Next Monday the Supreme Court will hold oral argument in Virginia v. Moore, a very interesting Fourth Amendment case. The briefs are available here. The issue: If state police officers have probable cause to believe a person has committed a state crime, does the Fourth Amendment allow the officers to arrest the person and then search him incident to arrest if state law does not actually authorize an arrest for that crime? I think the answer is "no" and that the defendant in the case should win. In this post, I want to explain why.

  The facts of the case are simple. Moore was driving around Virginia with a suspended license when he was stopped by two police detectives. They arrested him for driving on a suspended license, which is a misdemeanor in Virginia that carries a maximum punishment of one year in jail. They then searched him incident to the arrest and found 16g of crack on him. Moore was then charged with possession with intent to distribute, based on the discovery incident to his arrest. But there's a twist: Virginia state law requires officers to issue a summons for driving without a license. It does not authorize the officers to make an arrest. Moore's claim is that the state prohibition on arrests for this crime makes his arrest constitutionally unreasonable, such that the search that led to the crack was (in Fourth Amendment parlance) "fruit of the poisonous tree."

  This case is particularly interesting because the Fourth Amendment has long had a complicated relationship with state law. In some instances, the Fourth Amendment is keyed to state law: for example, probable cause determinations for state arrests are made in reference to the state definition of the crime, see, e.g., Maryland v. Pringle. But in some instances, the Fourth Amendment ignores state law. For example, if the federal government violates a state law in the course of a search, the state law violation cannot lead to suppression, see Olmstead v. United States. The question is, does Virginia v. Moore raise one of the circumstances in which it matters or one of the circumstances in which it doesn't?

  In my view, the correct answer is that here state law does matter, and the search incident to arrest in this case should be held to violate the Fourth Amendment. The reason is simple: the "search incident to a lawful arrest" exception only permits searches incident to lawful arrests, not searches incident to unlawful arrests. Going back to English common law, courts have held that a lawful arrest justifies a search of the person pursuant to that lawful arrest. The lawfulness of the arrest has always been a critical part of the reasonableness of the search. Moore concerns an arrest by state police for a state crime. If the state law makes an arrest unlawful, any search incident to arrest is a search incident to an unlawful arrest rather than a search incident to a lawful arrest. It therefore violates the Fourth Amendment.

  An excellent illustration is Justice Jackson's opinion in United States v. Di Re, 332 U.S. 581 (1948). Di Re is a WWII-era case involving a guy who was arrested in New York for possessing fake gas rations. The rations were found during a search incident to arrest, and the question in the relevant part of the case was whether the arrest was lawful, making the search incident to a lawful arrest. As Justice Jackson put it, "If he was lawfully arrested, it is not questioned that the ensuing search was permissible. Hence we must examine the circumstances and the law of arrest." The question of whether the arrest was lawful was complicated in that case because it was an arrest for a federal crime made by state police officer acting at the request of a federal agent. As a result, it wasn't entirely clear whether the lawfulness of the arrest was to be determined by New York arrest law or federal law.

  Justice Jackson concluded that, as a general matter, the lawfulness of the arrest for a federal crime was to be determined by state law instead of federal law absent clear guidance from Congress:

[I]n absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, 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.' There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest.

After looking for a federal law on point and finding none, Justice Jackson turned to New York state law and performed a detailed analysis of the lawfulness of the arrest under New York state law. Jackson concluded that the arrest was not lawful as a matter of state law under the facts of that case, and that therefore the search incident to arrest exception could not apply. Justice Jackson concluded with some sharp words for the government:

It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.

  In my view, the Di Re precedent pretty much answers Virginia v. Moore. In the Moore case, the arrest is obviously unlawful: state law does not allow for an arrest in such circumstances. Here the proper law to consult is obvious: this was a state arrest for a state law violation made by state officials, so the lawfulness of the arrest should be determined by state law. Because the arrest was unlawful, there could be no search incident to a lawful arrest under United States v. Di Re.

  That's my view, at least. The merits briefs in the case don't focus much on this argument. In the brief for Moore, his very able team of lawyers (a group including Tom Goldstein, Pam Karlan, and Jeffrey Fisher) take a very different approach. They contend that there should be a balancing test that determines the reasonableness of arrests, weighing the state interests and the person's individual interests, and that the courts should weigh the importance of the state's interests by looking at the state's decision of whether to authorize arrests for that crime. A state that hasn't authorized arrests clearly believes that it has no interests in detention, so arresting someone is unreasonable in that setting given the absence of a state interest. Thus the search is the fruit of a seizure that violates the Fourth Amendment, and the evidence must be suppressed.