26

Tharp v. Commonwealth, 270 S.E.2d 752 (Va. 1980) .... 19

United States v. Caceres, 440 U.S. 741 (1979) ....... 20, 22

United States v. Di Re, 332 U.S. 581 (1948) ....... 6, 25, 27

United States v. Knight, 306 F.3d 534 (8th Cir. 2002) ... 13

United States v. Leon, 468 U.S. 897 (1984) ............. 22

Cases—Continued Page

United States v. Proctor, 489 F.3d 1348 (D.C. Cir.

ee eee teehee eaeekeedeeseenes 13

United States v. Robinson, 414 U.S. 218 (1973) ..... 5, 9, 10

United States v. Watson, 423 U.S. 411 (1976) ........... 8

Weeks v. United States, 232 U.S. 383 (1914) ......... 9,12

Whren v. United States, 517 U.S. 806

lice ie eheeneuedetseseeces 5, 7, 12, 13, 16

Wilson v. Arkansas, 514 U.S. 927 (1995) .............. 27

Wyoming v. Houghton, 526 U.S. 295 (1999) ........ 5, 8,17

Constitution and statutes:

ET cb cpnnnandceasecsececes pass~m

ns ees ad adecewisnebe 27

Ee ee eee 6, 17, 20

Alaska Stat. (2006):

ee iid eke wheeeheneeieune 14

ae eee picked endeesacnseneeses 14

Ark. Rev. Stat. Ann. § 16-81-102(a)(1) (2005) ........... 14

Cal. Penal Code § 830.32 (West Supp. 2007) ........... 14

Idaho Code Ann. § 19-603 (2004) .......... cee eeeees 14

Ind. Code Ann. § 9-30-2-2 (LexisNexis 2004) ........... 14

Md. Code Ann. Crim. Proc. §§ 2-202 to 2-204

EE foe i cea ebeeaueceeeeceseeces 14

Minn. Stat. Ann. (West Supp. 2007):

ee dee hendunceneseswacenesees 14

ETE Ee 14

Nev. Rev. Stat. Ann. § 171.124 (LexisNexis 2004)....... 14

N.H. Rev. Stat. Ann. § 594:10 (LexisNexis 2003) ....... 14

Vil

Statutes—Continued: Page

Ohio Rev. Code Ann. § 2935.03(A)(1) (LexisNexis

PE in tadddcccccccedeudvasdcccesscosccscs 14

Va. Code Ann. (2004):

Ee ene ne etn oe 2

DT U6 bcc dnaceepesasdnnesnecdedtudencesisnh 2

TE didi dvdccetnsabensiuncneddnsewenaebins 2, 16

TN dota ep eedeedatebnenébanenieinaehenen 16

EL i ¢ cco eeecetnewinenedaksbusuneeeeee 2

DET cidkeknttenveuaeededannnnianiidaan 2,15

Miscellaneous:

Judge Warren Davis, Should Georgia Change Its

Misdemeanor Arrest Laws to Authorize Issuing

More Field Citations?, 22 Ga. St. U. L. Rev. 313

Pi indideketbduhedesnedttuseeiasdesaddeseces 23

Floyd F. Feeny, Citation in Lieu of Arrest: The New

California Law, 25 Vand. L. Rev. 367 (1972) ........ 23

1 Wayne R. LaFave, Search and Seizure (4th ed.

DD asbnsietudesanateiesetbnbadtesabunbinsees 26

Sourcebook of Criminal Justice Statistics Online

(2005) <http://www.albany.edu/

sourcebook/pdf/t582005.pdf> ............ cee eee aee 21

William J. Stuntz, The Political Constitution of

Criminal Justice, 119 Harv. L. Rev. 780 (2006) ...... 21

In the Supreme Court of the United States

No. 06-1082

COMMONWEALTH OF VIRGINIA, PETITIONER

DAVID LEE MOORE

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a search in-

cident to an arrest by state police officers violates the

Fourth Amendment if the arrest is based upon probable

cause but contravenes state law. The United States pro-

secutes cases using evidence discovered through arrests

made by state authorities, including arrests that violate

state procedural rules. In addition, the decision in this

case could affect the remedies required for violations of

federal laws governing arrests by federal officers. The

United States therefore has a substantial interest in this

case.

STATEMENT

1. Under Virginia law, driving on a suspended li-

cense is a misdemeanor, punishable by a year in jail and

(1)

a $2500 fine. Va. Code Ann. §§ 18.2-11, 18.2-272, 46.2-

301(C) (2004). A Virginia police officer may arrest an

individual who commits that crime in the officer’s pres-

ence if the offender fails or refuses to discontinue the

offense, if the officer believes the offender is likely to

disregard a summons, or if the officer reasonably be-

lieves the offender is likely to harm himself or others.

Id. § 19-2.74. An officer may also make an arrest for

that offense in any jurisdiction where “prior general

approval has been granted by order of the general dis-

trict court.” Jd. § 46.2-936. In other circumstances, the

officer generally may only issue a summons and notice

to appear in court. /d. § 19-2.74.

2. In February 2003, respondent’s car was stopped

by two Virginia police officers, who determined that he

was driving on a suspended license. Believing they had

the prerogative to make an arrest, the officers took re-

spondent into custody. A search incident to the arrest

revealed that he was carrying 16 grams of crack cocaine

and $516 in cash. Pet. App. 1-2, 13-15; J.A. 15.

Respondent was indicted for possessing cocaine with

intent to distribute it, in violation of Virginia law. He

then moved to suppress the evidence obtained in the

search. Although he conceded that the officers had pro-

bable cause to stop his vehicle and to charge him with

driving on a suspended license, he argued that they vio-

lated Virginia law and the Fourth Amendment by ar-

resting him rather than issuing a summons. Pet. App. 2;

J.A. 19.

The trial court concluded that the arrest violated

neither Virginia law nor the Fourth Amendment and de-

nied the motion. J.A. 20-21. After a bench trial, the

court found respondent guilty and sentenced him to five

years in prison, with eighteen months suspended. Pet.

App. 2.

3. The Court of Appeals of Virginia reversed. Pet.

App. 35-48. The court concluded that none of the excep-

tions to Virginia’s prohibition on arrests for driving on

a suspended license applied, and the officers were there-

fore required by state law to issue a summons. /d. at 37-

39, 45-48. Because state law did not authorize respon-

dent’s arrest, the court held that the search incident to

the arrest violated the Fourth Amendment. /d. at 39-44.

The court stated that its holding was “a logical and nec-

essary extension of” Knowles v. lowa, 525 U.S. 113

(1998), \"hich held that the Fourth Amendment prohibits

a full search incident to the issuance of a traffic citation.

Pet. Anp. 43-44. The court further ruled that the Fourth

Amendment violation required suppression of the evi-

dence obtained in the search and dismissal of the indict-

ment against respondent. /d. at 48.

One judge dissented. Pet. App. 48-56. She concluded

that, under Atwater v. City of Lago Vista, 532 U.S. 318

(2001), the Fourth Amendment permits arrest for any

erime if the arresting officers have probable cause to

believe the offense was committed in their presence, and

state limitations on arrest have no bearing on the consti-

tutional analysis. Pet. App. 49. Because Virginia does

not apply the exclusionary rule for state law violations

absent statutory direction, the dissent would have af-

firmed the denial of the motion to suppress. /d. at 51.

4. The en banc court of appeals reversed the panel.

Pet. App. 12-27. The court held that, although the ar-

rest violated Virginia law, the arrest and resulting

search did not violate respondent’s Fourth Amendment

rights. /d. at 17. Relying on Atwater, the court ex-

plained that the arrest was constitutional because it was

based on probable cause, and “the issue of probable

cause is determined separate and apart from whether an

arrest violates a state statute.” Jd. at 22. The court fur-

ther explained that the search incident to the arrest was

likewise constitutional because “a search incident to an

arrest that is based upon probable cause complies with

the Fourth Amendment.” /bid. Because Virginia does

not provide an exclusionary remedy for violations of its

statutory restrictions on misdemeanor arrests, the court

affirmed the trial court’s denial of respondent’s motion

to suppress. /d. at 17. Four judges dissented on the

ground that Knowles “compels the conclusion” that the

search of respondent violated the Fourth Amendment.

Id. at 27.

5. The Supreme Court of Virginia reversed. Pet.

App. 1-11. Relying on Knowles and its own decision in

Lovelace v. Commonwealth, 500 S.E.2d 267 (Va. 1998),

which interpreted Knowles, the court held that the

search of respondent violated the Fourth Amendment.

Pet. App. 11. The court stated that, under Virginia law,

the “officers were authorized to issue only a summons,”

and therefore, “under the holding in Knowles, the offi-

cers could not lawfully conduct a full field-type search.”

Ibid. Because the court concluded that the search vio-

lated the Fourth Amendment, it dismissed the indict-

ment against respondent. /bid.

SUMMARY OF ARGUMENT

The Fourth Amendment permits a search incident to

an arrest based on probable cause even if the arrest vio-

lates state law.

A. This Court has consistently held that, “[iJ}f an offi-

cer has probable cause to believe that an individual has

committed even a very minor criminal offense in his pre-

sence, he may, without violating the Fourth Amend-

ment, arrest the offender.” Atwater v. City of Lago Vis-

ta, 582 U.S. 318, 354 (2001). When a police officer makes

a constitutionally valid arrest, the Fourth Amendment

permits a search of the person incident to that arrest, in

order to protect the officer’s safety and to recover evi-

dence of crime. United States v. Robinson, 414 U.S. 218

(1973). The Virginia Supreme Court held that a search

incident to an arrest based on probable cause nonethe-

less violates the Fourth Amendment if the arrest contra-

venes state law. That ruling conflicts with numerous

cases of this Court holding that state limitations on sear-

ches and seizures do not affect the reasonableness of the

searches and seizures under the Fourth Amendment.

See Whren v. United States, 517 U.S. 806, 819 (1996);

California v. Greenwood, 486 U.S. 35, 43 (1988); Cooper

v. California, 386 U.S. 58, 61 (1967); Elkins v. United

States, 364 U.S. 206, 223-224 (1960).

B. Constitutionalizing state restrictions on searches

and seizures also cannot be squared with this Court’s

repeated admonitions that Fourth Amendment rules

should be uniform and easily administrable. The States

place a multitude of restrictions on the arrest powers

of law enforcement officers. Constitutionalizing those

state rules would cause Fourth Amendment protections

to vary from State to State, within the same State, and

over time as States modify their rules of arrest. More-

over, many state restrictions on arrest turn on complex,

fact-intensive inquiries that may be difficult for both

arresting officers and reviewing courts to resolve.

Constitutionalizing the myriad and often technical state

restrictions on arrest therefore risks creating a “bog of

litigation.” Wyoming v. Houghton, 526 U.S. 295, 305

(1999).

C. Incorporating state restrictions on arrest into the

Fourth Amendment would also seriously disrupt the

traditional balance of federal and State authority.

States would acquire the ability to expand and contract

Fourth Amendment protections by changing their pro-

cedural rules governing arrest. At the same time, States

would lose their traditional authority to calibrate the

penalties for violations of their own laws, because viola-

tions of state arrest laws would automatically become

Fourth Amendment violations and trigger constitution-

ally mandated remedies. And federal courts hearing

damages actions under 42 U.S.C. 1983 would become the

enforcers of state law arrest rules incorporated into the

Fourth Amendment.

D. Constitutionalizing state restrictions on arrest

might also expand the exclusionary rule, by greatly in-

creasing the class of unconstitutional arrests. That

would be particularly inappropriate, because those state

law restrictions are often enacted for reasons other than

the protection of Fourth Amendment interests and do

not require suppression as a state-law remedy.

E. The Virginia Supreme Court mistakenly believed

that its decision was compelled by Knowles v. lowa, 525

U.S. 113 (1998). That decision is inapplicable. Knowles

holds that a search incident to arrest is not justified

when an officer merely issues a citation, but, here, re-

spondent was actually arrested and taken into custody.

Respondent mistakenly contends this Court has held

that a search incident to an arrest violates the Fourth

Amendment when the arrest contravenes state law. The

Court, however, has never so held. See United States v.

Di Re, 332 U.S. 581 (1948) (supervisory-powers rule to

remedy in federal court an illegal, but not unconstitu-

tional, arrest by federal officers); Johnson v. United

States, 333 U.S. 10, 15 & n.5 (1948) (dictum); Michigan

v. DeFillippo, 443 U.S. 31, 36 (1979) (dictum).

Finally, respondent erroneously suggests that an

arrest complies with the Fourth Amendment only if offi-

cers have probable cause to believe the suspect commit-

ted an “arrestable” offense under state law. That pro-

posed limitation on an officer’s search authority lacks

any support in precedent and contradicts basic princi-

ples underlying the Fourth Amendment.

ARGUMENT

A SEARCH INCIDENT TO AN ARREST BASED ON PROBA-

BLE CAUSE IS REASONABLE UNDER THE FOURTH

AMENDMENT EVEN IF THE ARREST VIOLATES STATE

LAW

A search is reasonable under the Fourth Amendment

if it is incident to an arrest based on probable cause to

believe that the person arrested was committing a

crime. The Virginia Supreme Court has added to that

established rule an additional and unjustified require-

ment that the arrest must also comply with state law.

This Court should reject that effort to absorb state ar-

rest law into the basic requirements of reasonableness

under the Fourth Amendment.

A. The Fourth Amendment Permits A Search Incident To

An Arrest Based On Probable Cause, And State Limita-

tions On Searches And Seizures Do Not Affect The Con-

stitutional Analysis

1. “With rare exceptions,” the reasonableness of a

search or seizure under the Fourth Amendment “is not

in doubt where [it] is based upon probable cause.”

Whren v. United States, 517 U.S. 806, 817 (1996). Thus,

outside the home, this Court has never required any-

thing more than probable cause for an arrest to comply

with the Fourth Amendment. On the contrary, a long

line of cases establishes that “[a] warrantless arrest of

an individual in a public place for a felony, or a misde-

meanor committed in the officer’s presence, is consistent

with the Fourth Amendment if the arrest is supported

by probable cause.” Maryland v. Pringle, 540 U.S. 366,

370 (2003).

The probable cause standard “has roots that are

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

98, 100 (1959). It reflects the “ancient common-law

rule” that warrantless arrests were permissible for mis-

demeanors or felonies committed in the arresting offi-

cer’s presence, and for felonies committed outside his

presence, if there was reasonable ground to believe a

crime was committed. United States v. Watson, 423

U.S. 411, 418 (1976); Atwater v. City of Lago Vista, 532

U.S. 318, 327-339 (2001). The probable cause test also

comports with “traditional standards of reasonable-

ness.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

As this Court has explained, it “represents a necessary

accommodation between the individual’s right to liberty

and the State’s duty to control crime.” Gerstein v.

Pugh, 420 U.S. 103, 112 (1975). Probable cause “is a

practical, nontechnical conception” that constitutes “the

best compromise that has been found for accommodating

these often opposing interests. Requiring more would

unduly hamper law enforcement. To allow less would be

to leave law-abiding citizens at the mercy of { police] offi-

cers’ whim or caprice.” /bid. (citation omitted).

The probable cause test “applie{s] to all arrests,

without the need to ‘balance’ the interests and circum-

stances involved in particular situations,” and regardless

of the seriousness of the offense under state law. Dun-

away v. New York, 442 U.S. 200, 208 (1979). In Atwater,

this Court recently reaffirmed the long-prevailing rule

that,“[i]f an officer has probable cause to believe that an

individual has committed even a very minor criminal

offense in his presence, he may, without violating the

Fourth Amendment, arrest the offender.” 532 U.S. at

354. The offense in Atwater—failure to wear a seat-

belt—was punishable only by a fine, id. at 323, and was

therefore less serious than respondent’s crime of driving

on a suspended license, which is punishable by a year in

jail. Although state law authorized the arrest in At-

water, ibid., this Court did not suggest that the authori-

zation was relevant to whether the arrest complied with

the Fourth Amendment. And, although the Court noted

that many jurisdictions impose additional restrictions on

warrantless arrests, id. at 352, it never suggested that

those restrictions might be incorporated into the consti-

tutional analysis, which the Court held turned solely on

probable cause, id. at 354.

2. When a police officer makes a constitutionally

valid arrest, it is reasonable under the Fourth Amend-

ment for the officer to search the person arrested as an

incident to that arrest. The propriety of such searches

was “always recognized under English and A-nerican

law” and “has been uniformly maintained in many

cases.” Weeks v. United States, 232 U.S. 383, 392 (1914).

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

the Court rejected a Fourth Amendment challenge to a

search incident to arrest for a crime virtually identical

to respondent’s—“operating a motor vehicle after the

revocation of [an] operator’s permit.” Jd. at 220. The

Court explained that searches incident to arrest are jus-

tified for two reasons: the need to ensure the safety of

law enforcement officers and the interest in discovering

additional evidence. /d. at 234. The Court concluded

that those justifications warrant a bright-line rule that

a search is reasonable under the Fourth Amendment

whenever there has been a constitutionally valid arrest,

without inquiry into whether the justifications are actu-

ally implicated in a particular case. Jd. at 236.

Although the Court described the authority to

search as triggered by a “lawful arrest,” it made clear

that “lawful” means “constitutional.” Robinson, 414

U.S. at 236. The Court explained that “[a] custodial ar-

rest of a suspect based on probable cause is a reasonable

intrusion under the Fourth Amendment; that intrusion

being lawful, a search incident to the arrest requires no

additional justification.” /d. at 235. Other cases are in

accord. For example, in Beck v. Ohio, 379 U.S. 89, 91

(1964), the Court stated that “[t]he constitutional valid-

ity of the search in this case, then, must depend upon the

constitutional validity of the petitioner’s arrest,” which

turned on “whether, at the moment the arrest was made,

the officers had probable cause.” And, in Adams v. Wil-

liams, 407 U.S. 148, 149 (1972), the Court stated that,

because the defendant’s arrest “was supported by prob-

able cause,” “the search of his person and of the car inci-

dent to that arrest was lawful.”

3. Respondent’s arrest was validly based on proba-

ble cause under Atwater, and the officers conducted a

valid search incident to arrest under Robinson. The

Virginia Supreme Court nonetheless held that the

search violated the Fourth Amendment because respon-

dent’s arrest violated Virginia law. That ruling conflicts

with numerous cases of this Court holding that state

limitations on searches and seizures do not affect the

reasonableness of those searches or seizures under the

Fourth Amendment.

As for searches, in Cooper v. California, 386 U.S. 58

(1967), the Court upheld the constitutionality of the

search of an automobile impounded upon the defendant’s

arrest. Noting the lower court’s conclusion that state

law did not authorize the search, this Court held that the

lack of authorization was irrelevant to the constitutional-

ity of the search under the Fourth Amendment: “Just as

a search authorized by state law may be an unreason-

able one under that amendment, so may a search not

expressly authorized by state law be justified as a con-

stitutionally reasonable one.” Jd. at 61.'

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

Court again refused to incorporate state law into the

Fourth Amendment. The Court held that a search of the

defendants’ garbage did not violate the Fourth Amend-

ment because they had no reasonable expectation of pri-

vacy in their trash. The Court rejected the contention

that a reasonable expectation of privacy existed because

the search was prohibited by California law. The Court

explained that “[i]ndividual States may surely construe

their own constitutions as imposing more stringent con-

straints on police conduct than does the Federal Consti-

tution. We have never intimated, however, that whether

or not a search is reasonable within the meaning of the

Fourth Amendment depends on the law of the particular

State in which the search occurs.” /d. at 43.

The same principle holds true for seizures. In

Whren, the Court held that a traffic stop complies with

' Even before Cooper, in Elkins v. United States, 364 U.S. 206 (1960),

the Court had stressed that the test for whether a search is constitu-

tional “is one of federal law, neither enlarged by what one state court

may have countenanced, nor diminished by what another may have col-

orably suppressed.” /d. at 224. See Preston v. United States, 376 U.S.

364, 366 (1964) (applying Elkins to a search incident to arrest).

the Fourth Amendment, regardless of the motivation for

the stop, if police officers have probable cause to believe

that the motorist committed a traffic violation. 517 U.S.

at 819. In so holding, the Court rejected the defendants’

reliance on a local police regulation that prohibited the

stop. /d. at 815. The Court explained that such limita-

tions “vary from place to place and from time to time,”

but the Fourth Amendment’s protections are not “so

variable.” /bid.”

State law, of course, is relevant to the reasonableness

of an arrest in one sense: the relevant substantive law

informs whether officers can reasonably believe that a

person is engaged (or has engaged) in conduct that vio-

lates that law, and thus whether the officer has probable

cause. But the States’ responsibility for defining crimes

does not justify a rule that state procedural limits on

searches and seizures define Fourth Amendment

protections. That rule is foreclosed by precedent and

inconsistent with the Amendment’s role in guaranteeing

all citizens certain fundamental protections that reflect

our national heritage and common law traditions. See

Weeks, 232 US. at 391.’

* The Fourth Amendment rule is also consistent with the treatment

of violations of state law in the qualified immunity inquiry. The fact

that an officer’s conduct violated state law or regulations does not result

in a finding that the prohibition on the officer’s conduct was clearly es-

tablished. See, e.g., Davis v. Scherer, 468 U.S. 183, 193-196 (1984). The

reasons for refusing to conflate the state law and federal law inquiries

in that context also apply in the Fourth Amendment context.

* In the context of searches or seizures for which no individualized

suspicion is required, such as inventory and administrative searches,

the Court has looked to the existence of state policies governing police

actions in determining that the actions are reasonable under the Fourth

Amendment. See, e.g., Florida v. Wells, 495 U.S. 1, 4 (1990); New York

v. Burger, 482 U.S. 691, 703 (1987). Some lower courts have held that

B. Constitutionalizing State Restrictions Would Balkanize

Fourth Amendment Protections And Unduly Complicate

Constitutional Analysis

The rule adopted by the court below also conflicts

with this Court’s repeated admonitions that Fourth Am-

endment rules should be uniform and easily administra-

ble.

1. This Court has often noted the “important need

for uniformity in federal law.” Michigan v. Long, 463

U.S. 1032, 1040 (1983). The Court has placed particular

importance on uniformity in the Fourth Amendment

context. See Devenpeck v. Alford, 543 U.S. 146, 154

(2004) (rejecting proposed rule that would result in “ar-

bitrarily variable protection”); Whren, 517 U.S. at 815

(rejecting rule that would make Fourth Amendment

protections “vary from place to place and from time to

time”).

Because the rule adopted by the Virginia Supreme

Court constitutionalizes state restrictions on arrest, it

would result in the “arbitrarily variable protection” that

this Court has rejected. The States place numerous lim-

itations on the arrest powers of law enforcement offi-

cers. States limit authority to arrest based on who com-

mits the crime, who the victim is, where the crime oc-

curs, when the crime occurs, the value of what is taken,

who the arresting officer is, what the officer is wearing,

the Fourth Amendment is violated when those state policies are not

followed. See, e.g., United States v. Proctor, 489 F 3d 1348, 1354 (D.C.

Cir. 2007) (inventory search); United States v. Knight, 306 F.3d 534,

535-536 (8th Cir. 2002) (administrative search). In the context of

suspicionless searches and seizures, the existence of standardized state

policies provides protection against arbitariness. No corresponding

need to inquire into state policies exists in the context of a search

incident to an arrest that is based upon individualized probable cause.

when the arrest occurs, where the arrest occurs, and

where the nearest judicial officer is located.‘ Different

States apply different rules to the same situation. This

case provides a good example: Like Virginia, some

States generally prohibit warrantless arrests for driving

on a suspended license. See, e.g., Pet. App. 37-39; State

v. Bricker, 134 P.3d 800, 803 (N.M. Ct. App. 2006); Com-

monwealth v. Baez, 678 N.E.2d 1335, 1338 (Mass. App.

Ct. 1997). Other States generally permit warrantless

* See, e.g., Ark. Rev. Stat. Ann. § 16-81-102(a)(1) (2005) (prohibiting

arrest, within 15 days of a legislative session, of state legislators, their

clerks, sergeants-at-arms, or doorkeepers); Md. Code Ann. Crim. Proc.

§§ 2-202 to 2-204 (LexisNexis 2001) (generally limiting warrantless

misdemeanor arrests to offenses committed in officer’s presence but

creating exception for, inter alia, battery of “the person’s spouse or

another person with whom the person resides”); Idaho Code Ann.

§ 19-603 (2004) (authorizing arrest for misdemeanors committed outside

presence of officer if reasonable cause to believe crime committed

“aboard an aircraft”); N.H. Rev. Stat. Ann. § 594:10 (LexisNexis 2003)

(requiring that misdemeanor arrest be committed in presence of officer

but creating exception for specified crimes of domestic violence

committed “within the past 12 hours”); Minn. Stat. Ann. § 609.52(3),

629.34(1)(e)(1)-(5) (West Supp. 2007) (prohibiting warrantless arrests

for theft of less than $500 if committed outside officer’s presence); Cal.

Penal Code § 830.32 (West Supp. 2007) (community college police may

arrest only if there is “immediate danger to person or property” or

escape is in progress); Ind. Code Ann. § 9-30-2-2 (LexisNexis 2004)

(officer must be in uniform and marked vehicle to arrest for traffic

offense); Nev. Rev. Stat. Ann. § 171.124 (LexisNexis 2006) (forbidding

warrantless arrests at night except for felonies or gross misdemean-

ors); Ohio Rev. Code Ann. § 2935.03(A)(1) (LexisNexis Supp. 2007)

(restricting arrests to “within the limits of [an arresting officer's]

political subdivision,” subject to limited exceptions); Alaska Stat.

§§ 12.25.030, 12.25.035 (2006) (waiving i1.-the-presence requirement for

misdemeanors if “personal or property damage” is likely absent arrest

and “there is no known judicial officer * * * within a radius of 25

miles”). |

arrests for that crime. See, e.g., State v. Valenzuela, 898

P.2d 1010, 1012 (Ariz. Ct. App. 1995); State v. Pulfrey,

111 P.3d 1162 (Wash. 2005); State v. Lopez, 588 A.2d 318,

319 (Me. 1991). Consequently, under the rule adopted

below, a search incident to an arrest based on probable

cause to believe that a motorist was driving on a sus-

pended license would violate the Fourth Amendment in

Virginia, New Mexico, and Massachusetts, but not in

Arizona, Washingtun, and Maine.

Indeed, Fourth Amendment protections could vary

even within the same State. For example, Virginia’s

prohibition on warrantless arrests for driving on a sus-

pended license does not apply in jurisdictions where

“prior general approval has been granted by order of

the general district court.” Va. Code Ann. § 46.2-936

(2004). Thus, respondent’s search would not have vio-

lated the Fourth Amendment in such a jurisdiction, even

though it violated the Amendment in the rest of the

State.

In addition, Fourth Amendment protections would

change whenever a State changed its rules of arrest.

For example, in 1969, North Dakota modified its law

governing nighttime arrests to permit warrantless ar-

rests for driving while intoxicated even when the offense

is committed outside the officer’s presence. See City of

Minot v. Knudson, 184 N.W.2d 58, 63-64 (N.D. 1971).

Under the rule adopted below, the meaning of the

Fourth Amendment in North Dakota changed when that

law was enacted. Before enactment, a nighttime arrest

for driving while intoxicated violated the Fourth Amend-

ment unless the arresting officer was present when the

offense was committed. After enactment, the same ar-

rest for the same crime no longer contravened the

Fourth Amendment. This Court should not countenance

a rule under which “the search and seizure protections

of the Fourth Amendment are so variable.” Whren, 517

U.S. at 815.

2. The Court has also emphasized the value of “sim-

plicity and clarity” in Fourth Amendment rules. Duna-

way, 442 U.S. at 213. “A single, familiar standard is

essential to guide police officers, who have only limited

time and expertise to reflect on and balance the social

and individual interests involved in the specific cireum-

stances they confront.” /d. at 213-214. The Virginia

Supreme Court’s decision cannot be reconciled with that

“essential interest in readily administrable rules.”

Atwater, 532 U.S. at 347.

Many state restrictions on arrest turn on complex,

fact-intensive inquiries that may be difficult for both ar-

resting officers and reviewing courts to resolve. For ex-

ample, Virginia law would have authorized respondent’s

arrest if the arresting officers reasonably believed he

was likely to disregard a summons or to harm himself or

others, or if he failed to discontinue the offense. Va.

Code Ann. § 19-2.74 (2004). There can be considerable

uncertainty whether those conditions are satisfied. In-

deed, that question was litigated extensively below. Pet.

App. 16-19, 45-48. Laws limiting territorial authority to

arrest also illustrate the complexities presented by in-

corporating state restrictions into the Fourth Amend-

ment. For example, Virginia provides that an officer’s

authority to arrest generally extends one mile beyond

the boundary of his jurisdiction, but only 300 yards be-

yond “towns situated in counties having a density of pop-

ulation in excess of 300 inhabitants per square mile, or

in counties adjacent to cities having a population of

170,000 or more.” Va. Code Ann. § 19.2-259 (2004).

Although police officers must comply with such com-

plex restrictions on their arrest authority to satisfy state

law, constitutionalizing those restrictions would present

problems of a different order. Violations of constitu-

tional rules generally have significantly more severe

consequences than violations of state laws. Constitu-

tional violations usually trigger the exclusionary rule

and may expose officers to liability under 42 U.S.C.

1983. Claims of constitutional violations also often arise

in federal court actions. Federal courts are less familiar

with state provisions governing arrest and may find

them difficult to interpret and apply. Moreover, federal

court Fourth Amendment decisions could be under-

mined by subsequent state Supreme Court decisions

that construe state law restrictions on arrest differently

than the federal court did. Thus, constitutionalizing the

myriad state restrictions on arrest risks creating a “bog

of litigation” that will burden courts, expose state offi-

cers to federal liability, and result in the suppression of

reliable evidence. Houghton, 526 U.S. at 305.

C. Constitutionalizing State Restrictions Would Disrupt

The Balance Of State And Federal Authority

Incorporating state restrictions on arrest into the

Fourth Amendment would also seriously unsettle the

traditional allocation of authority between the States the

federal government.

1. This Court has repeatedly held that the States

lack authority to expand or contract Fourth Amend- _

ment protections. Although “‘a State is free as a matter

of its own law to impose greater restrictions on police

activity than those this Court holds to be necessary upon

federal constitutional standards,’ it ‘may not impose

such greater restrictions as a matter of federal constitu-

tional law when this Court specifically refrains from

imposing them.’” Arkansas v. Sullivan, 532 U.S. 769,

772 (2001) (quoting Oregon v. Hass, 420 U.S. 714, 719

(1975)). But that is precisely what constitutionalizing

state restrictions on searches and seizures would permit

States to do. They could alter the scope of substantive

Fourth Amendment protections merely by changing

their own laws.°

This case provides a good illustration: In Robinson,

the Court held that the Fourth Amendment permitted a

search incident to an arrest based on probable cause to

believe the defendant had committed essentially the

same crime that respondent committed here. If this

Court affirmed the decision below, Robinson would no

longer accurately state the Fourth Amendment rule in

Virginia. And Virginia, by enacting a state restriction

on arrest, would have expanded the Fourth Amendment

beyond what this Court held necessary in Robinson.

2. Constitutionalizing state restrictions on arrest

would also upset the federal-state balance in other ways.

Traditionally, each State has determined for itself the

appropriate response to violations of state limitations on

arrest. Some States apply the exclusionary rule as a

remedy, see, c.g., State v. Brown, 792 N.E.2d 175, 179

(Ohio 2003), while others provide less drastic penalties,

such as money damages, see, e.g., Garrett v. City of

Bossier City, 792 So. 2d 24 (La. Ct. App. 2001). This

Court has repeatedly held that the choice of remedy for

a state law violation is the prerogative of the State, not

a question of federal constitutional law. In Greenwood,

* However this Court resolves the question in Danforth v. Minne-

sota, No. 06-8273 (argued Oct. 31, 2007), there can be no question that

States cannot alter the substantive scope of federal constitutional

rights.

—_———- SO CL roe

= =

the Court rejected an argument that the Constitution

required California to impose the exclusionary rule for

violations of the State’s prohibition on warrantless sear-

ches of trash. 486 U.S. at 44-45. And, in Cooper, the

Court held that California was free “to apply its own

state harmless-error rule to” determine the remedy for

an automobile search that, although permissible under

the Fourth Amendment, violated state law. 386 U.S. at

62. If state laws governing searches and seizures were

incorporated into the Fourth Amendment, the States

would lose control over the remedies for violations of

their own laws.

Again, this case illustrates the problem. Although

Virginia prohibits some arrests otherwise permitted by

the Fourth Amendment, it generally provides a remedy

other than the exclusionary rule for violations of those

prohibitions. Under Virginia law, a person arrested

without adequate justification may sue in tort for dam-

ages. See Jordan v. Shands, 500 S.E2d 215, 218 (Va.

1988). Virginia generally reserves the exclusionary rule

for cases involving “an error of constitutional dimen-

sion.” Tharp v. Commonwealth, 270 S.E.2d 752, 755

(Va. 1980). Thus, but for the transformation of the state

law violation into a Fourth Amendment violation, Vir-

ginia would not apply the exclusionary rule for the viola-

tion here. Pet. App. 25-27. Nonetheless, the Virginia

Supreme Court’s incorporation of state law into the

Fourth Amendment led that court to suppress probative

evidence that respondent had committed a serious drug

offense and to dismiss the indictment against him. /d. at

11.

Just as this Court weighs the benefits of the exclu-

sionary rule against its costs when deciding whether to

extend it to specific constitutional violations, Hudson v.

Michigan, 126 S. Ct. 2159, 2165 (2006), States should be

free to decide that certain rights they have created are

not sufficiently critical to merit the exclusion of valuable

evidence. Indeed, if States were forced to choose be-

tween enacting a procedural protection the violation of

which would necessarily result in exclusion of reliable

evidence and forgoing the protection, they might well

choose the latter. See United States v. Caceres, 440 U.S.

741, 755-756 (1979) (refusing to exclude evidence ob-

tained in violation of federal agency regulations because

mandating exclusion might deter promulgation of ad-

ministrative privacy protections). But nothing in the

federal Constitution forces that choice on the States.

States may regulate constables and decide the appropri-

ate remedy when the constable blunders.

3. The decision below would also disrupt the federal-

state balance because state officials who violate the

Fourth Amenument may face damages actions in federal

court under Section 1983. Consequently, if violations of

state restrictions on searches and seizures qualified as

Fourth Amendment violations, federal courts would ef-

fectively become enforcers of those state laws.

This Court has never recognized “an action in federal

court for arrests by state officers who simply exceed

their authority.” Sosa v. Alvarez-Machain, 542 U.S.

692, 737 (2004). Indeed, the Court has rejected inter-

preting federal law to produce that “breathtaking” re-

sult. Jd. at 736. That is unsurprising, because “it is dif-

ficult to think of a greater intrusion on state sovereignty

than when a federal court instructs state officials on how

to conform their conduct to state law.” Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Yet

the Virginia Supreme Court’s rule would conscript the

Fourth Amendment to produce that result, which “con-

flicts directly with the principles of federalism.” /bid.

4. Respondent argues (Br. in Opp. 22) that, absent

the Virginia Supreme Court’s rule, state officers could

violate arrest procedures in States that mandate exclu-

sion as a remedy with the knowledge that the evidence

could be provided to federal authorities for use in fed-

eral court. This case does not present that concern, be-

cause Virginia does not mandate exclusion for the viola-

tion here, and this prosecution was brought in state

court. In any event, the concern is misplaced. Each

year, approximately nine million people are charged

with misdemeanors, but only 70,000 are indicted in fed-

eral court. William J. Stuntz, The Political Constitution

of Criminal Justice, 119 Harv. L. Rev. 780, 782 & n.5

(2006); Sourcebook of Criminal Justice Statistics On-

line (2005) <http://www.albany.edu/sourcebook/pdf/

t582005.pdf>. It is difficult to imagine that state offi-

cers would routinely arrest individuals in violation of

state law in the hope of finding evidence that could be

used only in the unlikely event an independent sovereign

elected to press charges. That scenario is particu’arly

implausible because unlawful arrests may expose offi-

cers to internal discipline and civil suits. See Hudson,

126 S. Ct. at 2168; pp. 18-19, supra. “[T]he country is

not confronting anything like an epidemic of unneces-

sary minor-offense arrests.” Atwater, 532 U.S. at 353.

Affirming the long-standing rule that States may fash-

ion their own remedies for violations of their own laws is

unlikely to trigger one.

D. Constitutionalizing State Restrictions Threatens Inap-

propriate Expansion Of The Exclusionary Rule

Although Fourth Amendment violations do not al-

ways require suppression, see Hudson, 126 S. Ct. at

2165, courts generally apply the exclusionary rule when

they conclude that a search was unreasonable under the

Fourth Amendment. The Virginia Supreme Court did so

here. Pet. App. 11. It is unclear whether this Court

would agree that exclusion is warranted when the al-

leged Fourth Amendment violation depends on a failure

to comply with state restrictions on searches and sei-

zures. If it does agree, however, the result will be the

routine use of the exclusionary rule to remedy violations

of state law.

That would be a significant and inappropriate expan-

sion of the suppression remedy. Because the social costs

of the exclusionary rule are very high, the Court has

stressed that it should be applied only when clearly jus-

tified. See Hudson, 126 S. Ct. at 2163; United States v.

Leon, 468 U.S. 897, 906-908 (1984). The Court generally

does not apply the suppression remedy for non-constitu-

tional violations, including violations of federal statutes,

treaties, and regulations. See Sanchez-Llamas v. Ore-

gon, 126 S. Ct. 2669, 2680 (2006); Caceres, 440 U.S. at

755-757; United States v. Donovan, 429 U.S. 413, 431-

439 (1977). And the Court has likewise refused to apply

the exclusionary rule in response to violations of state

statutes, even when those statutes regulate searches

and seizures. See On Le v. United States, 343 U.S. 747,

754-755 (1952); Olmstead v. United States, 277 U.S. 438,

466-469 (1928).

To be sure, even if this Court adopted the Virginia

Supreme Court’s rule, the Court could conclude that ap-

plying the exclusionary rule as a remedy for violations

of state restrictions on arrest is unwarranted, at least in

certain cases, because those restrictions are often en-

acted for reasons other than protecting privacy inter-

ests. For example, territorial limits on arrest powers

are typically enacted “to ‘protect the rights and auton-

omy of local governments’ in the area of law enforce-

ment.” State v. Hamilton, 688 N.W.2d 92, 98 (Mich.

2002) (citation omitted). Prohibitions on traffic stops by

non-uniformed officers are designed “to protect drivers

from police impersonators and to protect officers from

resistance should they not be recognized as officers.”

Bovie v. State, 760 N.E. 2d 1195, 1199 (Ind. Ct. App.

2002). Even statutes that permit or require citation in-

stead of arrest are frequently aimed at saving the time

and money involved in processing arrests rather than

shielding citizens from unreasonable seizures. See

Judge Warren Davis, Should Georgia Change Its Misde-

meanor Arrest Laws to Authorize Issuing More Field

Citations?, 22 Ga. St. U. L. Rev. 313, 317-336 (2005);

Floyd F. Feeny, Citation in Lieu of Arrest: The New

California Law, 25 Vand. L. Rev. 367, 367-371 (1972).

This Court has admonished that the exclusionary rule is

appropriate only to remedy violations that “implicate{]

important Fourth and Fifth Amendment interests.”

Sanchez-Llamas, 126 S. Ct. at 2681. Applying the rule

to remedy violations of state restrictions on arrest,

which often serve purposes unrelated to those constitu-

tional provisions, cannot be squared with that admoni-

tion.

But an exclusionary rule jurisprudence that condi-

tions the appropriate remedy on a further inquiry into

state law—particularly an inquiry into the underlying

purpose of the state limitation—has little to recommend

it and is unnecessary in any event. The more fundamen-

tal reason to reject the Virginia Supreme Court’s rule is

that state law violations should never render an arrest

unconstitutional in the first place.

E. Neither This Court’s Decisions Nor Respondent’s At-

tempt To Define An Arrestable Offense By Reference To

State Law Justifies Departing From the Fourth Amend-

ment Rule That An Arrest Is Reasonable If It Is Based

On Probable Cause

1. The Virginia Supreme Court believed that its

holding was compelled by Knowles v. Iowa, 525 U.S. 113

(1998). The court was mistaken.

Knowles involved a full search of an automobile con-

ducted after the driver was issued a citation but not

placed under arrest. 525 U.S. at 114. Because the offi-

cers did not make an arrest, the search could not be jus-

tified under the rule, recognized in Robinson, that the

Fourth Amendment permits a search incident to a con-

stitutionally valid arrest. The Court reasoned that the

rationales for permitting searches incident to arrest are

not sufficiently implicated where officers only issue a

citation. When a defendant is released rather than

handcuffed and transported to a distant location, the

encounter is likely to be briefer and less confrontational,

minimizing the danger to the officers. /d. at 117. More-

over, officers typically have little need to discover addi-

tional evidence. /d. at 118. At the same time that the

Court in Knowles refused to adopt a rule permitting a

“search incident to citation,” it reaffirmed the vitality of

Robinson’s “bright-line rule” permitting “a full field

search as incident to an arrest.” /bid.

Knowles has no application here, because respondent

was arrested and transported from the scene, not issued

a citation and released. Because respondent’s arrest

was constitutionally valid, the search of respondent inci-

dent to his arrest was constitutionally permissible under

the bright-line rule in Robinson.

Respondent contends (Br. in Opp. 21) that a Fourth

Amendment prohibition on arrest when state law autho-

rizes only citation is necessary to prevent circumvention

of Knowles, because otherwise officers will arrest sus-

pects in violation of state law in order to search them for

evidence of other crimes. Respondent, however, has not

identified any evidence that misdemeanor arrests have

increased in States that bar use of the exclusionary rule

to remedy violations of state limits on arrest. Indeed, “it

is in the interest of the police to limit petty-offense ar-

rests, which carry costs that are simply too great to in-

cur without good reason.” Atwater, 532 U.S. at 352.

Moreover, as discussed above, officers who arrest in

violation of state law risk internal discipline and civil

damages suits. Given those potentially high costs, it is

unlikely that rogue officers will arrest and search people

who have committed minor crimes on the off-chance of

discovering evidence of some more serious offense. If an

officer did so, this Court has traditionally “assume[d]”

that such “unlawful police behavior would ‘be dealt with

appropriately’ by the authorities.” Hudson, 126 S. Ct.

at 2168 (citation omitted).

2. Respondent also contends (Br. in Opp. 16-20) that

this Court’s decisions hold that a search incident to ar-

rest violates the Fourth Amendment when the arrest

contravenes state law. That is incorrect. The Court has

never held a search unconstitutional because the under-

lying arrest violated a state law requirement.

Respondent principally relies (Br. in Opp. 18-20) on

United States v. Di Re, 332 U.S. 581 (1948). That deci-

sion, however, was not grounded in the Fourth Amend-

ment but “was ‘based on nonconstitutional consider-

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

§ 1.5(b) at 168 (4th ed. 2004) (LaFave) (quoting Street v.

Surdyka, 492 F.2d 368, 372 n.7 (4th Cir. 1974)). This

Court reversed the defendant’s federal court conviction

for possessing counterfeit gasoline coupons, which were

found on his person in a search incident to his arrest.

The arrest, although “for a federal offense,” was “made

by a state officer accompanied by federal officers who

had no power of arrest.” Di Re, 332 U.S. at 591. Given

those circumstances, the parties disputed whether state

or federal law governed the officer’s authority to make

the arrest. /d. at 588-589. The Court resolved that dis-

pute by concluding that, “in absence of an applicable

federal statute[,| the law of the state where an arrest

without warrant takes place determines its validity.” Jd.

at 589. The Court further concluded that the arrest was

not authorized by New York law, which permitted arrest

for a felony only if “the officer had reasonable grounds

to believe the suspect had committed” one. /d. at 591.

In discussing the lawfulness of the arrest, the Court

never mentioned the Fourth Amendment. See id. at

587-595. Di Re is thus best understood, not as a Fourth

Amendment ruling, but as an effort by the Court to clar-

ify the law federal courts should use to determine the

lawfulness of arrests for federal offenses. “So inter-

preted, Di Re is simply an instance of the Court utilizing

its supervisory power to exclude from a federal prosecu-

tion evidence obtained pursuant to an illegal but consti-

tutional federal arrest.” LaFave § 1.5(b) at 169.

In any event, although the Court did not analyze the

case this way, the requirement of New York law that the

Court found unsatisfied in Di Re mirrored the constitu-

tional requirement for a valid arrest. See 332 U.S. at

594-595 (equating “reasonable grounds” requirement

with“probable cause” standard). Thus, even if Di Re

were treated as a constitutional decision, its result

would be consistent with the Fourth Amendment rule

that nothing more than an arrest supported by probable

cause is required to support a valid search incident to

that arrest.

This Court cited Di Re in Miller v. United States,

357 U.S. 301 (1958), and Johnson v. United States, 333

U.S. 10 (1948). But neither of those cases transformed

Di Re’s supervisory-powers ruling into a Fourth Amend-

ment holding.

In Miller, federal agents conducted a search incident

to an arrest made after they entered a home without

knocking and announcing their presence. Citing Di Re,

the Court stated that the validity of the arrest should be

determined based on local law, but the Court then ob-

served that the government had conceded that the entry

should also be judged by the standards in a federal stat-

ute, 18 U.S.C. 3109. Miller, 357 U.S. at 305-306. After

concluding that the entry did not comply with Section

3109, the Court ordered the suppression of the evidence

discovered in the search. /d. at 307-314. Because Miller

turned on the meaning of Section 3109, this Court has

viewed it as a non-constitutional decision involving the

exercise of the Court’s supervisory authority. See

Sanchez-Llamas, 126 S. Ct. at 2681; Wilson v. Arkan-

sas, 514 U.S. 927, 934 & n.3 (1995); Ker v. California,

374 U.S. 23, 39 (1963) (plurality opinion); id. at 53 (opin-

ion of Brennan, J., joined by Warren, Douglas, and

Goldberg, JJ.).

In Johnson, the Court suppressed evidence discov-

ered in a search of the defendant’s residence after police

officers entered without a warrant or exigent circum-

stances. The Court held that the search was not justi-

fied as incident to the defendant’s arrest, but not be-

cause the arrest was unlawful. Rather, the Court held

that the search began when the officers entered the resi-

dence, and, at that time, they did not yet have probable

cause to arrest. The Court’s footnoted citation to Di Re

for the proposition that state law determines the validity

of warrantless arrests was therefore dictum. 333 U.S. at

15 n.5. Moreover, the state arrest law in Johnson paral-

leled the constitutional “probable cause” standard, see

id. at 15, so Johnson presents no conflict with the princi-

ple that the Fourth Amendment permits searches inci-

dent to arrests supported by probable cause.

Respondent’s reliance (Br. in Opp. 17-18) on Michi-

gan v. DeFillippo, 443 U.S. 31 (1979), is also misplaced.

In DeFillippo, the Court upheld the validity of a search

incident to an arrest based on probable cause to believe

that the defendant had violated an ordinance that was

later declared unconstitutional. In reaching its holding,

the Court reaffirmed the established rule that “the Con-

stitution permits an officer to arrest a suspect without

a warrant if there is probable cause to believe that the

suspect has committed or is committing an offense.” Jd.

at 36. The Court concluded that the arrest and subse-

quent search were constitutionally valid because, when

they were made, the arresting officer had “abundant

probable cause” to believe that the defendant had vio-

lated a “presumptively valid ordinance.” Jd. at 37. The

Court stated in passing that “[wJhether an officer is au-

thorized to make an arrest ordinarily depends, in the

first instance, on state law.” Jd. at 36. But that observa-

tion played no role in the Court’s decision because, as

the Court explained, the defendant did not contest that

his arrest complied with state law. bid.*

Respondent’s suggestion (Br. in Opp. 8-9) that a

search incident to an arrest that violates state law is un-

constitutional, even though the arrest itself is constitu-

tional, is also inconsistent with numerous cases, includ-

ing Robinson, Beck, and Adams, which make clear that

the constitutional validity of a search incident to arrest

follows from the constitutional validity of the arrest.

See p. 10, supra. Indeed, respondent’s argument is dif-

ficult to square with DeFillippo itself, which upheld the

validity of both the arrest and the search incident to the

arrest and seemed to view the latter as flowing naturally

from the validity of the former. See 443 U.S. at 40.

Respondent’s proposed rule also makes no sense.

Searches incident to arrest are justified because of the

need to ensure the safety of the arresting officers and

the interest in discovering additional evidence. Those

justifications apply with equal force regardless of whe-

ther the arrest complies with state law. Moreover, it

would be incongruous for the constitutional validity of a

search incident to arrest to turn on state law when state

law determines neither the constitutionality of the ar-

rest itself nor the constitutionality of other types of

searches, see Elkins, supra; Greenwood, supra.

* In Ker, a plurality of the Court also stated in passing that the law-

fulness of state arrests is determined by state law. See 374 U.S. at 37.

But the plurality concluded that the arrests complied with state law, id.

at 37-38, and the Court upheld the arrests and the subsequent search

as reasonable under the Fourth Amendment, id. at 44 (plurality

opinion); id. at 46 (concurring opinion of Harlan, J.). Kertherefore does

not hold that a search violates the Fourth Amendment if it is incident

to an arrest that contravenes state law.

3. Respondent’s “alternative” argument in defense

of the judgment below— that an arrest complies with

the Fourth Amendment only if there is probable cause

to believe the suspect committed “an arrestable offense”

under state law (Br. in Opp. 28)—also lacks merit. Re-

spondent cites no decision of this Court that even hints

at such a requirement. Moreover, an “arrestable” of-

fense requirement would present all of the problems

with constitutionalizing state restrictions on searches

and seizures discussed above.

An attempt to limit those problems by constitution-

alizing only certain state restrictions on arrest would

raise additional difficulties. Most significant, no logical

principle would cleanly divide those state restrictions

that should be incorporated into the Fourth Amendment

and those that should not. Respondent proposes to con-

stitutionalize only state laws that declare that an offense

is “categorically not subject to arrest by any officer.”

Br. in Opp. 27. But he offers no reason why that limita-

tion should be treated differently under the Fourth

Amendment from other state laws defining when sear-

ches and seizures are permissible. For example, why

should a state prohibition on arrest, however categori-

cal, be treated differently from the categorical state pro-

hibition on garbage searches that this Court refused to

incorporate into the Fourth Amendment in Greenwood?

It is also far from clear that the Virginia law at issue

here qualifies under respondent’s test. Although that

law generally prohibits arrests for driving on a sus-

pended license, the prohibition has numerous excep-

tions, including one that authorizes arrests in all cireum-

stances in any jurisdiction where the general district

court has given prior approval. See p. 2, supra. This

Court should avoid the quagmire presented by respon-

dent’s proposal and reaffirm the simple, longstanding

rule that a search incident to an arrest based on proba-

ble cause complies with the Fourth Amendment.

CONCLUSION

The judgment of the Supreme Court of Virginia

should be reversed.

Respectfully submitted.