Oral Argument in Virginia v. Moore:
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.
I attended the argument this morning. It seemed to me that the common law-trespass strand of Goldstein's argument was angling for votes from some Justices who are normally not inclined to support defendants' rights in Fourth Amendment cases, including perhaps Scalia. But Souter seemed to say that the Court has rejected the trespass rationale in the Fourth Amendment context, and then Goldstein seemed to mostly go off it. None of the other Justices seemed to weigh in on that point, so it was difficult to get a sense of whether or not it may have convinced some of the more originalist-oriented Justices.

I was having a bit of a hard time understanding the purpose behind Scalia's questioning about the Supreme Court Justice (or the janitor employed by the federal government) who searches his neighbor's house. Was he perhaps setting up something for a majority opinion later on about how police officers have some sort of inherent authority to conduct arrests which satisfies constitutional objections to the reasonableness of an arrest (or a search contingent on such an arrest) in the absence of blatantly abusive or illegal conduct? Whatever his point, it didn't seem as though petitioner's counsel was giving him the answer he was looking for.
1.14.2008 12:55pm
For former clerks out there- particularly Prof. Kerr:
What are the chances that any of the Justices will take the time to do the research that Prof. Kerr did to get the best look at the actual rationale of DiRe? I'm no expert in how they approach these things, but given Justices Roberts' and Alito's recent propensity to pay lip service to case law while distinguishing old cases on grounds not relevant to the original decision, it would seem to me unlikely to come from either of those two.
1.14.2008 1:08pm
What are the chances that any of the Justices will take the time to do the research that Prof. Kerr did to get the best look at the actual rationale of DiRe?

At least a handful of their clerks read the VC. The odds of them seeing Prof. Kerr's post and investigating further are probably better than the odds that they'll independently decide to read all of the briefs from the Second Circuit and Supreme Court in DiRe, read them, and come to the same conclusion as Prof. Kerr.

But I'm not a former Supreme Court clerk, so this is just idle speculation.
1.14.2008 1:29pm
Chris B. (mail):
Very interesting. Thanks for writing this out - I can't wait to read the transcript. I will again say that I agree with Justice Kennedy's reading of Di Re, even in light of Orin's findings. I had typed up more of the reasons why in the comment thread to Prof. Kerr's great post about Di Re, but the comment portion of that thread vanished so I suppose all that is lost in cyberspace. After I read oral argument I'll throw up a few more comments.
1.14.2008 1:43pm

I thought there was a tremendous amount of confusion among the Justices at argument about the different categories of the Fourth Amendment. Some of these misunderstandings made listening to the argument a bit painful. For example, the search incident to a lawful arrest doctrine has nothing whatsoever to do with trespass. Goldstein mentioned trespass, but that was an error, I think. Rather, the notion was that the lawful power to arrest triggers a set of government needs to protect safety and collect evidence. The decision of the state to permit an arrest reflects the state's interest in protecting the safety of the public by taking wrongdoers off the street and in collecting the evidence that wil be found incident to arrest. There's nothing trespass-related about that.
1.14.2008 2:34pm
tbaugh (mail):
I think this was an excellent question by the Chief Justice:

"Counsel, if we assume, contrary to your footnote 13, that the exclusionary rule is implicated in this case, could you explain why, under the Federal Constitution, there should be imposed on the State an exclusionary rule for a violation of State law when State law does not impose an exclusionary rule for the violation of its law?"

Moore's position would mean, it seems to me, that if even if the state had included within the statute, or had case authority for the proposition, that "violation of the statute shall not be grounds for exclusion of evidence," only a violation of the Constitution requiring exclusion, the exclusionary rule would still necessarily apply because the state-law violation is automatically also a 4th Amendment violation. Even a state statute requiring more than probable cause for arrest would, if violated, require suppression under the 4th Amendment, even if probable cause existed, because the "unauthorized" (under state law) arrest would be a Fourth Amendment violation.
1.14.2008 3:09pm
Prufrock765 (mail):
It seems odd that there is no remedy offered by the State Constitution here. It is the state that has decided that no arrest should occur. One would think that the state would go the next logical step and say that no search incident to the arrest should be countenanced.
Conversely, if VA gives no relief, it seems perverse that the US Constiution should do so.
Are there other jurisdictions for which such a serious offense is removed from the class of arrestable crimes?

My guess is that this odd statutory provision derives from some episode where a legislator or his kid got arrested for this crime.
1.14.2008 3:24pm

Yes, that seems to have been what the Supreme Court concluded in Di Re. Of course, Justice Jackson's opinion in Di Re may no longer be hip to the Justices, in which case out it goes. All hail the living Constitution....
1.14.2008 3:35pm
tbaugh (mail):

Don't you find it at all odd that a state could be in the position of saying, "well, we want to provide some additional requirements for arrest beyond the 4th Amendment as a matter of state law, but we don't want an exclusionary sanction to apply if they're violated, but we can't do that, so we'll just forget about it then."

Don't mean to duck Di Re (you and Chris have gone into that in some detail) but haven't thoroughly reviewed it. If it truly requires the above result, might it be wrong?

I agree from the transcript it didn't appear to go well for Moore, but you never know.
1.14.2008 3:51pm

If a state wanted to do that, they would have several options. Most obviously, they could write the law so that an officer who makes the arrest is not acting ultra vires. For example, they could just enact the rule as a matter of policy handed down by the police rather than legislative law banning arrests in certain situations.

As for whether Di Re is wrong, I think it depends on what you think the Constitution means. Di Re seems consistent with original intent, it was the unquestioned view of the Court for at least a hundred years (and of other courts going back much longer), and was a rule embraced by Learned Hand, Robert Jackson, etc. In my view that pretty much means it's correct. On the other hand, if you take the Constitution to mean "whatever seems like a good idea to me right now," then perhaps Di Re is wrong. That really depends on how you look at it, and reasonable people could disagree on that.
1.14.2008 4:05pm
tbaugh (mail):

Nope, I'm not a living constitutionalist. But neither do I hold a strong view of stare decisis. If Di Re is right as a matter of original understanding, then so be it. I'm just not convinced.

Is there not an argument that, despite its discussion of state law regarding arrest, Di Re in the end found that the arrest was justified by nothing—neither a crime committed in the presence of the officers nor probable cause?

"It is admitted that at the time of the arrest the officers had no information implicating Di Re and no information pointing to possession of any coupons, unless his presence in the car warranted that inference. Of course they had no information hinting further at the knowledge and intent required as elements of the felony under the statute."

I will desist and await the opinion.
1.14.2008 4:22pm
Chris B. (mail):
In terms of a pure headcount it seemed like possibly an interesting breakdown. Souter and Breyer were somewhat surprisingly quite skeptical of Moore's position (on both fronts), while Scalia seemed to buy-in somewhat to the distinction between "arrestable" and "non-arrestable" offenses with his janitor hypotheticals (i.e. no authority to arrest). But then he didn't seem so receptive on the other rationale. It was also ambiguous where Breyer stood on that ground as while, though he was hostile to the search incident to an arrest argument. Kennedy was quiet but obviously was concerned with Greenwood and some of those other cases.

Could be an interesting breakdown of Justices with the two possible grounds that Moore is arguing. From the cold transcript I couldn't tell if Goldstein's main argument about whether the arrest itself was constitutional or not was simply kind of deferred on or bored the Justices. I think Goldstein was concerned that they were not all grasping the distinction between his arguments and he tried to articulate it a few times.

And as far as Di Re/Johnson/DeFillippo, I'm pretty certain none of the Justices had actually read those cases yet and Goldstein mentioned them enough times to probably ensure that they will be a large part of the focus of whatever opinions and internal memoranda get passed around. I would think to generalists like the Justices that Fourth Amendment cases see a bit more action post-argument than some others since there's just such a large swath of cases to be looked at and fit together.

As I've said previously, Di Re by its terms is a supervisory case, though a nebulous one since I'm pretty certain that, assuming say that it involved a federal officer instead of a state officer, a Court would have simply asked whether the officer had probable cause under the Fourth Amendment to arrest, rather than searching first federal, then state law to find the standard for arrests. I think Dunaway v. New York and makes that clear for how Di Re would have been decided later. Second, it's a bizarre rule too to say in the context of a traffic stop that leads to an arrest, where we know the traffic stop is solely a federal law matter whereas Moore's rule/this reading of Di Re would say that at some point it may transform into a state law matter.

And third, for a less principled distinction for Di Re to apply it would still have to be extended to the state law context, since Di Re was about a federal crime and a federal prosecution, where they looked to the federal law which pronounced the "principle" that the state law of arrest should govern. Here it is a state crime and state prosecution of course. Kennedy indicated as much when he made the point about Johnson/Di Re being limited to federal prosecutions and Goldstein being down to "the other three cases." And I would be shocked that anyone reading DeFillippo would honestly read its dictum that "Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." DeFellippo explains what it meant by that later, stating: "The ordinance is relevant to the validity of the arrest and search only as it pertains to the 'facts and circumstances' we hold constituted probable cause for arrest." Judge Posner, quoting and citing DeFillippo explained the significance of this language: "[T]he legality under the Fourth Amendment of an arrest for violating state law depends on that law in the following sense: there must be probable cause to believe that a state crime has been committed." Ryan v. County of DuPage 45 F.3d 1090, 1093 (7th Cir. 1995).

Anyway, in my view the whole game is the arrest. I don't think the search incident to arrest distinction is principled in theory, practice, or based on this precedent. But we'll see.
1.14.2008 4:41pm

In Di Re, the New York statute required "reasonable grounds" -- the Court was determining of those reasonable grounds existed. I don't know what the New York law was on whether reasonable grounds was the same as probable cause; notably, DiRe was decided before the Fourth Amendment was "incorporated" and applied to the states, so there was no reason for the state statute to match the constitutional rule.
1.14.2008 4:43pm
Chris B. (mail):

That is part of the SG's position on Di Re. After looking to state law the Court found that the NY statute required a showing of "reasonable cause" before one could arrest, and the Court then found that such "reasonable cause" was lacking. The SG argues that the Court has previously indicated that such "reasonable cause" and probable cause are one in the same, so the case can simply be understood as a case where the officer's lacked probable cause, its discussion of state law notwithstanding.
1.14.2008 4:43pm
Chris B,

Thanks for the comment -- yes, the vote lineup may end up being pretty unusual. This is a case in which you want to know where Justice Thomas is; sometimes he joins Scalia when Scalia is in his limiting-government mode (Kyllo) and sometimes he isn't (Thornton).

Also, I'm curious -- when you say that Di Re is "by its terms" a supervisory powers case, what do you mean? As I noted before, Di Re doesn't say it is a supervisory powers case, or even cite a single supervisory powers case. Or was I missing something?
1.14.2008 4:50pm
Chris B. (mail):
Section 177 of the NY statute in Di Re lists "reasonable cause," but the opinion alternately refers to reasonable cause, reasonable grounds, and "probable grounds." ("Assuming, without deciding, that an arrest without a warrant on a charge not communicated at the time may later be justified if the arresting officer's knowledge gave probable grounds to believe any felony found in the statute books had been committed, we are brought to the inquiry whether the circumstances at that time afforded such grounds.")
1.14.2008 4:52pm
Chris B. (mail):

I fleshed it out more in the comment section to the other post before it vanished, but all I meant was this: In my humble view, if you simply read Di Re in a vacuum its reliance on state law and the statutes at issue and its absence of Fourth Amendment discussion very much point to the case being a supervisory case. But I don't mean to imply that there was a hidden passage wherein Justice Jackson announces "P.S. This is a supervisory case!" I also agree that your reading of the lower Court opinion and the SG's brief indicate that they thought this line of analysis was somehow connected with the Fourth Amendment. Thus I find it telling that Justice Jackson doesn't explicitly ground that argument in the Fourth Amendment. You forcefully counter that, in light of that other stuff, he didn't have to. But I still say that, looking just at Di Re, as tbaugh indicated, it's tough to justify as a straight up Fourth Amendment case, or at least hard to reconcile with later cases establishing probable cause as the inquiry, especially since Di Re is a federal prosecution.

But that leads down your point of whether Di Re is consistent with the original understanding or whether those later cases like Dunaway were evidence of a willy-billy "living constitution" approach. I find all of that quite interesting though somewhat vexing, and I wouldn't be surprised to see the Justices give up on answering those difficult yet fundamental questions and go for what they perceive to be "the best" rule. Which then raises the question of how Judges should be deciding cases in the first place (Enter Bickel, Posner, Skelly Wright, etc.), and we've got a new set of problems.

Maybe I'm overthinking that aspect of it. At this point I just hope the Justices engage the question we're discussing in their opinions. (And I'd love to see some other scholars jump in on this as well. Again, in all seriousness I appreciate the thoughtful analysis Orin.)
1.14.2008 5:00pm
tbaugh (mail):

By the way, an unsolicited testimonial: the level of discussion by the bloggers here (as well as the comment discussion---usually!)makes the Volokh Conspiracy, along with Scotusblog and Howard Bashman's How Appealing, a necessary part of the day (generally, multiple times). You all are invaluable resources.
1.14.2008 5:03pm
Chris B, Tbaugh,

The appreciation is very much mutual -- thanks for the excellent discussion.
1.14.2008 5:25pm
David Schwartz (mail):

Do you have any problem with a State being in the following position: they want to have a ballot initiative process, but they don't want to allow blacks to vote in it. But they can't have initiatives without allowing vote regardless of race, so they'll just not have ballot initiatives.

There are plenty of cases where once the State creates a right or rule, the Federal constitution creates consequences for that right or rule. The State doesn't have to create the rule, but once they do, it has its consequences.

They don't call it a search pursuant to a lawful arrest for nothing.
1.15.2008 12:59am

In the first half hour, the Justices...appeared rather bored. Several seemed to be asking questions just to fill up time.

That sounds like a great premise.
Scalia: OK, me vs Souter in a knife fight. How long would he last? I give him 8 seconds.
1.15.2008 1:22am
tbaugh (mail):
David Schwartz:

I don't think your analogy is applicable; I would agree that a state couldn't say "the constitution requires arrests on probable cause, but we are going to require arrests on clear and convincing evidence except for blacks, who can be arrested on probable cause." But to add a noninvidious "extra" layer of protection to a core constitutional requirement across the board as a matter of state law should remain a matter of state law. There are states who have statutes saying arrests for misdemeanors must be for misdemeanors committed in the officer's presence, but hold if the arrest is made on probable cause, no exclusion because only the statute but not the constitution has been violated, as the arrest was on probable cause. If the Virginia Supreme Court is right the statutory violation is a constitutional violation, and the state must apply the exclusionary rule. Certainly one can take the view that that's the way it is; I disagree that to avoid a 4th Amendment violation and application of the exclusionary rule against its will the state should have to say "OK, we change state law to allow arrest on probable cause for a misdemeanor."
1.15.2008 7:36am