Amicus Curiae Brief — Virginia v. Moore
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45P)°P No. 06-1082
IN THE
Supreme Court of the United States
a
COMMONWEALTH OF VIRGINIA,
Petitioner,
—_—vV.—
DAVID LEE MOORE,
Respondent.
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA
BRIEF AMICUS CURIAE OF
THE AMERICAN CIVIL LIBERTIES UNION
AND THE ACLU OF VIRGINIA
. INSUPPORT OF RESPONDENT
REBECCA GLENBERG
ACLU OF VIRGINIA
FOUNDATION
530 East Main Street
Suite 310
Richmond, Virginia 23219
(804) 644-8022
SUSAN N. HERMAN
Counsel of Record
250 Joralemon Street
Brooklyn, New York 11201
(718) 780-7945
STEVEN R. SHAPIRO
EMILY CHIANG
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
(212) 549-2590
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..............cccccccesseceeeseeeees ili
STATEMENT OF INTEREST ...................ccccceeeeeseees 1
STATEMENT OF THE CASE....................ccccccscesssecees 1
SUMMARY OF ARGUMENT .......0.0.... ccc eeese ees 4
SR ITITTIET iitiiteibcsteinhiinitiesiebeeeetariiearncinnaadedttatlaneniaditelesenin 6
I. ASEARCH INCIDENT TO AN ARREST
THAT IS UNLAWFUL UNDER
APPLICABLE STATE LAW IS NOTA
REASONABLE SEARCH WITHIN THE
MEANING OF THE FOURTH
ERIE eter: NOT SS nae OE 6
A. A State’s Law Of Arrest Provides A
Baseline For Determining When An
Arrest Is Reasonable Within The
Meaning Of The Fourth Amendment. ....... 6
B. Relying On State Law To Determine
When An Arrest Is Reasonable Is
Consistent With The Interpretation of
Many Other Bill Of Rights
a A ee 13
Il. ABSENT A STATE LAW LIMITATION,
CURRENT FOURTH AMENDMENT
LAW CREATES INCENTIVES FOR
UNLAWFUL ARRESTS AND
UNJUSTIFIED SEARCHES WITHOUT
IMPOSING COUNTERVAILING LIMITS... 21
A. The Search Incident to Arrest Doctrine
Invites Warrantless Searches Even
Where No Exigency Exists. ......................
B. The Lack Of Either Subjective Or
Objective Limitations On The Arrest
Power Invites Unreasonable Arrests
I
Ii]. RELYING ON STATE LAW TO DEFINE
WHEN AN ARREST IS REASONABLE
FOR FOURTH AMENDMENT
PURPOSES IS NECESSARY TO
PREVENT ARBITRARY AND
DISCRIMINATORY ARRESTS AND
INCIDENT SEARCHES ................ccecsceseseeeees
A. Encouraging Officers To Ignore
Limitations Imposed By Their State
Law Of Arrest Invites Arbitrary,
Discriminatory, And Ineffective Law
Is siiicaesnsininiendaiibulicadaiidtehiinemnitnbpenetien
B. Virginia’s State Constitution Does Not
Provide Any Independent Limit On
Police Discretion To Arrest.......................
NTE arrncenscsinenhttinnonanninitibaiancniontanigepienicintiiio
22
24
28
TABLE OF AUTHORITIES
CASES
Argersinger v. Hamlin,
elt 17
Arnett v. Kennedy,
EE a RE > 14, 19
Atwater v. City of Lago Vista,
a aclaaietl passim
Baldwin v. New York,
Ea a Re ra 17
Barnett v. United States,
§25 A.2d 197 (D.C. Ct. App. 1987) .................000000 29
Blockburger v. United States,
RE ea a rR 15
Board of Regents v. Roth,
es Te GE aicisittscicicctncsnsscnisesciinns 5, 13, 14, 15
Boothe v. Hammock,
Se ee EI, IUD cvciccscticsacccunsesosencisnienbens 17
Brendlin v. California,
Oe i I sccniseencictinsunediiis 24, 26, 28
Brewer v. Williams,
Ce Ee TERT ME 16
Brinegar v. United States,
ENE aoe ene RNR TIES 2: 26
California v. Greenwood,
Te a 20, 31
Chavez v. Ill. State Police,
S01 F.O0 GIS (7th Cir. BOOD)...n...0....0.0.0..00..0..000000085 32
Cleveland Board of Educ. v. Loudermill,
EE EF ee See 14
Cooper v. California,
STI a ne TA 11
Devenpeck v. Alford,
ee ee ETC N IE RTE 12
Elkins v. United States,
la 11
Entick v. Carrington,
19 How. St. Tr. 1029 (C.P. 1765)...................0..0000. 27
Fisher v. Washington Met. Area Transit Auth.,
690 F.2d 1133 (4th Cir. 1982)..........................0c000 28
Goldberg v. Kelly,
ETRE PaO TC RTS 14
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex,
I cestiatnill 17
Hiibel v. Sixth Judicial Dist. Court,
Sa epniemeiinnel 9
Hudson v. Michigan,
I alain 34
iV
Johnson v. United States,
Es SIP UIIII «1, sscriascnnisisndiaiseinincdermaiaenausonesalaal 7, 29
Joint Anti-Fascist Refugee Committee v. McGrath,
te eR ccciiciccnccsincnciqnntuiinieatiateaedamiaaaia 14
Jones v. United States,
gf ECR Er Oi emote. 8
Katz v. United States,
UI TIE TI... ori nachieasniibipmasanlaanaaiiameniiaianeala’ 20
Ker v. California,
SNe Sa BE IIo ccsicinipurseiiinncieiesiieninbanibinbammaaiuntidl 7,9, 29
Kirby v. Illinois, |
ee Pa SI CUI iscsi occncintincncinstendiinncdinsneimibenaaiadil 16
Knowles v. Iowa,
Be es a I cc ccsnnctanensoninintianpmniendaln 1, 21, 23
Lowe v. Commonwealth,
230 Va. 346, 337 S.E.2d 273 (1985).....0.0000 ce. 33
Mapp v. Ohio,
re ee I incricctcanictscnshansiiteniiintalamamnall 8, 34
Maryland v. Pringle,
ee as I iadenirccicnsssesienideibainiammeimmamaaians 11
Massiah v. United States,
pF SF EDEN MUTT TUTE om. 16
Mathews v. Eldridge,
SG Br i cicccccccsnnnicntistsscccuintsnntenaaeil 14, 15
Meachum v. Fano,
EE 17
Miller v. United States,
Se 7
Moore v. Illinois,
I ssiciaias 16
New York v. Belton,
Ee 22, 26
Perry Education Ass’n v. Perry Local Educators’
Ass'n, .
EE 18
Phillips v. Washington Legal Found.,
a senseeneenonane 15
Robinson v. California,
I cremains 22
Rothgery v. Gillespie County,
491 F.3d 293 (5th Cir. 2007),
cert. granted, 07-440 (Dec. 3, 2007)...............0..00. 16
Sandin v. Conner,
St Ee 12
Smith v. Maryland,
Ee 18
Thomas v. Florida,
614 So.2d 468 (Filia. 1993) ................................ 28, 30
Thornton v. United States,
ses cnsessnsumnncnccsoes 22, 25, 26
United States v. Di Re,
332 U.S. 581 (1948) ......cccccccccecocesecsecsecsesceseceeseveee 7, 8
United States v. Herring,
35 F. Supp. 2d 1253 (D. Or. 1999)... ee. 28
United States v. McLaughlin,
170 F.3d 889 (9th Cir. 1999)..............cccccecececeeeeeeees 25
United States v. Miller,
Eee ee eee ne ee 18
Webb’s Fabulous Pharmacies v. Beckwith,
EE TS A eS ACCS ae 15
Welsh v. Wisconsin,
EEC eee es 9
Whren v. United States,
GE eee passim
Wilson v. Arkansas,
ET MN SMR ORR TOE ae Fe )
CONSTITUTIONAL PROVISIONS &
STATUTES
VIRGINIA CONSTITUTION, article I, § 10 .................... 32
Act of September 24, 1789, Ch. 20, § 33, 1
TITIAN scislediettarnitbeipistdainbideiiniendangieceabaniinsininniiabieneinmaiiaseites 8
I leat 2,3
Wis. Stat. § 346.65(2) (1975)........... cece ceseeeeeeeeeeees 9
Wis. Stat. § 346.65(2)(a) (Supp. 1983-1984) .............. 9
vil
OTHER AUTHORITIES
A. E. Dick Howard, Commentaries on the
Constitution of Virginia 182 (1974)....................0. 33
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T
OF JUSTICE, CHARACTERISTICS OF DRIVERS
STOPPED BY POLICE 2002 5 (2006), available
at http://www.ojp.usdoj/bjs/
I i sciidictiUhintarintoncnteninienemone 30, 31
David A. Sklansky, Traffic Stops, Minority
Motorists, and the Future of the Fourth
Amendment, 1997 SuP. CT. REV. 271...............0.... 32
Donald A. Dripps, The Fourth Amendment
and the Fallacy of Composition:
Determinacy versus Legitimacy in a Regime
of Bright-Line Rules, 74 Miss. L.J. 341
RACIAL PROFILING DATA COLLECTION
RESOURCE CENTER AT NORTHEASTERN
UNIVERSITY, http://www.racialprofiling
analysis.neu.edu/background/jurisdictions.
Sn caiciscieresteipaniniepinsiiniiediailitiphedalindiinmpemnnmnsecnnien 31
Richard S. Frase, What Were They Thinking?
Fourth Amendment Unreasonableness in
Atwater v. City of Lago Vista, 71 ForRD. L.
SETS SEAS aera 25
Robert C. Post, Between Governance and
Management: The History and Theory of
the Public Forum, 34 UCLA L. REv. 1713
ETE SIE ERASE TSS 22S AEE eae On 18
Samuel R. Gross & Debra Livingston, Racial
Profiling Under Attack, 102 COLUM. L.
a iia asian ernie cilities 31
Susan N. Herman, The New Liberty: The
Procedural Due Process Rights of Prisoners
and Others Under the Burger Court, 59
Ck tS | Een 17
Thomas W. Merrill, The Landscape of
Constitutional Property, 86 VA. L. REV. 885
Thomas Y. Davies, Recovering the Original
Fourth Amendment, 98 MICH. L. REV. 547
Fe ativnnseresenceeapintunteanentencetinnsannenetinntannlinemeeinsaste 31
Wayne R. LaFave, The “Routine Traffic Stop”
from Start to Finish: Too Much “Routine,”
Not Enough Fourth Amendment, 102 MICH.
% % —___ SS TPE Set eene eee 29, 32
ix
STATEMENT OF INTEREST!
The American Civil Liberties Union (ACLU) is
a nationwide, non-partisan, non-profit organization
with more than 500,000 members dedicated to the
principles of liberty and equality embodied in the
Constitution and this nation’s civil rights laws. The
ACLU has participated in numerous Fourth
Amendment cases before this Court including, of
particular note here, Atwater v. City of Lago Vista,
532 U.S. 318 (2001), and Knowles v. Iowa, 525 U.S.
113 (1998). The ACLU of Virginia is a statewide
affiliate of the national ACLU.
STATEMENT OF THE CASE
The Virginia state officers involved in this case
concededly violated state law and aggressively
exploited constitutional law exceptions designed for
exigencies in circumstances where there was no
exigency, all in a transparent attempt to avoid the
Fourth Amendment’s requirement that they obtain a
warrant before searching respondent David Lee
Moore and his hotel room.
The initial stop of Moore, according to the
officers involved, was due to a mistake. Officers
Anthony and McAndrew were discussing the fact
' Both parties have lodged blanket letters of consent with the
Court. Pursuant to Rule 37.6, counsel for amici states that no
counsel! for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person
other than amicus curiae, its members or its counsel made a
monetary contribution to its preparation or submission.
that a man nicknamed “Chubs’” was driving a car in
their area. Although this fact did not seem
remarkable in itself, Detective Karpowski, who
overheard their conversation on his police radio, was
aware that a man nicknamed “Chubs,” one
Christopher Delbridge, had recently been released
from a federal penitentiary and had been driving on
a suspended license. (Karpowski said he had learned
this because he had stopped Delbridge the week
before.) Karpowski radioed the other officers and
told them that “Chubs” was driving with a suspended
license and that they should stop his vehicle.
The officers stopped the car in question, which
was actually being driven by David Lee Moore, not
the individual known to Detective Karpowski.
Amazingly enough, Moore, who evidently was also
nicknamed “Chubs,” was also driving on a suspended
license.
At this point, Virginia law required the officers
to do no more than give Moore a summons for
committing a misdemeanor and then release him.”
The only exceptions to this rule provided by the
? “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 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 . . . the arresting officer shal! 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 person of his written promise to appear at such time and
place, the officer shal] forthwith release him from custody.” Va.
Code § 19.2-74(A)(1).
2
Virginia Code, under which an arrest would have
been permitted, did not apply in this case.’
Despite the clear command of Virginia law,
the officers placed Moore under arrest for committing
the misdemeanor of driving with a _ suspended
license, handcuffed him, and advised him of his
Miranda rights. Their reason for arresting him, and
the reason for their initial interest in his presence in
the area, quickly became apparent. Officer Anthony
asked Moore whether he had any narcotics on his
person and where he was staying. When Moore
replied that he was staying at an Econo-Lodge in
Chesapeake, he was taken to Officer McAndrew’s
vehicle where he was asked to sign a consent form
allowing the officers to search his hotel room without
a warrant. He signed the form. He was then placed
in the police car, but was not searched. The officers
later explained this as another mistake — Officer
McAndrew said he was under the impression that
Moore had already been searched. The officers then
called animal control to pick up the dog in Moore’s
car and, after waiting forty-five minutes for their
arrival, drove Moore to his hotel room so they could
conduct their search. There, Officer McAndrew
somehow realized that Moore had not yet been
searched. The officers performed a protective sweep
of the room and a search of Moore’s person, finding
16 grams of crack cocaine and $516.
* Section 19.2-74(A)(1) allows warrantless arrests for Class 1
and Class 2 misdemeanors only if the person fails or refuses to
discontinue the unlawful act, or is believed to be likely to
disregard a summons or to cause harm to himself or any other
person.
3
Officer Anthony testified that Moore was not
released immediately because “we were still in the
middle of an investigation; the investigation was not
complete yet. We were, pursuant to the traffic stop, .
.. also conducting a narcotics investigation.” Moore
v. Commonwealth, 47 Va. App. 55, 60, 622 S.E.2d
253, 256 (2005) (en banc). These facts do not
describe a search incident to arrest, but an arrest
incident to the desire to search both Moore and his
hotel room. Virginia law clearly required the officers
to obtain a search warrant before doing so.
The trial court denied Moore’s motion to
suppress the cocaine and he was convicted of a drug
offense. On appeal, a divided Court of Appeals voted
to reverse the conviction, 45 Va. App. 146, 609 S.E.2d
74 (2005). On rehearing en banc, a divided Court of
Appeals affirmed the conviction. 47 Va. App. 55, 622
S.E.2d 253 (2005). The Virginia Supreme Court then
held unanimously, seven votes to none, that the
evidence should have been suppressed as
unconstitutionally obtained. 272 Va. 717, 636 S.E.2d
395 (2006).
SUMMARY OF ARGUMENT
An arrest for an offense Virginia state law
declares not to be arrestable is an unreasonable
seizure within the meaning of the Fourth
Amendment. The Court has often looked to a
state’s law of arrest in Fourth Amendment decisions,
and has never held that state law defining arrestable
offenses may be ignored.
Looking to state law as a baseline to decide
whether an arrest is reasonable under the Fourth
4
Amendment is, moreover, consistent with the
approach the Court has taken in interpreting many
other constitutional guarantees. For example, in the
procedural due process area, the Court looks to state
law as a primary source of entitlements. If the Court
concludes that state law has created an entitlement,
it then employs the Due Process Clause to decide, as
a matter of federal constitutional law, what
protections should attach to that entitlement. See
Board of Regents v. Roth, 408 U.S. 564 (1972). The
same two-step analysis, starting with a policy
decision made by state law and ending by putting the
procedural consequences of that decision beyond the
state’s reach, also applies to Fifth Amendment
Double Jeopardy and Takings claims, Sixth
Amendment claims about the scope of the right to
counsel and right to jury trial, Due Process claims
regarding the liberty of prisoners, and even the First
Amendment’s public forum doctrine.
The Court has already decided that the Fourth
Amendment allows a state to authorize arrest for
even minor offenses. See Atwater, supra. But when,
as here, a state has made the opposite choice, the
Fourth Amendment should be construed to enforce
that policy choice by declaring the _ arrest
constitutionally unreasonable. Otherwise, the police
have in effect been given a constitutional carte
blanche to engage in lawless, arbitrary, and
discriminatory arrests.
Probable cause is a necessary ingredient of a
constitutional arrest under the Fourth Amendment
but it is not a sufficient safeguard when the state
itself has concluded that arrest is an excessive
response to particular offenses. Nor does the
5
Virginia Constitution provide an adequate safeguard
in this case since its relevant provisions have been
deemed co-extensive with the Fourth Amendment.
The Court is not being asked to impose a
limitation on Virginia’s officers that Virginia would
find objectionable. To the contrary, the Court is
merely being asked to help Virginia enforce the
constitutional consequences of its own _ policy
decisions.
ARGUMENT
I. A SEARCH INCIDENT TO AN ARREST
THAT IS UNLAWFUL UNDER APPLICABLE
STATE LAW IS NOT A REASONABLE
SEARCH WITHIN THE MEANING OF THE
FOURTH AMENDMENT
A. A State’s Law Of Arrest Provides A
Baseline For Determining When An
Arrest Is Reasonable Within The
Meaning Of The Fourth Amendment.
The idea that a state’s law of arrest provides a
baseline for Fourth Amendment interpretation is not
new. The Court has often stated that the question of
whether a search incident to arrest is constitutional
can only be answered by looking to the particular
requirements of state law.
The Government contends, however, that this
search without warrant must be held valid
because incident to an arrest. This alleged
ground of validity requires examination of the
facts to determine whether the arrest itself
was lawful. Since it was without warrant, it
6
could be valid only if for a crime committed in
the presence of the arresting officer or for a
felony of which he had reasonable cause to
believe defendant guilty.
Note 5: This is the Washington law. State law
determines the validity of arrests without
warrant. United States v. Di Re, 332 U.S. 581.
Johnson v. United States, 333 U.S. 10, 15 & n. 5
(1948)(citations omitted).
In Ker v. California, 374 U.S. 23 (1963), the
Court confronted the question of whether a state
officer's warrantless search of Ker’s apartment was
justifiable under the Fourth Amendment as a search
incident to a “lawful arrest.” To answer this
question, the Court first determined that probable
cause existed, and then looked to state law to flesh
out the definition of what constituted a reasonable
arrest:
This Court, in cases under the Fourth
Amendment, has long recognized that the
lawfulness of arrests for federal offenses is to
be determined by reference to state law insofar
as it is not violative of the Federal
Constitution. Miller v. United States, [357 U.S.
301 (1958)]; United States v. Di Re, 332 US.
581 (1948); Johnson v. United States, 333 U.S.
10, 15, n. 5 (1948). A fortiori, the lawfulness of
these arrests by state officers for state offenses
is to be determined by California law.
Ker, 374 U.S. at 37.4
4 Ker assumed that federal arrests would also be judged by the
standards of state law because in United States v. Di Re, 332
7
The Court explained its focus on state law by
observing that Mapp v. Ohio, 367 U.S. 643 (1961),
had not
precluded [the states] from developing
workable rules governing arrests, searches
and seizures to meet “the practical demands of
effective criminal investigation and law
enforcement” in the States, provided that
those rules do not violate the constitutional
proscription of unreasonable searches and
seizures and the concomitant command that
evidence so seized is inadmissible against one
who has standing to complain. See Jones uv.
United States, 362 U.S. 257 (1960). Such a
standard implies no derogation of uniformity
in applying federal constitutional guarantees
U.S. 581, 588-95 (1948), the Court had asked whether the
arrest in that case, by a state officer for a federal offense, was
consistent with the law of the state. “{I]n absence of an
applicable federal statute the law of the state where an arrest
without warrant takes place determines its validity.” Jd. at
589. Deciding that an arrest for a federal offense is invalid
because it violates the law of the state where it took place
would indeed create a problem of lack of uniformity. That
aspect of Di Re has become outdated. Congress has
nationalized the law of arrest for federal officers. No such non-
uniformity problem exists in applying the law of each state only
to its own officers.
The Di Re Court also noted that the tradition of deferring to
state laws governing arrest was one of long standing: “By one
of the earliest acts of Congress [Act of September 24, 1789 (Ch.
20, § 33, 1 Stat. 91), the principle of which is still retained, the
arrest by judicial process for a federal offense must be
‘agreeably to the usual mode of process against offenders in
such state.” 332 U.S. at 589.
but is only a recognition that conditions and
circumstances vary just as do investigative
and enforcement techniques.
Ker, 374 U.S. at 34.5 The Court went on to hold that
the arrest in that case was consistent with both state
and federal law.
Similarly, in Welsh v. Wisconsin, 466 U.S.
740, 754 (1984) the Court held that no exigent
circumstances existed to excuse obtaining a warrant
before conducting a home arrest for an offense
defined by state law as minor:
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. See Wis.
Stat. § 346.65(2) (1975); § 346.65(2)(a) (Supp.
1983-1984). . . . This is the best indication of
the State's interest in precipitating an arrest,
and is one that can be easily identified both by
the courts and by officers faced with a decision
to arrest.
See also Hiibel v. Sixth Judicial Dist. Court, 542
U.S. 177, 187 (2004) (arrest for refusal to provide
name did not violate the Fourth Amendment because
the source of the obligation was state law).
5 Justice Brennan, in dissent, argued that the method of entry
in Ker should have been considered unreasonable under the
Fourth Amendment even if it was permissible under state law,
a position the Court ultimately adopted in Wilson v. Arkansas,
514 U.S. 927 (1995). Ker, 374 U.S. at 46-62. Brennan also
questioned the plurality’s conclusion that state law had not
actually been violated, id. at 62-63. But he did not disagree
that the state law should provide at least a floor for protection
against unreasonable arrests.
In Atwater v. City of Lago Vista, 532 U.S. 318
(2001), the Court considered whether to interpret the
Fourth Amendment itself as rendering arrests for
minor offenses unreasonable. The Court decided not
to get into the business of formulating nationalized
limitations to govern local law enforcement. Id. at
347. The Court did express concern that the arrest of
Gail Atwater, a law-abiding citizen whose only
offense was a failure to use seat belts, seemed
unnecessary and rather arbitrary, id. at 346 (“[iJf we
were to derive a rule exclusively to address the
uncontested facts of this case, Atwater might well
prevail”), but concluded that it was best to allow the
states to structure their own laws of arrest to
preclude custodial arrest for minor offenses if they
wished to do so, id. at 351-53.
The Texas law at issue in Atwater clearly
authorized arrest for all violations of the traffic code.
Id. at 323. The Virginia legislature just as clearly
did not. The Court in this case is not being asked to
override a decision resting in_ local policy
considerations and conditions, but to respect the
state’s own choice.®
Petitioner and the United States both cite
dicta from some cases remarking that probable cause
is sufficient to make an arrest reasonable, see
Petitioner's Brief at 14-15, United States Brief at 7-9.
6 The ACLI' argued in Atwater that the Fourth Amendment
itself bars arrest for minor offenses regardless of what state law
may authorize. See Brief Amicus Curiae of the ACLU, et. al.,
Supporting Petitioner in Atwater v. City of Lago Vista, 532 U.S.
318 (2000)(No. 99-1408). We continue to believe that Atwater
was wrongly decided, although we are not pressing that
argument here.
10
In no case they cite did the Court conclude that an
arrest was constitutionally valid despite being
invalid under state law.’
Fourth Amendment law will never yield
consistent results throughout the states because, at
an absolute minimum, the Fourth Amendment
requires that an arrest be based on probable cause to
believe that an offense has been or is being
committed. See Maryland v. Pringle, 540 U.S. 366,
370 (2003). State legislatures decide how to define
offenses; federal constitutional law then
superimposes the probable cause requirement as one
aspect of what is necessary to render an arrest
“reasonable.”
This reliance on state law has not posed any
problems. Because officers in each state refer to
their own unique state law in deciding when an
arrest is permissible, there is no likelihood of
confusion. Similarly, reviewing courts have not had
any difficulty looking to state law to determine
whether proba! le cause existed to believe that a
7 In Cooper v. California, 386 U.S. 58, 61 (1967) and in Elkins v.
United States, 364 U.S. 206, 223-24 (1960), the Court held that
an otherwise unconstitutional arrest did not become
constitutional because a state law purported to authorize it.
Although a state may add to the Fourth Amendment
requirements, it obviously cannot reduce those requirements. In
Whren v. United States, 517 U.S. 806 (1996), the question was
whether a traffic stop the D.C. Code defined as permissible
became unconstitutional because the officer conducting the stop
was not wearing a uniform. Jd. at 815. The D.C. Code had not
declared that stops or even arrests for such traffic offenses were
unreasonable; it only sought to regulate the relative jurisdiction
of plainclothes officers.
state offense was actually being committed. See, e.g.,
Devenpeck v. Alford, 543 U.S. 146 (2004) (providing
an example of how careful review of state law is
necessary to determine the validity of an arrest).
The Fourth Amendment does not permit
officers to disregard the elements of a criminal
offense as defined by their own state laws when
making an arrest. If an officer does arrest someone
without having probable cause to believe that an
actual offense was committed, the appropriate
sanction (including the exclusion of evidence) is
determined under the federal Constitution. There is
no reason why the result should be any different
when officers disregard their state law on the related
issue of whether an arrest for the defined offense is
authorized. ®
8 Petitioner's parade of horribles raises the specter of federal
courts suppressing evidence because an officer has failed to
follow a technical state law requiring the wearing of a badge or
imposing a geographical limitation on jurisdiction. Petitioner's
brief at 40-43. The discussion of Whren, supra, suggests that
the Court will have no difficulty in finding arrests reasonable
where state law regulates what an arresting officer should
wear, as opposed to embodying a fundamental decision about
whether or not any given offense is arrestable. The chief case
petitioner cites as an example of the federal courts’ alleged
inability to distinguish between trivial and non-trivial state
laws, Sandin v. Conner, 515 U.S. 472 (1995), is actually an
example of the Court distinguishing the “atypical and
significant” deprivations of liberty a prisoner experiences from
de minimis deprivations.
12
B. Relying On State Law To Determine
When An Arrest Is Reasonable Is
Consistent With The Interpretation of
Many Other Bill Of Rights Guarantees.
There is nothing unique or surprising about
recognizing that the reasonableness of an arrest
under the Fourth Amendment turns in part on state
law. To the contrary, the scope of many of the
procedural protections provided by the Bill of Rights
varies from state to state depending on the unique
context of each state’s law. It is consistent with
interpretations of rights under the First, Fifth, Sixth,
and Fourteenth Amendments to treat state law as
providing a baseline for determining when an arrest
is reasonable, and then to treat federal law as
determining the procedural consequences of each
state’s choice.
The classic example of this two-step
interpretive approach is procedural due process
doctrine. In Board of Regents v. Roth, 408 U.S. at
576-78, the Court explained that plaintiff Roth had
no right to a hearing or any other form of due process
in connection with losing his job at a state university
unless he was deprived of liberty or property within
the meaning of the Due Process Clause. The Court
held that the first step to take in answering that
question was to look at state law. If state law limited
the state’s discretion to fire Roth, Roth would be
deprived of a state-created entitlement by that
decision and hence would fall within the ambit of the
Due Process Clause. What process he was due
would then be decided as a matter of federal
constitutional law. See Cleveland Bd. of Educ. v.
13
Loudermill, 470 U.S. 532, 538-41 (1985); Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976).
Justices Brennan and Marshall had argued
that the Court should shoulder the burden of
deciding what values the Due Process Clause
protects, and should therefore require that any state
decision inflicting a “grievous loss” on an individual
be tested against federal procedural norms of due
process. See Roth, 408 U.S. at 587-92 (Marshall, J.,
dissenting); Goldberg v. Kelly, 397 U.S. 254 (1970)
(Brennan, J.). Other Justices had advocated a due
process balancing test that also would have involved
the Court in judicial decision-making about the
values due process should protect. See, e.g., Joint
Anti-Fascist Refugee Committee v. McGrath, 341 US
123, 161-63 (1951) (Frankfurter, J., concurring).
The Roth Court rejected those approaches.
But it also rejected the idea that the #tates should be
left to decide what process is necessary to protect
those rights the state itself has acknowledged. Then-
Justice Rehnquist, for example, maintained that
state legislatures should retain the prerogative to
decide for themselves what sort of procedure should
attach to any particular decision because the states
may choose whether to create an entitlement in the
first place. Arnett v. Kennedy, 416 U.S. 134, 151-55
(1974). Instead of adopting the Rehnquist “bitter
with the sweet” theory, the Court adopted a hybrid
rights approach, splitting the decisions about how
rights are created and protected. Once state policy
makers have made the threshold decision that an
entitlement deserves respect, the Due Process Clause
then requires the state to follow through on its own
normative judgments by providing procedures
14
sufficient to meet the standards set by federal
constitutional law. Mathews, supra.
Although this hybrid rights approach is best
known in the procedural due process context, the
Court has adopted the same technique in many other
contexts to decide when constitutional protections
apply. The Fifth Amendment’s Double Jeopardy
Clause, for example, prohibits being put twice in
jeopardy for the same “offense,” but protection
against multiple prosecutions hinges on _ each
legislature’s definition of what constitutes an
“offense.” Under Blockburger v. United States, 284
U.S. 299, 304 (1932), two offenses are not the “same”
if each is defined as requiring proof of a fact the
other does not. It is up to the legislature to decide
how to define its offenses. Thus, here too, state law
provides the trigger for the constitutional right, but
then must yield to the consequences required by the
federal constitutional provision being interpreted.
The Fifth Amendment Takings Clause,
providing that private “property” may not be taken
for public use without just compensation, likewise
relies on state law to determine what constitutes
“property” entitled to constitutional protection. See,
e.g., Phillips v. Washington Legal Found., 524 U.S.
156, 164 (1998) (“[b]ecause the Constitution protects
rather than creates property interests, the existence
of a property interest is determined by reference to
‘existing rules or understandings that stem from an
independent source such as state law’ (quoting Roth,
408 U.S. at 577); Webb’s Fabulous Pharmacies v.
Beckwith, 449 U.S. 155, 164-65 (1980) (following the
Roth approach in deciding that the interest in
question was a form of property). See Thomas W.
15
Merrill, The Landscape of Constitutional Property, 86
VA. L. REV. 885, 886-88, 934-42 (2000).
Sixth Amendment rights are contingent on
state legislative policy decisions, as well. Decisions
regarding the temporal and substantive scope of the
Sixth Amendment right to counsel also look to state
law. The right to counsel attaches once formal
judicial] proceedings have begun, and the Court has
historically treated state law as a minimum baseline
in making that decision. The point at which the
police must notify counsel of a lineup, see Kirby v.
Illinois, 406 U.S. 682, 689 (1972); Moore v. Illinois,
434 U.S. 220 (1977), or must stop trying to elicit
incriminating information in the absence of counsel,
see Massiah v. United States, 377 U.S. 201 (1964),
Brewer v. Wiiliams, 430 U.S. 387, 398 (1977),
therefore can vary from state to state.9
Whether the Sixth Amendment provides a
right te assigned counsel also depends on decisions
made by the state. Any legislature can choose to
avoid the provision of assigned counsel altogether by
making a particular offense punishable only by fine,
or to create the conditions under which an indigent
defendant will be entitled to assigned counsel by
% Rothgery v. Gillespie County, 491 F.3d 293 (5th Cir. 2007),
cert. granted, 07-440 (Dec. 3, 2007), raises the question of
whether the Sixth Amendment poses an additiona) limitation
on the state’s ability to define when the right to counsel begins.
No matter what the Court decides in Rothgery, it will still be
true that the state law establishes a minimum baseline of
protection. Sometimes, as in the Fourth Amendment area, the
Court concludes that the state's minimum is not sufficient -- a
state may not, for example, decide to create a law of arrest
eliminating the probable cause requirement.
16
providing for punishment by incarceration. See
Argersinger v. Hamlin, 407 U.S. 25 (1972). The
Sixth Amendment right to counsel only requires the
state to spend money on provision of defense counsel
if the state has chosen to impose a punishment so
serious that the provision of counsel is deemed too
important to leave to the vagaries of state politics.
Similarly, the Sixth Amendment right to trial
by jury springs into being only if the jurisdiction's
legislature has decided that the offense in question
should be punishable by incarceration of six months
or more. See Baldwin v. New York, 399 U.S. 66, 68-
69 (1970). In all of these contexts, state autonomy is
respected, but not to the extent of eviscerating the
Constitution’s procedural protections.
The Court has also employed this two-step
approach in defining the “liberty” entitlements of
prisoners and others. See Meachum v. Fano, 427
U.S. 215 (1976).!° Inmates seeking parole in New
York, for example, may not have a right to a parole
hearing, see Boothe v. Hammock, 605 F.2d 661 (2d
Cir. 1979), while inmates in Nebraska will (see
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 11-12 (1979). That difference in
constitutional protection is entirely due to the fact
that New York policy makers have made different
0 For a fuller explanation of the theoretical basis for the hybrid
rights approach in the procedural due process area, see Susan
N. Herman, The New Liberty: The Procedural Due Process
Rights of Prisoners and Others Under the Burger Court, 59
N.Y.U.L. REV. 482, 543-54 (1984).
17
decisions than Nebraska’s, and those decisions shape
a prisoner's legitimate expectation of release.!!
Recognizing that a state’s decision about what
constitutes an arrestable offense can have Fourth
Amendment consequences is consistent with this
broader jurisprudence. Justices Brennan and
Marshal) had argued that defining the scope of the
Fourth Amendment should require the Court to
identify the norms and values the Amendment
serves, see Smith v. Maryland, 442 U.S. 735, 750
(1979) (Marshall, J., dissenting); United States v.
Miller, 425 U.S. 435, 448, 451 (1976) (Brennan. J.,
dissenting). That task, which the Court disavowed
in Atwater, is comparable to deciding what
constitutes a “grievous loss,” the approach Brennan
and Marshall had advocated in the due process area.
But despite the lessons of the procedural due process
cases, petitioner invites the Court to go to the other
extreme and simply leave it to the states to decide
whether the search incident to arrest doctrine should
'! Even in the First Amendment area, the Court has on occasion
used a two-stage inquiry to set levels of constitutional
protection contingent upon state policymakers’ decisions. See,
e.g., Perry Education Ass'n v. Perry Local Educators’ Ass'n, 460
U.S. 37, 45-46 (1983), where the Court explained that it first
looks to see whether or not “by long tradition or by government
fiat” a place has become a public forum devoted to assembly and
debate. Only after answering that question does the Court
decide what type of First Amendment protections to afford
speakers in that place. See Robert C. Post, Between Governance
and Management: The History and Theory of the Public Forum,
34 UCLA L. REV. 1713, 1805-24 (1987) (discussing whether the
public forum doctrine should ideally make constitutional
principles rest on social practices or vice versa).
apply to officers who use the arrest power at their
own whim, even if in flagrant defiance of state law,
or to restrict Fourth Amendment analysis to asking
at most the minimal question of whether probable
cause existed. Petitioner's Brief at 19. This Court
should reject that approach here, just as it did in the
procedural due process cases. !2
Petitioner paints a dire picture of befuddled
federal courts grappling with the complexities and
confusion of state law, or taking on the role of
instructing state officials on the meaning of their
own law. Petitioner's Brief at 20. What petitioner
describes as a uniquely daunting inquiry, however, is
in reality routine in numerous constitutional
contexts. Petitioner further assumes that whoever
creates a right should also have the final decision
about the procedures and remedies surrounding that
right. Jd. at 20-26. That assumption, like the firmly
rejected “bitter with the sweet” approach of Arnett v.
Kennedy, supra, is not an accurate reflection of the
Supreme Court’s constitutional law in any of the
areas of constitutional procedure described above. A
state may no more decide to authorize successive
trials for two identical offenses it has created than it
may truncate due process protections attaching to a
state-created entitlement.
12 The due process cases reject any notion that the Court
should minimize its role in deciding what process is due by, for
example, setting aside state procedural decisions only if they
are shocking to the conscience. Deciding that an arrest is
reasonable simply because it is based on probable cause would
limit the scope of the Fourth Amendment in a similarly
inappropriate fashion.
19
In this case, Virginia decided not to confer
upon its. officers discretionary arrest power
constrained only by the probable cause requirement.
Virginia’s decision to define what happened to David
Moore in this case as an unreasonable search and
seizure triggers Fourth Amendment protections, just
as a state’s decision to create an entitlement triggers
due process protections.
Respondent makes much of the fact that the
Court has previously held that state laws do not
always generate expectations of privacy under the
Fourth Amendment. Petitioner's Brief at 18.
California v. Greenwood, 486 U.S. 35 (1988), the
principal case on which petitioner relies for this
proposition, is readily distinguishable. The state law
at issue in Greenwood was a state constitvtional
right of privacy applicable to the general public, not a
law circumscribing the authority of state law
enforcement officers. The Supreme Court concluded
that the California courts did not create a “search”
within the meaning of the Fourth Amendment by
holding that individuals have a state constitutional
right of privacy in their trash. Id. at 43-44. The
Court has always held that whether or not
something is a “search” within the meaning of the
Fourth Amendment depends on nationwide “societal
expectations,” under the Katz test. Katz v. United
States, 389 U.S. 347 (1967). The Virginia statute in
this case, by way of contrast, addresses what is
already clearly a Fourth Amendment seizure — an
arrest — and a Fourth Amendment search of a person
and a home. As the cases in the previous section
demonstrate, the Court has historically embraced the
idea that a determination of when an arrest is
20
reasonable, reflected in the state law of arrest, is to
be treated differently from the question of whether
the Fourth Amendment applies at all.
Il. ABSENT A STATE LAW LIMITATION,
CURRENT FOURTH AMENDMENT LAW
CREATES INCENTIVES FOR UNLAWFUL
ARRESTS AND UNJUSTIFIED SEARCHES
WITHOUT IMPOSING COUNTERVAILING
LIMITS
Because current Fourth Amendment doctrine
makes custodial arrest the necessary predicate for an
automatic warrantless search, see Knowles v. lowa,
525 U.S. 113 (1998) (declaring a search incident to
arrest impermissible if a citation is issued), officers
are invited to defy their state law of arrest if they
wish to conduct a search but have no probable cause
to justify that search and no lawful authority to
arrest. Beyond reliance on state law, current
constitutional doctrine imposes no limitation on an
officer’s discretion to arrest except for the existence
of probable cause to believe that an offense, no
matter how trivial, has been committed. The Court
has created a number of bright line rules, each
initially designed to address an exigency, which in
combination have created a vast power to conduct
searches without either a warrant or probable cause
to search. If the state law of arrest does not provide
some limit to that discretion beyond the minimal
probable cause for arrest requirement, there will be
no meaningful limit.
21
A. The Search Incident to Arrest Doctrine
Invites Warrantless Searches Even Where
No Exigency Exists.
Robinson v. California, 414 U.S. 218, 235
(1973), correctly observed that searches incident to
arrest are sometimes justified by exigency — either to
protect the arresting office or to prevent concealment
or destruction of evidence. Responding to the need to
conduct a warrantless search in some cases, the
Court conferred a broad power to search incident to
arrest in all cases, even in circumstances where
there is little likelihood of danger and no likelihood
that evidence will be concealed or destroyed.
Robinson ruled that authority to search an arrestee’s
person can be exercised even where an offense, like a
traffic offense, does not generate any prospect that
evidence might exist. New York v. Belton, 453 U.S.
454 (1981), then expanded the search incident to
arrest authority respecting vehicles, affording a
broad bright line authority to conduct warrantless
searches of vehicles in the absence of probable cause
to search, even in circumstances where an individual
is in handcuffs and removed from the vicinity of the
vehicle and thus poses no danger. Thornton uv.
United States, 541 U.S. 615 (2004), further expanded
this automatic search authority to situations where
the person arrested was not even in the car at the
time of arrest.
It is no wonder that Justice Scalia, in
Thornton, urged the Court to return to the principle
that if officers wish to search the car of a person who
has been arrested, in circumstances where no actual
exigency exists, they should be required to
demonstrate probable cause to believe that evidence
22
might be found. “The fact of prior lawful arrest
distinguishes the arrestee from society at large, and
distinguishes a search for evidence of his crime from
general rummaging,” id. at 630 (emphasis in
original), but “[iJn the context of a general evidence-
gathering search, the state interests that might
justify any overbreadth are far less compelling.” /d.
at 632.
The search incident to arrest in this case is
virtually indistinguishable from general rummaging.
Moore committed the traffic offense of driving with a
suspended license. His infraction generated no
prospect of finding evidence of the crime for which he
was arrested, and did not seem to lead the officers,
who forgot to search him at the scene of the arrest, to
believe that he was dangerous. Moore’s commission
of this traffic offense could not, under Knowles,
supra, have led to an incident search if the officers
had obeyed their state law and issued a summons.
Petitioner argues that Knowles is distinguishable
because an arrest took place here, despite the fact
that the arrest was illegal. Allowing officers to get
around Knowles so easily would ratify the
“prerogative”! the officers in this case claimed -- to
bootstrap their way into what would have been an
overbroad search power in any event. There is no
reason to allow officers who conduct illegal arrests to
take advantage of their own misconduct by
conducting searches that, even if the arrest had been
legal, would not have addressed an actual exigency.
The cynicism and illegality of the officers’ conduct
here highlights the need for some meaningful
13 See Moore v. Commonwealth, 47 Va. App. 55, 60, 622 S.E.2d
253, 256 (Ct. App. 2005) (en banc).
23
implementation of the Fourth Amendment’s central
purpose of constraining arbitrary or discriminatory
arrests and searches.
Just last Term, the Court unanimously
decided that a passenger is “seized” within the
meaning of the Fourth Amendment when the car in
which the passenger is traveling is _ stopped.
Brendlin v. California, 127 S. Ct. 2400 (2007). The
state conceded that the officers in question had
violated state law by stopping the car in which
Brendlin was traveling. Jd. at 2404 n.2. In its
opinion, the Court recognized the importance of
interpreting the Fourth Amendment in a manner
that avoids creating perverse incentives for overly
zealous officers, remarking that a contrary rule
would invite officers to stop cars illegally. Jd. at
2410. The same concern applies with equal force
here.
B. The Lack Of Either Subjective Or
Objective Limitations On The Arrest
Power Invites Unreasonable Arrests And
Searches.
The Court has already rejected two of three
possibilities for limitations on the arrest power,
either of which would have had the effect of
circumscribing the search incident to arrest
authority in circumstances where no exigency exists.
In Whren, supra, the Court declined to hold that
officers act unreasonably if they use enforcement of
minor traffic laws as a pretext to conduct a search
they could not otherwise have conducted. After
rejecting the idea that the Fourth Amendment might
impose some subjective limitation on an officer’s
power to arrest, the Court went on to reject the
24
imposition of an objective limitation as well. In
Atwater, supra, the Court ruled that an arrest for a
minor, fine-only offense is not inherently
unreasonable within the meaning of the Fourth
Amendment, freeing officers to conduct arrests in a
vast array of circumstances and then conduct
warrantless searches incident to arrest.'4
The combined effect of the unlimited bright
line rules the Court has created in this series of cases
has substantially diluted core Fourth Amendment
safeguards:
"I{I]n our search for clarity, we have now
abandoned our constitutional moorings and
floated to a place where the law approves of
purely exploratory searches of vehicles during
which officers with no definite objective or
reason for the search are allowed to rummage
around in a car to see what they might find.” I
entirely agree with that assessment.
Thornton, 541 U.S. at 628-29 (Scalia, J., concurring)
(quoting United States v. McLaughlin, 170 F.3d 889,
894 (9th Cir. 1999) (Trott, J., concurring). The Court
has reached this unfortunate position by piling
bright line rules on each other without attending to
the combined effect of those rules. See Donald A.
Dripps, The Fourth Amendment and the Fallacy of
'4 The decision in Atwater has been criticized as affording too
much unconstrained discretion to arrest. See, e.g., 3 Wayne R.
LaFave, SEARCH & SEIZURE 5.1 (Supp. 2004); Richard S. Frase,
What Were They Thinking? Fourth Amendment
Unreasonableness in Atwater v. City of Lago Vista, 71 FORD. L.
REV. 329 (2002).
25
Composition: Determinacy versus Legitimacy in a
Regime of Bright-Line Rules, 74 Miss. L.J. 341, 392-
404 (2004). Dripps describes Whren, Atwater, and
Belton as together creating an “iron triangle” where
police can arrest and search at whim. ZJd. at 392-404.
The facts here show how easily officers can
maneuver within the “iron triangle” and how they
can capitalize on a pretextual arrest in order to
search not only the person arrested and his vehicle,
but even the person’s home, by inveigling consent to
search -- all without either probable cause to search
or a warrant. Petitioner defends the “constitutional
propriety” of the illegal arrest and unjustified search
in this case, see Petitioner’s Brief at 10, on the
ground that they happen to fall within the iron
triangle. As Justice Scalia noted in Thornton, 541
U.S. at 627, however, such a search “is not the
Government's right; it is an exception — justified by
necessity — to a rule that would otherwise render the
search unlawful.” Justice Scalia, like the unanimous
Court in Brendlin, supra, recognized the continuing
truth of an earlier observation by Justice Robert
Jackson: “We must remember that the extent of any
privilege of search and seizure without warrant
which we sustain, the officers interpret and apply
themselves and will push to the limit.” Brinegar v.
United States, 338 U.S. 160, 182 (1949) (dissenting).
26
Ill. RELYING ON STATE LAW TO DEFINE
WHEN AN ARREST IS REASONABLE
FOR FOURTH AMENDMENT PURPOSES
IS NECESSARY TO PREVENT
ARBITRARY AND DISCRIMINATORY
ARRESTS AND INCIDENT SEARCHES
This case demonstrates how easy it is for an
officer to subvert both state law and the warrant
requirement in order to rummage for drugs. The
expansive search incident to arrest authority has
become the modern equivalent of the general
warrant, allowing the police to search at will. See
Entick v. Carrington, 19 How. St. Tr. 1029, 1031,
1063-744 (C.P. 1765) (disapproving a search of
plaintiffs private papers under a general warrant,
despite the arrest of the plaintiff). This situation
surely would have horrified the framers of the
Fourth Amendment.
[The framers] did not perceive the warrantless
officer as being capable of posing a significant
threat to the security of person or house. That
was because the ex officio authority of the
peace officer was still meager in 1789.
Warrant authority was the potent source of
arrest and search authority. As a result, the
Framers expected that warrants would be
used.
Thomas Y. Davies, Recovering the Original Fourth
Amendment, 98 MICH. L. REV. 547, 552 (1999).
“(T]he common law did not provide officers with
discretionary search and seizure authority.” Id. at
619.
27
A. Encouraging Officers To Ignore
Limitations Imposed By Their State Law
Of Arrest Invites Arbitrary,
Discriminatory, And Ineffective Law
Enforcement.
What could be more arbitrary than an arrest
prohibited by state law? If the Fourth Amendment
endorses any arrest based on probable cause,
regardless of the arrest’s illegality under state law,
officers will have almost boundless discretion to
decide whom to arrest and therefore search. The
facts in this case demonstrate that some officers will
disregard state law in exercising that discretion. The
Court in Brendlin, supra, also confronted officers
who were willing to violate state law in order to stop
a car, and recognized that it would be a mistake to
interpret the Fourth Amendment in a manner that
condones or invites such illegal conduct. 127 S.Ct. at
2410.
If officers can arrest and search almost on
whim, some officers will inevitably use that authority
to conduct arbitrary arrests, or to discriminate on the
basis of race or some other impermissible factor.
There are, unfortunately, many cases showcasing
officers who were willing to take advantage of this
license to perform what seem to. have been arbitrary
and possibly discriminatory arrests. See, e.g., Fisher
v. Washington Met. Area Transit Auth., 690 F.2d
1133 (4th Cir. 1982) (arrest for eating on the
subway); Thomas v. Florida, 614 So.2d 468 (Fla.
1993) (arrest for failure to have a bell or gong on
one’s bicycle); United States v. Herring, 35 F. Supp.
2d 1253 (D. Or. 1999) (arrest for littering); Barnett v.
28
United States, 525 A.2d 197 (D.C. Ct. App. 1987)
(arrest for “walking as to create a hazard”).
The probable cause requirement is a negligible
hurdle and an inadequate deterrent to arrests
pronibited by state law. Petitioner prominently cites
Fourth Amendment authority Wayne LaFave for the
proposition that nothing more than probable cause is
required for an arrest to be reasonable. Petitioner's
Brief at 29. In the section cited, however, LaFave
was merely reporting the Court's. dicta.'5
Expressing his own view elsewhere, LaFave has
forcefully argued that probable cause should not be
the only Fourth Amendment requirement for arrest
because it does not provide sufficient guidance to
officers. “[P]robable cause as to a minor traffic
violation can be so easily come by that its existence
provides no general assurance against arbitrary
police action,” Wayne R. LaFave, The “Routine
Traffic Stop” from Start to Finish: Too Much
“Routine,” Not Enough Fourth Amendment, 102
MICH. L. REV. 1843, 1854 (2004). Sve also id. at
1852-53. If probable cause is the only prerequisite
to arrest, virtually anyone who drives can be stopped
(for changing lanes without signaling, exceeding the
speed limit, etc.). Pedestrians can be arrested for
jaywalking, mass transportation riders for eating or
'* The Court has also frequently said that an arrest not
complying with the state law of arrest would be invalid. See
Johnson, supra (noncompliance with presence requirement);
Ker, supra (noncompliance with knock and arrest requirement).
The Court's recent dicta to the opposite effect have not been the
basis for holdings, and so the question petitioner describes as
resolved is in fact being squarely presented to the Court for the
first time.
29
putting a package on the seat, and cyclists for failing
to have a “bell or gong” on their bicycle, all so that
officers can rummage for drugs. The cases above
describing people who have actually been arrested
and even searched for such trivial offenses, see, e.g., .
Thomas v. Florida, supra, show that probable cause
is indeed a very low bar.
The Atwater decision declined to raise that bar
because the Court thought that arbitrary arrests
were unlikely to occur very often. The Court reached
that conclusion by speculating that officers would not
want to waste resources and time by taking people
into custody unnecessarily. Atwater, 532 U.S. at 352.
These pragmatic considerations do not, however,
prevent an officer from conducting an arbitrary
arrest in order to search and then simply releasing
the individual or issuing a summons if the search
comes up empty. Arbitrary custodial arrests, as
happened to Gail Atwater, may be rarer than
arbitrary or discriminatory searches incident to
arrest.
Substantial empirical evidence also strongly
suggests that allowing virtually unconstrained police
discretion to decide whom to arrest and search may
disproportionately affect minorities. In a national
survey published in 2006, the United States
Department of Justice found that African-Americans
were nearly three times as likely and Hispanics more
than twice as likely as white motorists to be
physically searched or to have their vehicles
searched when their cars were stopped.'® See also 1
16 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
CHARACTERISTICS OF DRIVERS STOPPED BY POLICE 2002 5 (2006),
available at http://www.ojp.usdoj/bjs/pub/pdf/cdsp02.pdf.
30
Wayne R. LaFave, SEARCH & SEIZURE 1.4 n. 77.36
(Supp. 2004). Amici do not have data showing how
extensive a problem this might be within the state of
Virginia because the Virginia legislature has
repeatedly voted down bills that would have
mandated collecting statistics on racial profiling.'’ It
is clear, however, that “[flishing for drug couriers in
the immense stream of cars on interstate highways is
a hopeless strategy for eliminating drug trafficking;
it probably has no impact whatsoever on drug
markets.” Samuel R. Gross & Debra Livingston,
Racial Profiling Under Attack, 102 COLUM. L. REV.
1413, 1431 (2002). Furthermore, studies consistently
find that there is no difference in “hit rates” —
contraband discovery rates — when officers use their
discretion to search in a racially disparate manner.!®
Thus, there is little benefit to law enforcement
gained by allowing state officers to evade the
limitations of their state law of arrest.
B. Virginia’s State Constitution Does Not
Provide Any Independent Limit On
Police Discretion To Arrest.
State constitutional law does not provide an
adequate alternative to Fourth Amendment
protection. In California v. Greenwood, 486 U.S. at
African Americans were searched during 10.2 % of stops;
Hispanics 11.4%, and whites 3.5%.
17 See RACIAL PROFILING DATA COLLECTION RESOURCE CENTER
AT NORTHEASTERN UNIVERSITY, _ http://www.racialprofiling
analysis.neu.edu/background/jurisdictions.php?state=VA (de-
scribing the failure of four bills, HB 157 (2006), HB 2735 (2005),
SB 225 (2004), and SB 280 (2002)).
18 See BUREAU OF JUSTICE STATISTICS, supra note 16, at 6.
3
43-44, after declining to find a government
investigation to be a search within the meaning of
the Fourth Amendment, the Court suggested that
individual states could use their own constitutions to
impose more stringent constraints on their state
police. This case provides a striking example of how
readily the Fourth Amendment’s floor can become its
ceiling.!9
The Virginia Constitution does not contain a
provision like the Fourth Amendment, prohibiting
unreasonable searches and seizures. The Virginia
Constitution only provides: “That general warrants,
whereby an officer or messenger may be commanded
to search suspected places without evidence of a fact
committed, or to seize any person or persons not
named, or whose offense is not particularly described
and supported by evidence, are grievous and
oppressive, and ought not to be granted.” VIRGINIA
CONSTITUTION, article I, § 10. The framers of the
Virginia Constitution evidently did not foresee a
world in which exceptions to the warrant
'2 In Whren, the Court suggested the possibility of an equal
protection challenge to address discriminatory searches or
seizures. 517 U.S. at 813. That possibility has turned out to be
more theoretical than real. A plaintiff cannot successfully
challenge a pattern of discriminatory arrests under the Equal
Protection Clause without meeting the very demanding burden
of proving intentional racial] discrimination. For this reason,
equal protection challenges will “almost always fail.” David A.
Sklansky, Traffic Stops, Minority Motorists, and the Future of
the Fourth Amendment, 1997 Sup. CT. REV. 271, 326; see also
LaFave, The “Routine Traffic Stop,” 102 MICH. L. REV. at 1860-
61. For a dramatic example of how easily a plaintiffs
discrimination claim can be dismissed despite substantial
evidence of discriminatory enforcement, see Chavez v. Ill. State
Police, 251 F.3d 612 (7th Cir. 2001).
32
requirement would proliferate. They acted against a
background where law severely limited warrantless
arrest and search authority and so they tried to
constrain legislatures from using general warrants to
authorize conduct that would not otherwise have
been acceptable, on the assumption that the common
law would prevent arbitrary warrantless searches
and seizures. See Davies, supra, at 619-24.
Under the duress of this constitutional
language and history, the Virginia courts have ruled
that state constitutional protections against
unreasonable searches and_ seizures “are
substantially the same as those contained in the
Fourth Amendment.” Lowe v. Commonwealth, 230
Va. 346, 348 n.1, 337 S.E.2d 273, 274 (1985)(quoting
I A. E. Dick Howard, Commentaries on _ the
Constitution of Virginia 182 (1974)). Thus, if the
Virginia state legislature provides limitations on
arrest but stops short of providing any meaningful
enforcement of those limits, the Virginia courts
cannot choose to exclude evidence under their state
Constitution. The only Constitution that can be
brought to bear on what the Virginia Supreme Court
obviously viewed as a serious problem is the United
States Constitution.
The Virginia state legislature and all of the
Justices of the state’s highest court agree that the
arrest in this case was unreasonable. The Virginia
legislature was willing to provide more constraints
on the state police than the federal Constitution
requires, but stopped short of providing a remedy to
make those constraints effectual — just as state law
might provide employees with entitlements to their
jobs but not to any meaningful procedures to protect
33
those entitlements. The framers of the Fourth
Amendment were concerned that legislatures would
authorize general warrants. They would not have
been relieved to learn that a legislature might go
halfway, imposing a constraiat on the ability of peace
officers to conduct arbitrary warrantless searches
and seizures, but leaving that prohibition toothless.
This Court uses the exclusionary rule, albeit
reluctantly, where its use is necessary to enforce
constitutional guarantees. Hudson v. Michigan, 547
U.S. 586 (2006); Mapp v. Ohio, supra. In this case,
those guarantees must be derived from state law and
must then be enforced by the Fourth Amendment, or
there will be no meaningful limits on warrantless
arrests or searches in the state of Virginia. All of the
members of the Virginia Supreme Court, who are
fully familiar with whatever alternative enforcement
opportunities exist under Virginia law, believed that
the exclusionary rule is necessary in this case. They
are right.
34
CONCLUSION
For the reasons stated above, the judgment of
the Virginia Supreme Court should be affirmed.
Respectfully submitted,
Susan N. Herman
Counsel of Record
250 Joralemon Street
Brooklyn, New York 11201
(718) 780-7945
Steven R. Shapiro
Emily Chiang
American Civil Liberties
Union Foundation
125 Broad Street
New York, N.Y. 10025
(212) 549-2500
Rebecca Glenberg
ACLU of Virginia Fdn.
530 E. Main St., Ste 310
Richmond, VA 23219
(804) 644-8022
Dated: December 10, 2007
35
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.