Granted Cert: Admissibility of Search Incident to Unlawful Arrest

September 25, 2007 | | Comments Off on Granted Cert: Admissibility of Search Incident to Unlawful Arrest

Virginia law provides that an officer may not arrest someone detained for a misdemeanor, but must rather rely on a summons and release them. In this case David Moore was stopped on suspicion of driving on a suspended license, he was arrested, and in a subsequent search police found 16 grams of crack cocaine (an issue the Court will also take up this term, see here) and $516 in cash. A minority of state courts have held that when an arrest is unlawful under state law the exclusionary rule applies to bar any evidence resulting from the arrest and any incident search.

The underlying tension in this case is that the Fourth Amendment contains a standard of probable cause and reasonableness, while states like Virginia employ different standards in their courts. Some states argue that applying Fourth Amendment exclusionary principles on the (presumably) lesser standard provided by state law violates principles of federalism, and the idea that the Bill of Rights sets a baseline for protection. The obvious argument on the opposing side is that the Fourth Amendment exclusionary rule is not a constitutional rule at all, but a policy rule designed to prevent abuse — as such, it does not offend federalism to apply the policy in whatever context the states are free to construct.

Moore also argues that the whole search-incident-to-arrest itself is an exception to the prohibition against warrantless searches that was explicitly limited to lawful arrests. The problem with this argument is that the justification for such searches had more to do with officer safety than satisfaction of warrant requirements, and that the Court has every reason to decide this because this was an “exception” to a prudential (as opposed to constitutional) rule, it was not an exception at all but the limits of the exclusionary rule’s policy.

My personal affinity for substantive Fourth Amendment protections notwithstanding, I think the case is a loser. Reasonableness of a search need not turn on the legitimacy of the detention (with exceptions of course for bad faith or widespread abuse), but the Court need not even go that far — it could simply say that it declines to extend the policy rationale of the exclusionary rule to the minutiae of state law, while observing that state protections can be as broad as they like. I don’t think it will even be a case where Justice Kennedy’s vote is decisive, but in case you are interested, he addressed the policy implications of the exclusionary rule quite recently (see here).

The case is Virginia v. Moore: docket, petition (pdf), brief in opposition (pdf), reply (pdf)


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