Amicus Curiae Brief — Virginia v. Moore

No. 06-1082

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

DAVID LEE MOORE,

Respondent.

On Writ of Certiorari to the

Supreme Court of Virginia ,

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF RESPONDENT

Pamela Harris

Co-chair, Amicus Committee

National Association of

Criminal Defense Lawyers

1625 I Street, N.W.

Washington D.C. 20006

(202) 383-5386

December 10, 2007

E. Joshua Rosenkranz

Counsel of Record

HELLER EHRMAN LLP

Times Square Tower

7 Times Square

New York, NY 10036

(212) 832-8300

Warrington S. Parker, Ill

Alexander M.R. Lyon

HELLER EHRMAN LLP

333 Bush Street

San Francisco, CA 94104

Counsel for Amicus Curiae

BEST AVAILABLE COPY

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ............ccccceeeees

SUMMARY OF ARGUMENT ..................--cccccsssssseresseees

TEE eiinnsetonistiviniiarnseneietansmnntnninmeemateninncenites

A. Common Law And Historical Practice

Have Influenced This Court’s

Interpretation Of The Fourth

Amendment’s “Reasonableness”

TTT csiiciscshiiiaiiindeiininendsiniidninmiaennsedmineninintseies

B. Under Common Law, There Is No Right

To Make A Warrantless Arrest For A

Misdemeanor Unless The Law

Affirmatively Deems The Offense An

PERETTI SIS

C. An Arrest For An Offense That Was Not

Arrestable Was Always Unreasonable

Even If There Was Probable Cause. ..................

IIT ctnrtenstenersentsenmnnieidintmmscapteninntimessenuntenions

3

5

11

-ii-

TABLE OF AUTHORITIES

CASES

Ashton v. Brown, 660 A.2d 447 (Md. 1995)........ 13, 15

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

STi il ivssincshstebisdediaesiiuntnapiaitiiciidiieadibbeingniimanbianeesi passim

Bad Elk v. U.S., 177 U.S. 529 (1900) .............00000000000 13

Brinegar v. United States, 338 U.S. 160 (1949) ....... 12

Brock v. Fordyce, 108 Mass. 520 (1871) ..............:000++ 9

Commonwealth v. Carey, 66 Mass. 246 (1853)....8, 10

Commonwealth v. Phelps, 209 Mass. 369 (1911) ..... 14

Commonwealth. v. Cheney, 141 Mass. 102

ERIE Sree nO en rea a 17

Cook v. Hastings, 150 Mich. 289 (1907)..............2+++- 14

Cook v. Nethercote, 172 Eng. Rep. 1443

EES SAS tek See 8

Coupey v. Henley, 2 Esp. 540 (K.B. 1797)...........:000+. 12

Coverstone v. Davies, 239 P.2d 876 (Cal. 1952)....... 18

DElia v. 58-35 Utopia Parkway Corp.,

A ED Sitetintttericioreeansetinis —_

Daering v. State, 49 Ind. 56 (1874).............:c0000 10, 14

Davenpeck v. Alford 543 U.S. 146 (2004) ................ 11

Davis v. Russell, 130 Eng. Rep. 1098

lariat 14,15

De Silva v. N.Y. Cent R. Co., 169 N.Y.S. 924

Se A: IL BI icciconincsnntnsnptsniiniiinaninnmminnreine 17

Delafoile v. New Jersey, 24 A. 557 (N.J. 1892)......... 10

Derecourt v. Corbishley, 119 Eng. Rep. 452

ESET SOCAN Ie Ae oe ne RE re eT 7,11

- iii -

Florida v. Wells, 495 U.S. 1 (19Q0)...........ccccsesseeseseeees 11

Fox v. Gaunt, 3 B. & Ad. 798 (K.B. 1832)............. 12,15

Gold v. Armer, 124 N.Y.S. 1069 (App. Div. 1910)..... 16

Goold v. Saunders, 194 N.W. 227 (lowa 1923) ....13, 14

Henry v. United States, 361 U.S. 98 (1959).............. 12

Huckle uv. Money, 95 Eng. Rep. 768 (K.B. 1763)....... 12

In re Thierry, 566 P.2d 610 (Cal. 1977)...........:ssccceeee 9

King v. Wilkes, 95 Eng. Rep. 737 (K.B. 1763)............+. 6

Lyons v. Worley, 4 P.2d 3 (Okla. 1931)................. 9, 16

Maryland v. Pringle, 540 U.S. 366 (2003)................ 11

McCullough v. Greenfield, 95 N.W. 532

SESE SS oe a 16

Michigan Dep't of State Police v. Sitz,

TTS a ee 12

Michigan v. DeFillippo, 443 U.S. 31 (1979).............. 12

Money v. Leach, 97 Eng. Rep. 1075 (K.B. 1765).......... 6

Palmer v. Me. Centrai Ry. Co., 42 A. 800

EDIE ae cee 17

Parke v. Fellman, 145 A.D. 836

Ses IU IN victnshcbetiidnitalancicinnnesiesounioncnnsennsens 17

Payton v. New York, 445 U.S. 573 (1980) .............. 3,4

Phillips v. Fadden, 125 Mass. 198 (1878)......... 9, 11, 18

Rafferty v. People, 69 Ml. 111 (1873)...........:sccceeceeeeeee 13

Regina v. Tooley, 92 Eng. Rep. 349 (K.B. 1710) ....7, 13

Reuck v. McGregor, 32 N.J.L. 70

Se I itdsich cesinpalelensncseinnsinseoncanomegenenneies 17

Rohan v. Sawin, 5 Cush. 281 (Mass. 1850)............... 14

Ross v. Leggett, 28 N.W. 695 (Mich. 1886)......... 15, 16

Samuel v. Payne, 99 Eng. Rep. 230 (K.B. 1780)....... 14

- iv -

South Dakota v. Opperman, 428 U.S. 364 (1976).... 12

State v. Hunter, 11 S.E. 366 (N.C. 1890)................6+. 16

Thamel v. Town of East Hartford,

373 F. Supp. 455 (D. Conn. 1974)...............0e000 13, 15

The Baltimore and Ohio Railroad Co. v. Cain,

BE El isscbiliniedecicciotiseetsidnczesensemesenses 11

United States v. Robinson, 414 U.S. 218 (1973) ....... 12

United States v. Watson, 423 U.S. 411

ESE SEES a ae Ne Oe 3, 4, 5, 10, 11, 15

Whren v. United States, 517 U.S. 806 (1996)............ 11

Wilson v. Arkansas, 514 U.S. 927 (1995)...........000+ 4,5

STATUTES

ee ee ial itiiitacticcinstctinniennenn 9

OTHER AUTHORITIES

10 Halsbury’s Laws of England (3d ed. 1955)........... 10

4 W. Blackstone, Commentaries 292 ...................2000 10

Thomas K. Clancy, The Fourth Amendment's

Concept of Reasonableness, 2004 Utah L. Rev.

i iiinsieeetiniatiieeaitiiicsensiniditiita acpsiemiaipnecienvtae 14

Note, Defiance of Unlawful Authority, 83 Harv. L.

| RIES SPE tee en eee 13

Anthony J. Sebok, Punitive Damages from Myth

to Theory, 92 lowa L. Rev. 957 (2007).............0+ 12

Thomas Y. Davies, The Fictional Character of

Law-and-Order Originalism: A Case Study of

the Distortion and Evasions of Framing-Era

Arrest Doctrine in Atwater v. Lago Vista, 37

Wake Forest L. Rev. 239 (2002)............ccceseseeeeeeeeees 6

Horace L. Wilgus, Arrest Without a Warrant,

22 Micha. L. REV. 541 (21984) ..cceceovccecvecesevesccosescscess 10

INTEREST OF THE AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit national bar

association that works in the interest of criminal

defense attorneys and their clients. NACDL was

founded to ensure justice and due process for

persons accused of crimes and to foster the

integrity, independence, and expertise of the

criminal defense profession. NACDL has more

than 12,500 members—joined by 90 affiliate

organizations with 35,000 members—including

criminal defense lawyers, U.S. military defense

counsel, law professors, and judges committed to

preserving fairness within America’s criminal

justice system. NACDL and its members have a

strong interest in ensuring that unauthorized and

unreasonable arrests not be used to justify

warrantless searches of criminal defendants.'!

' This amicus brief is filed with the consent of the

parties, who filed letters of consent with the Clerk of Court in

accordance with Supreme Court Rule 37.3(a) on October 16,

2007, and November 5, 2007. Pursuant to Supreme Court

Rule 37.6, the amicus submitting this brief and its counsel

represent that neither party to this case nor their counsel

authored this brief in whole or in part, and that no person

other than amicus paid for or made a monetary contribution

toward the preparation and submission of this brief.

SUMMARY OF ARGUMENT

Viewed through the lens of the common law,

which this Court has consulted in the past when

considering the protections afforded by the Fourth

Amendment, the arrest at issue in this case was

wholly unreasonable. It cannot be justified. The

fruits of any search incident to the arrest must be

suppressed.

At common law, as articulated by English and

American courts, a warrantless misdemeanor

arrest is justified, and justifiable, only to the extent

there is an affirmative grant of authority to make

an arrest for the specific category of offense in

question. As this Court has recognized, the precise

scope of arrestable offenses under common law, as

sor etimes modified by statute, has varied over

time as legislatures have changed or expanded the

authority to arrest for misdemeanors. But

throughout, an offense could not be the basis of a

lawful arrest unless it fell within the universe of

offenses for which there was express authority to

arrest.

An arrest for an offense falling outside the

scope of arrestable offenses—outside the express

grant of authority—could never be justified and

was always considered unreasonable. Precisely

because such an arrest is unreasonable, common

law dictated (and still dictates) that the officer who

made such an arrest is liable for damages,

including punitive damages.

Contrary to the State’s argument, a warrantless

misdemeanor arrest could not be justified under

common law simply because there was probable

cause to believe that a misdemeanor had occurred,

3

or even because the officer witnessed it. If the

arrest is not authorized by a positive grant of

authority to arrest for that offense, it is

unreasonable—and neither probable cause to

believe that the misdemeanor was committed, nor

a good faith belief that it was committed, nor even

witnessing its commission can make the arrest

reasonable.

Applying these principles to this case, the

arrest of Mr. Moore is unreasonable under

common law because the State, itself, has declared

it unreasonable by placing Mr. Moore’s offense

outside the universe of arrestable offenses. It

should be considered unreasonable for purposes of

the Fourth Amendment. And, because the arrest is

unreasonable, so is any search that is incident to

that arrest.

ARGUMENT

A. Common Law And Historical Practice

Have Influenced This Court’s

Interpretation Of The Fourth

Amendment’s “Reasonableness”

Requirement.

This Court has frequently looked to the

common law and historical practice in defining the

“reasonableness” requirement of the Fourth

Amendment. Of special relevance here, the Court

has placed significant emphasis on such evidence

when evaluating the “reasonableness” of an arrest.

See, e.g., Atwater v. City of Lago Vista, 532 U.S.

318, 326 (2001); Payton v. New York, 445 U.S.

573, 591 (1980); United States v. Watson, 423 U.S.

411, 418-22 (1976).

4

The evidence considered by the Court includes

(1) English decisions, statutes, and _ legal

commentators pre-dating the Framing, (2) early

American law as expressed in State constitutions,

Colonial and State statutes, and reported decisions,

(3) early Congressional actions, and. (4) historical

practice within the United States since the

Framing. See Watson, 423 U.S. at 418-22; Wilson

v. Arkansas, 514 U.S. 927, 931-34 (1995); Atwater,

532 U.S. at 327-39.

In Wilson, for example, the Court relied on 17th

and 18th century English law, 19th century State

constitutional provisions and legislation, and 19th

century American decisions relating to a law

enforcement officers need to announce his

presence and authority prior to entering a home.

514 U.S. at 931-36.

And in Watson, in deciding whether it was

illegal for a postal inspector to arrest a suspect for

mail theft pursuant to a federal statute allowing

warrantless arrests, 423 U.S. at 414, the Court

considered the historical treatment of warrantless

felony arrests in the English common law, 19th

century American decisions, the Second Congress,

and the then-recent ALI Model Code of

Prearraignment Procedure, see id. at 418-22.

Sometimes, of course, the Court’s analysis

yields no consistent historical account that can

inform Fourth Amendment interpretation. See,

e.g., Payton, 445 U.S. at 598 (declining to resolve

constitutionality of state statute allowing

warrantless arrests by reference to common law

alone where “the issue is not one that can be said to

have been definitively settled by the common law

at the time the Fourth Amendment was adopted”).

5

But where the historical record reflects a consistent

common law tradition accepted by English and

American courts, the Court has often relied on that

tradition in deciding what is “reasonable” under

the Fourth Amendment. Watson, 423 U.S. at 418-

22; Wilson, 514 U.S. at 931-36.

As discussed below, there is a common law

tradition with respect to the power to effect a

warrantless misdemeanor arrest—it undermines

the State’s ahistorical arguments.

B. Under Common Law, There Is No

Right To Make A Warrantless Arrest

For A Misdemeanor Usnless The Law

Affirmatively Deems The Offense An

Arrestable Offense.

At common law, a warrantless misdemeanor

arrest was not justified—and not considered

reasonable—unless the law affirmatively deemed

the offense to be an arrestable offense. An arrest

for the offense had to be authorized by some source

of positive law. That authority could be granted by

historical tradition, which allowed an arrest not for

any misdemeanor, but only for the class of

misdemeanors that qualified as breaches of the

peace. Alternatively, that authority could be

granted by legislative enactment, as this Court

underscored in Atwater. 532 U.S. at 328, 337.

Whatever the source, the affirmative grant of

authority for a misdemeanor arrest had to be

explicit.?

2 In Atwater, this Court noted that there were a variety of

offenses that were considered a breach of the peace such that

(footnote continued...)

6

That was the rule in England. In determining

whether an arrest was appropriate, courts were

careful to identify the specific authority that

justified the arrest. In Regina v. Tooley, 92 Eng.

Rep. 349 (K.B. 1710), for example, the court

undertook to determine whether defendants were

answerable for a murder they committed when they

sought to free a person who was claimed to be

unlawfully arrested. Key to the court’s decision

was whether the arrest was authorized. Were it an

unauthorized arrest, a murder claim could not be

made, although there was still some debate

(continued from previous page)

the narrow definition offered by a party in that case was not

viable. 532 U.S. at 329-39. Amicus does not seek to revive

any contrary argument. Nonetheless, at common law, the

right to arrest for an offense was not unlimited. For

example, Muney v. Leach, 97 Eng. Rep. 1075, 1088 (K.B.

1765), which Atwater cited for the proposition that the

common law “in many cases, gives the authority to arrest,”

532 U.S. at 332 n. 6, concluded that the general warrant at

issue was “illegal and bad.” 97 Eng. Rep. at 1088. In so

holding, the court noted that no common law justification for

the arrest had been offered. Jd. King v. Wilkes, 95 Eng.

Rep. 737 (K.B. 1763), also addressed whether a general

warrant authorized an arrest. It is true, as noted in Atwater,

that the Wilkes court mentioned that an arrest could be

effected for a crime committed in the presence of a peace

officer. However, that was dicta, at issue was not a

warrantless arrest. It does not appear that the court, in a

single sentence, sought to expand, overrule or suggest as

wrong the common law tradition that cabined the authority

to make warrantless arrests. See also, Thomas Y. Davies,

The Fictional Character of Law-and-Order Originalism: A

Case Study of the Distortion and Evasions of Framing-Era

Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L.

Rev. 239, 314-317 (2002) (discussing the breadth of common

law authority to arrest for misdemeanors).

7

whether a manslaughter claim was viable. In

reaching its decision, the court noted that the

arresting officer had a warrant; however, the court

was careful to note that the warrant did not

authorize the arrest at issue. In the court’s own

words: “But taking him to be a lawful officer, yet

that will not justify his acting any thing beyond his

authority: it dces not appear, that he ever acted

under the recruit warrant; and though, if he see

persons fighting, he may restrain them ex officio,

or take up suspicious persons, yet the taking of this

woman was not lawful....” Jd. at 351. In terms

of the suspicion necessary to justify the arrest, the

cours noted that the right to arrest was not

unfettered. “[I]t is not a constable’s suspecting,

that will justify his taking up a person, but it must

be just grounds of suspicion . . . as if a felony had

been done... .” Jd. at 352. Continuing, the court

noted that with regard to warrantless arrests, the

authority to arrest was limited: “[A] constable

cannot arrest, but when he sees an actual breach of

the peace; and if the affray be over, he cannot

arrest.” Id. (emphasis added).

As any reader at the time would have

understood, not every misdemeanor rises to the

level of a “breach of the peace.” So, the court’s

analysis confirmed that even if an officer

personally witnessed a misdemeanor, he did not

necessarily have the authority to make a

warrantless misdemeanor arrest; in order to be

legally permitted to make an arrest for a

misdemeanor, it had to be a particular class of

misdemeanor.

In Derecourt v. Corbishley, 119 Eng. Rep. 452

(K.B. 1855), the court faced a similar question—

8

whether the constable had the right to make the

arrest. The issue was alternatively phrased as

“[w]as what the constable did justifiable?” Jd. at

453. In answering this question, the court noted

that there were limitations to the right arrest. “I

admit that for a mere misdemeanor which has

passed by[,] the constable has no power to take up

of his own authority.” Jd. The arrest at issue was,

however, justified because the offense was a breach

of the peace witnessed by the arresting official. Id.

at 451, 453; see also Cook v. Nethercote, 172 Eng.

Rep. 1443, 1445 (K.B. 1835) (“[T]he power is given

[the constable] by law to prevent a breach of the

peace; and where a breach of the peace had been

committed, and was over, the constable must

proceed .. . by obtaining a warrant.”).

Courts in the United States adopted this

tradition from England. Here, too, a warrantless

misdemeanor arrest must be justified by some

positive grant of authority, i.e., it must be an

offense for which authority has been granted to

make an arrest. In granting the authority to arrest,

states have adopted a variety of approaches. Some

have defined offenses as felonies, thus broadening

the right to arrest. See Commonwealth v. Carey,

66 Mass. 246 (1853). In Carey, the court noted

that by statute the legislature had “in a great

measure obliterated” the line between

misdemeanors and other offenses. Jd. at 252. Yet,

despite noting the similarity between the

misdemeanor at issue and those crimes defined as

felonies, the court found an arrest to be illegal and

improper because the conduct at issue remained a

misdemeanor for which there was no granted

authority to make the arrest. Id. at 253.

9

In some places, the common law rule has been

supplanted by statute. For example, as the

California Supreme Court has explained, “[a]t

common law it was the general rule that a warrant

was required for a misdemeanor arrest unless the

offense amounted to a breach of the peace and was

committed in the presence of the arresting officer.”

In re Thierry S., 566 P.2d 610, 613 (Cal. 1977). But

the legislature expanded the common law rule,

giving an officer much broader authority to make a

warrantless arrest for any misdemeanor committed

in his presence. Jd.; Cal. Penal Code § 836; see

also Atwater, 532 U.S. at 327-45, 355-60

(discussing and citing state laws that expand the

right to arrest for misdemeanors).

While respecting the legislative power to

broaden the universe of arrestable offenses beyond

those offenses recognized at common law, courts

have still reaffirmed the basic proposition that it is

impermissible for an officer to make a warrantless

arrest for a misdemeanor without a grant of power.

For example, the court in Lyons v. Worley, 4 P.2d

3, 5 (Okla. 1931), noted that Oklahoma’s statutes

granted more authority to officers to arrest for

misdemeanors than that afforded at common law.

Nonetheless, the court found that this expansion

did not create the right to arrest beyond the

specific grant of authority. “[WJhile the codifiers

of our law saw fit to extend the authority to arrest

without a warrant to all public offenses,” the court

found that further extension could not be allowed

“except by bald judicial legislation,” which the

court refused. Id. at 6; see also Phillips v. Fadden,

125 Mass. 198, 201-02 (1878) (finding officer liable

where he exceeded the expanded arrest authority of

a public drunkenness statute); Brock v. Stimson,

10

108 Mass. 520, 522 (1871) (same); Delafoile v.

State, 24 A. 557, 558 (N.J. 1892) (noting that an

officer’s common law powers allowed him to make

a warrantless arrest for “some misdemeanors”

(emphasis added)); accord 4 W. Blackstone,

Commentaries On The Laws Of England 292

(noting that right to arrest without warrant

extended to felonies and breaches of the peace).

To be sure, some cases suggest that the

common law authority to arrest was broader. They

render the “old established rule of the common

law” as holding that an officer may arrest for any

misdemeanor committed in his presence. Carey,

66 Mass. at 251-52; see also, e.g., Watson, 423 U.S.

at 418; Daering v. Stace, 49 Ind. 56, 58-59 (1874).

However, to use this Court’s expression, this

shorthand statement of the common law “tends to

mislead.” Atwater, 532 U.S. at 329.

For example, in considering the propriety of a

warrantless felony arrest, in dicta the Watson

Court broadly characterized common law as

authorizing warrantless arrests for any

misdemeanor committed in the presence of a peace

officer. See 423 U.S. at 418. However, the

authority the Court cited for this proposition

establishes that the right to arrest for a

misdemeanor was more circumscribed. Halsbury’s

Laws of England, cited by the Court, notes that the

arrest authority was limited to arrests for a breach

of the peace. 10 Halsbury’s Laws of England 344-

345 (3d ed. 1955). The law review article the Court

cited was also careful to note that the common law

rule was that the arrest authority depended on a

breach of the peace committed in an officer’s

presence. See Horace L. Wilgus, Arrest Without a

11

Warrant, 22 Mich. L. Rev. 541, 547-50 (1924).3

C. An Arrest For An Offense That Was

Not Arrestable Was Always

Unreasonable Even If There Was

Probable Cause.

The State posits that probable cause justifies

any arrest whether it be for a felony or for a

misdemeanor. Pet. Br. at 9, 14-17. However, such

an argument finds no support in the historical

record. The cases cited by the State also do not

support the assertion. The question of whether

there was authority granted to arrest for the

offense in question was not raised or addressed.4

3 Other similar assertions can also be discounted for

similar reasons. For example, the court in Baltimore and

Ohio Railroad Co. v. Cain, 31 A. 801, 803 (Md. 1895), stated

that “[iJt is settled that an officer has the right to arrest

without a warrant for any crime committed within his view.

Tt was his duty to do so at the common law and this is still

the law.” As in Watson, the authorities cited for this

proposition confirm that it is an overly broad and inaccurate

characterization of common law. Derecourt v. Corbishley,

119 Eng. Rep. 452 (1855), as noted, did not hold that the

commission of any misdemeanor in the presence of a peace

officer justified an arrest. The offense at issue was a breach

of the peace for which, as noted, a warrantless arrest was

authorized provided it was committed in the presence of a

constable. The same is true of Phillips v. Trull, 11 Johns.

486 (N.Y. 1814), also cited by the Cain court.

4 See Davenpeck v. Alford, 543 U.S. 146 (2004) (no

argument made that statutes invoked did not authorize

arrest); Maryland v. Pringle, 540 U.S. 366 (2003) (same);

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (statute

authorized arrest); Whren v. United States, 517 U.S. 806

(1996) (authority to effect traffic stop not challenged);

Florida v. Wells, 495 U.S. 1 (1990) (authority to stop for

(footnote continued...)

12

In fact, at common law, an arrest for an

unarrestable offense could not be justified, even

where there was probable cause to believe, or

irrefutable evidence to show, that an offense had

occurred.

At common law, a warrantless arrest for an

offense for which there was no authority to arrest

was illegal and could not be considered reasonable.

Indeed, precisely because such an arrest was

unreasonable, English common law provided that

an arrestee was fully within his rights to resist

arrest if an officer tried to arrest him for a crime

that was not subject to arrest. See, e.g., Regina v.

Tooley, 92 Eng. Rep. 349, 350 (K.B. 1710).

Moreover, the arresting officer was liable for

damages to the arrested person for the

unreasonable arrest. See, e.g., Fox v. Gaunt, 3 B.&

Ad. 798 (K.B. 1832); Coupey v. Henley, 2 Esp. 540

(K.B. 1797). Such arrests were considered so

unreasonable that the victim was entitled to

punitive damages to deter the conduct and ensure

full compensation. See Huckle v. Money, 95 Eng.

Rep. 768 (K. B. 1763); Anthony J. Sebok, Punitive

(continued from previous page)

speeding not challenged); Michigan Dep’t of State Police v.

Sitz, 496 U.S. 444 (1990) (authority to enforce laws

prohibiting drunk driving law unchallenged); Michigan uv.

DeFillippo, 443 U.S. 31, 39-40 (1979) (statute authorized

arrest); South Dakota v. Opperman, 428 U.S. 364 (1976)

(search followed lawful impoundment of car); United States

v. Robinson, 414 U.S. 218 (1973) (authority to arrest not

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

(statute gave authority to arrest); Brinegar v. United States,

338 U.S. 160 (1949) (statutory power to arrest not

challenged).

13

Damages from Myth to Theory, 92 lowa L. Rev.

957, 977 (2007).

These rules found acceptance in the United

States. Here, as in England, arrestees are entitled

(unless there are statutes abrogating the right) to

resist arrest if the offense is outside the scope of

arrestable offenses. See Bad Elk v. U.S., 177 U.S.

529, 534-35 (1900); Rafferty v. People, 69 Ill. 111,

118 (1873); Note, Defiance of Unlawful Authority,

83 Harv. L. Rev. 626, 636 (1970). Here, too, an

officer is liable for damages for an arrest for an

offense that should not have been subject to arrest.

See, e.g., Goold v. Saunders, 194 N.W. 227, 229

(lowa 1923); Thamel v. East Hartford, 373 F.

Supp. 455, 458 (D. Conn. 1974); Ashton v. Brown,

660 A.2d 447, 472 (Md. 1995). And, a plaintiff

suing for unlawful arrest may still obtain punitive

damages. See, e.g., D’Elia v. 58-35 Utopia

Parkway Corp., 43 A.D.3d 976, 341-42 (N.Y.

2007).

And contrary to the State’s argument, if an

officer arrested a person for a misdemeanor that

was not arrestable, the unreasonable arrest could

not be justified on the ground that the officer had

probable cause to believe that the offense had been

committed. To be sure, as a general rule, in both

England and here, an officer could always arrest so

long as he had probable cause to believe the

arrestee had committed a felony.5 See, e.g.,

5 Some cases—particularly those decided around the time

of the Framing—use the term “reasonable suspicion” and not

“probable cause.” There is a scholarly debate over what

precisely the term “reasonable suspicion” meant; however,

(footnote continued...)

14

Samuel v. Payne, 99 Eng. Rep. 230 (K.B. 1780)

(considering the officer’s “reasonable charge of a

felony” as dispositive of the propriety of the arrest

even if it were later found that no felony had

actually been committed); Davis v. Russell, 130

Eng. Rep. 1098, 1102-03 (K.B. 1829) (same);

Daering, 49 Ind. at 58-59 (noting that an officer

could arrest for a felony based on probable cause);

Goold, 194 N.W. at 229 (holding that defendant

officer would be liable for injuries sustained when

he accidentally shot the wrong perpetrator of mail

robbery unless the officer could show “reasonable

grounds for believing that the plaintiff was

guilty”).® That was because felonies were

arrestable offenses.

But because not every misdemeanor was an

arrestable offense, there was no such rule for

misdemeanors. If the misdemeanor was not

arrestable, the officer could not legally arrest. It

did not matter that the officer had probable cause

(continued from previous page)

commentators are agreed that it meant that some evidence of

wrong-doing was necessary. Thomas K. Clancy, The Fourth

Amendment's Concept of Reasonableness, 2004 Utah L. Rev.

977, 978-80 & n. 10 (2004).

6 See also Commonwealth v. Phelps, 209 Mass. 369,

407-08 (1911) (felony arrest justified by probable cause);

Cook v. Hastings, 150 Mich. 289, 290 (1907) (finding it

significant in evaluating the propriety of arrest that there

were no reasonable grounds to believe the arrestee had

committed a felony); Rohan v. Sawin, 5 Cush. 281, 285

(Mass. 1850) (stating that an officer would be free from

liability for a warrantless arrest if he had “probable and

reasonable grounds for believing the party guilty of a

felony”).

15

to believe the arrestee committed the crime, or (as

we have seen) even that the officer personally

witnessed it. That is why the courts, both here and

in England, have been careful to draw this sharp

distinction between felonies and misdemeanors.

In Fox v. Gaunt, 3 B. & Ad. 798 (K.B. 1832), for

example, the court rejected the argument that a

warrantless misdemeanor arrest was permissible

where there was probable cause to believe that the

offense had occurred outside of the presence of the

officer. In so holding the court stated that “[t]he

instances ... of an arrest on suspicion after the fact

is over, relate to felony;” it noted that this

distinction between a felony and a misdemeanor is

a rule that “must be made absolute.” Jd. at 800;

see also Davis, 130 Eng. Rep. at 1102. Our courts

have followed the same distinction. See Watson,

423 U.S. at 421-23 (stating that “[t]he balance

struck by the common law in generally authorizing

felony arrests on probable cause, but without a

warrant, has survived substantially intact,” and

that Section 120.1 of the Model Penal Code

mirroring this part of the common law is “the rule

Congress has long directed its principal law

enforcement officers to follow”); Ross v. Leggett,

28 N.W. 695, 697 (Mich. 1886) (noting that, unlike

misdemeanor arrests, felony arrests can be effected

upon “proper information,—such information as

would justify a reasonable man in acting upon it”).

In keeping with these principles, our courts

have followed the common law rule that “denied a

police officer a ‘good faith’ or ‘probable cause’

defense in a_ suit for false arrest for a

misdemeanor.” Thamel, 373 F. Supp. at 458; see

also Ashton, 660 A.2d at 472 (“The Court has

16

consistently held that probable cause is not a

defense in an action for false imprisonment based

upon a police officer's warrantless arrest for the

commission of a non-felony offense.”); Gold v.

Armer, 124 N.Y.S. 1069, 1069 (App. Div. 1910) (“It

follows that the question of reasonable cause was

not an element bearing upon the plaintiffs right to

recover.”).

Not even actual guilt is a justification. In

Lyons, for example, the arresting officer was found

liable for common law trespass although plaintiff

in the common law action had admitted to having

committed a misdemeanor. The court allowed the

common law claim to go forward because the

misdemeanor statute, which expanded the common

law rights to arrest, only authorized an arrest for a

misdemeanor committed in the presence of the

officer. 4 P.2d at 6. Lyons does not stand alone.

In Ross, the court instructed the jury that a

misdemeanor arrest could be considered illegal if

not authorized even though the jury might find the

arrestee committed the misdemeanor. 28 N.W. at

696-97. In McCullough v. Greenfield, 95 N.W.

532, 534 (Mich. 1903), the fact that the arrestee

later pleaded guilty to the offense did not absolve

the officer of liability for the initial illegal

misdemeanor arrest. See also State v. Hunter, 11

S.E. 366, 369 (N.C. 1890) (despite arrestee’s

admission that he had been drinking, officer lacked

authority to make misdemeanor arrest).

This is not to say that probable cause is

completely irrelevant. Even though it will not

make an otherwise unreasonable arrest reasonable,

probable cause that a crime was committed is

relevant to three issues.

17

First, although it is not a complete defense,

probable cause to believe that a crime had been

committed could be asserted to mitigate damages.

“The law is well settled that, in an action for false

imprisonment, plaintiff having made out a case of

false arrest, it is ‘for defendants to show, if they

could, that they had probable cause, and this not to

wholly defeat the action, but to mitigate the

damages.” De Silva v. N.Y. Cent R. Co., 169 N.Y.S.

924, 925 (App. Div. 1918) (quoting Parke v.

Fellman, 145 A.D. 836, 837 (N.Y. App. Div. 1911));

see also Reuck v. McGregor, 32 N.J.L. 70, 75-76

(N.J. Sup. Ct. 1866) (holding that probable cause

should reduce damages in a case of wrongful

citizen’s arrest); Palmer v. Me. Central Ry. Co., 42

A. 800, 804 (Me. 1899) (“Where the justification

for an arrest fails, ... the plaintiff is entitled to

recover, at least, compensatory damages,

although the defendant may have acted in good

faith, without malice, and upon _ reasonable

grounds.”).

Second, probable cause was relevant where an

officer was being criminally prosecuted for making

an improper misdemeanor arrest. “If [the officer]

acted in good faith, upon reasonable and probable

cause of belief, without rashness or negligence,” he

cannot be held criminally liable “because he is

found to be mistaken.” Commonwealth v. Cheney,

141 Mass. 102, 104 (1886). Still, good faith was no

defense to the asserted wrongfulness of the arrest.

Id. at 103.

Finally, probable cause is relevant to the issue

of whether the arrest is appropriate if the offense at

issue is an offense for which there is authority to

arrest. If there is a statute that allows the officer to

18

arrest for the specific misdemeanor at issue, courts

will seek to determine whether the arresting officer

had probable cause to believe that the offense was

being committed. See, e.g., Coverstone v. Davies,

239 P.2d 876, 879 (Cal. 1952) (collecting cases).7

This treatment of “probable cause” in the

context of the warrantless misdemeanor arrest

stands in contrast to the State’s proposal that Mr.

Moore’s arrest was reasonable under the Fourth

Amendment just because the officers had probable

cause to believe he was driving on a suspended

license. Under common law principles, this

analysis fails because it does not matter whether

there was probable cause to believe that Mr. Moore

was driving on a suspended license or irrefutable

proof that he was. The arrest was not authorized.

It was, therefore, unreasonable.

HHRHRE

7 Some cases that hold that an officer making an arrest

for a misdemeanor has the duty to prove that the person

arrested is actually guilty of the crime. See, e.g., Phillips v.

Fadden, 125 Mass. 198, 201 (1878).

19

CONCLUSION

The argument that the warrantless arrest of

Mr. Moore is “reasonable” because the officers had

probable cause to believe he committed a

misdemeanor finds no support in either English or

American legal traditions. To the contrary, the

arrest of Mr. Moore for an unarrestable offense was

unreasonable at common law and should be

considered unreasonable under the Fourth

Amendment.

Respectfully submitted,

Pamela Harris E. Joshua Rosenkranz

Co-chair, Amicus Counsel of Record

Committee HELLER EHRMAN LLP

National Association of Times Square Tower

Criminal Defense Lawyers 7 Times Square

1625 I Street, N.W. New York, NY 10036

Washington D.C. 20006 (212) 832-8300

(202) 383-5386

Warrington S. Parker, III

Alexander M.R. Lyon

HELLER EHRMAN LLP

333 Bush Street

San Francisco, CA 94104

December 10, 2007 Counsel for Amicus

Curiae