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