This morning the Supreme Court held argument in Virginia v. Moore, the Fourth Amendment case I have blogged about this past week. On the whole, the argument went extremely well for Virginia. In the first half hour, the Justices seemed to think Virginia's position was so obviously correct that they appeared rather bored. Several seemed to be asking questions just to fill up time. Scalia seemed a bit skeptical, and Justices Stevens and Ginsburg were doing their best to question the state, but all in all the first half hour went extremely well for the petitioners.

  In the second half of the argument, Tom Goldstein argued for the respondents. Given that the Justices were pretty clearly against him on the main arguments of his brief, Goldstein wisely switched gears and focused more on the "search incident to a lawful arrest" argument under DiRe, Johnson, Ker, and Fillipo. This went a bit better, although the historical framing of the argument drew some eyebrows from the more policy-oriented Justices who would be needed votes, such as Justice Breyer.

  One problem for the respondents was that by framing the issue as a balancing test in which the state interest is measured by state law, the argument invited the Justices to look at whether they normally defer to state law to assess the strength of Fourth Amendment interests. The record there is mixed: sometimes they do, and sometimes they don't. You could list a dozen cases on one side of that argument, and another dozen on the other. But there are certainly instances in which the Court doesn't, and the Justices seemed to be grabbing on to those cases (like California v. Greenwood and Cooper v. California) and thinking that settled the matter. The benefit of the DiRe/Johnson line of cases is that they break out of the general interest balancing into a separate category with a clear historical and precedential lineage. But it was unclear if the Justices were willing to look closely at those cases and apply them here. Justice Kennedy stated that he read DiRe as a case on the federal supervisory power; that's incorrect, as I have argued at length.

  One hypothetical I wish the Court had posed for the state (but did not) was whether their theory would allow arrests for civil offenses. Under Whren v. United States, probable cause to believe a civil traffic offense has occurred justifies a stop of the car. In Whren, Justice Scalia seemed oddly unconcerned that the traffic violation was not actually a crime; he seemed to treat "probable cause" as a freestanding notion with no particular reference to whether it was of a crime or not. So here's the question: under the state's theory of the case, after the police stop a driver for speeding, a civil violation, can they arrest the person and then search them incident to arrest for the civil offense? That is, does there even need to be a crime at all, if there is probable cause that a civil violation occurred? The question would have forced the state to either take a pretty frightening position that they can arrest when no crime occurs at all or else to concede that the constitutionality of an arrest for a traffic offense is governed by a technical question of state law — specifically, whether that particular state categorized that particular traffic offense as a crime or a civil violation. Anyway, no one asked the question, but I would have been interested in the state's response to it.

  UPDATE: The oral argument transcript is available here.