Thursday, April 24, 2008

Driving on a Suspended Fourth Amendment

Yesterday, in Virginia v. Moore , the U.S. Supreme Court held that the Fourth Amendment does not prohibit police from arresting a person on the basis of probable cause to believe that he has committed a no-arrest misdemeanor under state law. In an opinion by Justice Scalia, the Court said that (1) materials from the founding era do not support the view that the Fourth Amendment was intended to incorporate statutes, and (2) balancing intrusiveness against need (the appropriate test in the absence of evidence of the original understanding), arrest on the basis of probable cause for any crime, however minor, is reasonable, and there is no reason to change the calculus because a state chooses to protect more privacy than the Fourth Amendment, a change that would be hard to administer, in practice.

The crime at issue in Moore was driving on a suspended license. The police in the case had probable cause to believe that Moore was committing this crime. Under Virginia law, however, the police were not authorized to arrest a person for this particular misdemeanor. They were required to issue a citation. Had they issued a citation, then the search incident to arrest that they performed (and that led them to find crack cocaine, for the possession of which Moore was subsequently prosecuted and convicted) would have violated the Fourth Amendment under Knowles v. Iowa, because there is no permissible "search incident to citation." Because the police illegally arrested Moore (instead of complying with state law by issuing a citation), however, their subsequent search was incident to an arrest and hence did not violate the Fourth Amendment. This points to the somewhat ironic result in Virginia v. Moore through which police who wish to search a person committing a traffic offense in the absence of probable cause to justify a search (and in the absence of state authorization to arrest the suspect) can ensure compliance with the Fourth Amendment only by unlawfully arresting the suspect.

In addition to what one might call a perverse incentive, however, the result in the case is misguided for another reason: it elevates form over substance. It does so by treating "probable cause" as a free-floating concept. Police, on this understanding, had "probable cause" to believe that Moore was committing a crime, namely, driving with a suspended license. By refusing to permit an arrest for this particular crime, however, the state legislature of Virginia had indicated its will regarding the criminal status of driving on a suspended license -- that is serious enough to merit a citation but insufficiently serious to warrant an arrest. It could have instead classified driving on a suspended license as a civil rather than a criminal offense. Had it done so, it presumably would have been unconstitutional for the police to arrest Moore for such an infraction, even though police would necessarily have had "probable cause" to believe that Moore had indeed driven on a suspended license. Similarly, though police might have probable cause to believe that you breached a contract with your plumber or that you discriminated on the basis of sex against one of your employees, the police nonetheless would not be allowed (as a matter of either state law or the Fourth Amendment) to arrest you on the basis of that probable cause.

The fact that the Court dwells on form in the construction of the phrase "probable cause" might seem to have few untoward consequences. After all, if Virginia wishes to classify driving on a suspended license as a civil violation or a tort, it can do so and accomplish the same result that it had perhaps hoped to accomplish by prohibiting arrest in the first place. The problem, however, is that this means that states have less flexibility in drawing lines between civil offenses and crimes. They cannot create hybrids anymore, at least if they want the U.S. Supreme Court to respect such hybrids, which Virginia was perhaps trying to do by designating a misdemeanor that would not provide grounds for an arrest. The Virginia Supreme Court may, of course, find that its own Constitution prohibits arrests (and provides for the exclusion of evidence found during searches incident to such arrests) for "citation-only" offenses. But this is simply another way of saying that if state legislators wish to create hybrid offenses, the U.S. Constitution will ignore their wishes.

Posted by Sherry Colb


egarber said...

A few questions.

As I understand it, the police arrested him first (unlawfully under state law), then searched him, finding cocaine. The Court ruled that the officer's action still reflected probable cause under the fourth -- i.e., the Fourth Amendment largely exists separately from the nuances of state legal codes.

Suppose though, that *no* state law of any sort was at play. Can an officer still rely on probable cause as a defense? And if not, does that not mean that the fourth is indeed tethered to state law (contrary to Scalia's implication that the fourth doesn't imbed statutes)?

Eric said...
This comment has been removed by the author.
Sobek said...

What an odd case.

Virginia law apparently doesn't require the suppression of evidence obtained in violation of state law. Perhaps Virginia can change the result here by changing its exclusionary rules.

Scalia writes: "That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness."

But what is the Supreme Court, if not a government actor?

Sherry F. Colb said...

Yes, to both egarber and sobek. Egarber is absolutely correct that the Fourth Amendment is still tethered to state law, because state law defines what is and what is not a criminal offense (which gives meaning to "probable cause"). There is no probable cause in a total vacuum. Sobek is also right to point out, first, that Virginia can apply an exclusionary rule under its own Constitution (or under its own evidence law) to the fruits of of what occurred in this case. Sobek is also correct to note that when the Supreme Court sets the rules for search and seizure, it -- like the legislature of a particular state -- has acted in its capacity as government actor. I think he means to suggest that there should be some uniform standard for what is and is not reasonable, but the body that sets that uniform standard is, of course, a governmental body. Furthermore, as egarber suggested, the uniform standard must begin with a criminal law created by a state government. If spitting in the street is legal in Tennessee but criminal in Oklahoma, then police in Tennessee can behave in exactly the same way as police in Oklahoma but violate the Fourth Amendment when the Oklahoma police have not. Procedural rights are inherently parasitic on substance, and different states create distinctive substance.

Sobek said...

"I think he means to suggest that there should be some uniform standard for what is and is not reasonable..."

No, just suggesting that Scalia's comment was asinine. I agree with you and egarber (mind if I call you Eric?) that the Fourth Amendment is necessary "tethered" to state law at some level.

egarber said...

Sobek -- no prob calling me Eric. I'm often called something way worse :)

It's also interesting that in Knowles, if I understand it right, there's yet another statutory trigger at the state level that defines the line -- i.e., the timing or even the existence of a "citation" is fully controlled by law, right? So I guess this means that if Georgia were to only issue a citation for one traffic violation (Z), while NY required them for violations A thru Y, a search in Georgia would be potentially much wider and of a longer duration than one in NY, where the citation cuts it short.

That seems weird to me, given that intuitively, the constitution seemingly stands for uniform application. How many other rights (procedural or substantive) under the BOR behave the same way (realizing that some aren't incorporated)?

Sherry F. Colb said...

Actually, Knowles just says that if there's a citation, there cannot be a search incident to a citation. In Iowa, police had a choice of whether to issue a citation or arrest. Had they arrested, the search would have been legal. Now, under Moore, we know that even if state law does not offer the arrest alternative (such as it does not in Virginia), police may feel free to ignore that legal constraint and arrest anyway, and both the arrest and the search incident to the arrest will be accepted as a matter of Fourth Amendment law. Therefore, the particulars of whether a state permits citation or arrest will no longer make a difference to the legality of a subsequent search, unless police decide (unencumbered by the Fourth Amendment) to obey state law regarding when arrest is lawful or unlawful.

egarber said...

Thanks Sherry.

So just to put this in my words, are you saying that from a Fourth Amendment perspective, the previous line drawn at a citation no longer means what it once did under my hypothetical -- because even if an officer crosses that line, a subsequent search and arrest are acceptable under the updated probable cause standard (assuming there is cause)?

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