"Catch and Release" Tactics and Virginia v. Moore:
I've been thinking more about Virginia v. Moore, the Fourth Amendment case I have blogged a lot about in the last few weeks. Here's a question for those readers following the case: Am I right that under Virginia's theory of the case, federal agents could make arrests for violations of state law? Sure, the agents couldn't actually bring charges themselves: They would have to arrest the target, search him, and then let him go. But unless I'm missing something, it seems plausible to me that the state's theory would allow the federal agents to use this "catch and release" tactic. After all, the arrest would be based on probable cause to believe a crime has occurred. If probable cause is enough, then the arrest and subsequent search should be fully constitutional.
Why does this matter, you wonder? Well, there are two reasons. First, I would think agents would have an incentive to use this catch and release tactic in some settings if it is permitted. For example, imagine an FBI agent is investigating a suspect for narcotics smuggling. He can just stop the suspect for driving 36 in a 35, arrest him for speeding under state law, and search him for evidence or drugs. If no evidence is discovered in the search, then the officers will just let the suspect go and plan on getting him next time. Under the state's theory, as I understand it, this is perfectly okay: The arrest is based on probable cause, and the search is incident to a valid arrest because the arrest is based on probable cause. On the other hand, if the FBI agent uncovers evidence of a federal offense during the search incident to arrest, he can either bring in the target into federal court on the basis of the new evidence or let him go and keep the evidence for later.
The second reason is that the "catch and release" tactic would seem to be relevant under Justice Souter's reasoning in Atwater v. Lago Vista. Justice Souter invoked the notion that arrest powers would be subject to political checks by the sovereign that enacted the relevant law:
Off the top of my head, I gather that this would be okay under the state's theory of the case. After all, the agent would have probable cause to believe a crime had been committed, and that's enough. Am I wrong about this implication of the state's theory? Or perhaps Virginia (or the United States) would say that probable cause is enough only if the arresting officer is an agent of the sovereign that has prohibited the conduct?
UPDATE: I substantially amended the post shortly after posting it. In ligt of that, I have deleted a few comments that addressed a part of the post that was only up for a few minutes. My apologies for the lost effort on the part of those commenters.
Why does this matter, you wonder? Well, there are two reasons. First, I would think agents would have an incentive to use this catch and release tactic in some settings if it is permitted. For example, imagine an FBI agent is investigating a suspect for narcotics smuggling. He can just stop the suspect for driving 36 in a 35, arrest him for speeding under state law, and search him for evidence or drugs. If no evidence is discovered in the search, then the officers will just let the suspect go and plan on getting him next time. Under the state's theory, as I understand it, this is perfectly okay: The arrest is based on probable cause, and the search is incident to a valid arrest because the arrest is based on probable cause. On the other hand, if the FBI agent uncovers evidence of a federal offense during the search incident to arrest, he can either bring in the target into federal court on the basis of the new evidence or let him go and keep the evidence for later.
The second reason is that the "catch and release" tactic would seem to be relevant under Justice Souter's reasoning in Atwater v. Lago Vista. Justice Souter invoked the notion that arrest powers would be subject to political checks by the sovereign that enacted the relevant law:
So far as [arrests for minor offenses] might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U.S., at 55—58, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release, see Tex. Tran. Code Ann. §543.002 (1999) (persons arrested for traffic offenses to be taken “immediately” before a magistrate). Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. . . . It is, in fact, only natural that States should resort to this sort of legislative regulation, for, as Atwater’s own amici emphasize, it is in the interest of the police to limit petty-offense arrests, which carry costs that are simply too great to incur without good reason. See Brief for Institute on Criminal Justice at the University of Minnesota Law School and Eleven Leading Experts on Law Enforcement and Corrections Administration and Policy as Amici Curiae 11 (the use of custodial arrests for minor offenses “[a]ctually [c]ontradicts [l]aw [e]nforcement [i]nterests”). . . .If agents are permitted to use a catch-and-release tactic, using state criminal law and not being limited by any state law restrictions, then these checks would seem to go away. First, there would be no check by a magistrate, because the federal agents would never bring in the target. Second, the state law restrictions wouldn't apply to the federal officers. Third, there would be no great costs of the arrests, as there would be no cases processed in court and the suspect would be set free. And fourth, there would be little political check, as the agent isn't even an official of the state that enacted the crime (and good luck complaining to the FBI about your fully-constitutional-but-really-annoying temporary arrest).
The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress.
Off the top of my head, I gather that this would be okay under the state's theory of the case. After all, the agent would have probable cause to believe a crime had been committed, and that's enough. Am I wrong about this implication of the state's theory? Or perhaps Virginia (or the United States) would say that probable cause is enough only if the arresting officer is an agent of the sovereign that has prohibited the conduct?
UPDATE: I substantially amended the post shortly after posting it. In ligt of that, I have deleted a few comments that addressed a part of the post that was only up for a few minutes. My apologies for the lost effort on the part of those commenters.
Related Posts (on one page):
- Virginia v. Moore and the Changing Role of the Fourth Amendment:
- Supreme Court Hands Down Virginia v. Moore:
- "Catch and Release" Tactics and Virginia v. Moore:
- Oral Argument in Virginia v. Moore:
- Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power:
- Why the Defendant Should Win in Virginia v. Moore:
Note that the court assumed that it was a question of Utah law whether a Utah trooper can arrest a car for displaying its plates in violation of California law (but in a manner that would have been legal if they were Utah plates).
On the other hand, I guess even under Orin's view, so long as Virginia has a statute allowing its troopers to enforce foreign criminal statutes (or simply making it a state crime to violate a foreign statute of extraterritorial effect), then there's no problem with such arrests.
Relatedly: How is Virginia's theory consistent with the dual sovereignty exception to the Double Jeopardy Clause?
As you know, the state and federal government may each prosecute a defendant for the same underlying conduct consistent with the Double Jeopardy Clause. The Court has said that each sovereign may prosecute a defendant for the same conduct because each suffers a separate injury.
What injury does the federal government suffer when a defendant violates state law? If the state and federal governments truly are separate sovereigns, then the federal government suffers no injury when a person violates state law. After all, each sovereign is separate. It is, quite frankly, none of the federal government's business.
If the Supreme Court wants to treat the state and government as truly separate entities, then such seizures are not authorized since, most emphatically, the federal government has not suffered an injury and therefore is not authorized to seize a defendant.
1. Federal agents have no general power to arrest under state law. They CAN, the same as anyone else, but it's a citizen's arrest and subject to rules governing the same.
2. No idea what rules are for search incident to arrest in a citizen's arrest, but would guess they are not very broad.
3. In fact, most federal agents can only arrest for a narrow category of offenses, their agency's specialty. The statutes only say X agents can arrest for violations of X. Exceptions were FBI and Marshal's Service, which had broad powers covering any Federal offence.
4. Agencies can cure this by cross-deputization agreements. These tend to be narrow (feds can cite for state game law violations, federal for state game law violations) because each worries about tort liability. In my time they tended toward agency wide memos of understanding to do this, to avoid human tendencies to award it as special favors to your buddies.
This is somewhat similar to your resolution "probable cause is enough only if the arresting officer is an agent of the sovereign that has prohibited the conduct" although in many states there are subtleties about which LEOs can enforce which laws.
You mean like buggery?
You mean like being found in the fellowship of Egyptians within the realm of the King, an offense punishable by death? See Edward Coke, Institutes of the Laws of Engliand (Third) at 102 (1794 Ed.)
...i guess your implying knowing who was an Egyptian was was sometimes difficult (like they didn't all hang out together or what not)
otherwise its hard to say the person didn't know he was in the "fellowship" of someone (it doesn't say presence..it says fellowship)
in any case strict liability was almost entirely absent prior to modern statutory law...wacky exceptions notwithstanding.
in contrast...victim less crimes such as blasphemy and gambling etc..have been around for a while in large numbers
For example, imagine an FBI agent is investigating a suspect for narcotics smuggling. He can just stop the suspect for driving 36 in a 35, arrest him for speeding under state law, and search him for evidence or drugs.
So what's the problem here? If the net result is a drug smuggler off the street, I call it a win. They didn't stop him for nothing, he was committing a crime, and even if the immediate cause for the arrest was relatively "trivial" in some people's view, the arrest was fully justified.
good luck complaining to the FBI about your fully-constitutional-but-really-annoying temporary arrest
In my view, there is no basis for complaint! If you don't want to be arrested for a "state" crime, don't commit that crime! If you are violating both federal and state law, don't bellyache to me just because you were first arrested for one rather than the other. In a sane world, if a federal officer arrested someone for a "state" crime, the arrest would not be "temporary" - the perpetrator would be appropriately punished.
But where is the probable cause for the drug search? This wouldn't meet 4th Amendment criteria, generally speaking. Speeding is hardly enough to give probable cause for a drug search. Usually the trooper has to at least lie and say they saw a suspicious bulge in a pocket or a furtive gesture by the arrestee that made them fear a weapon. A decent state constitution would prevent that. E.g. The Vermont state constitution has been found to uphold a motorist refusing to be asked to exit their vehicle without more than a mere traffic violation. A traffic stop can't be used as a fishing expedition. Some state constitutions are interpreted to a higher (more protective) standard than the US one.
The problem is that you commit about 50 state crimes every day, especially if you happen to drive a car. Perhaps you think you need to be locked up and put away, and you are frustrated that no one has arrested you recently?
That certainly isn't federal law, and federal officers aren't bound by state constitutions whether they are decent constitutions or indecent ones.
I also think you underestimate the political opposition that would be generated by federal officers' encroachment on state officers' "turf."
I gather in your view there is no Fourth Amendment violation because the Fourth Amendment does not apply to the states, and the "incorporation" of the Fourth Amendment through the Due Process clause was a judicially created doctrine several layers removed from the text of the Constitution? Or is that judicially created doctrine acceptable to you -- and if so, why?
As for Moore's argument, it's just what the Supreme Court of 1948 found obvious in Di Re -- no modern innovations going on here.
I haven't given it much thought, but if all this is done under some sort of cross-deputization agreement, I think I'm not worried about it.
In reality, the federal narcotics officers will only want to actually move against the target when they are fairly certain that he presently possesses the drugs. The fact that the constitution may permit them to act on mere probable cause of any crime having been committed doesn't eliminate their other incentives to wait for more certainty.
officers in my agency work task forces with feds and are sworn in with limited special agent (special special agent, i guess) powers when they do so. similarly, feds on the task force may not be sworn in as local/state/county (as far as i know), but can target their guys when working with us, for local crimes.
however, WA as a state prohibits pretextual stops fwiw, whereas federal law doesn't. that would presumably be an issue for infraction stops if they were just using it as pretext.
in most jurisdictions, speeding is a civil infraction, and thus you can't arrest or search incident to arrest.
" Usually the trooper has to at least lie and say they saw a suspicious bulge in a pocket or a furtive gesture by the arrestee that made them fear a weapon."
no, usually the trooper tells the truth. fwiw, neither a bulge nor a furtive movement justifies a SEARCH , but it does sometimes justify a FRISK. the anti-cop bigotry never stops!!! i feel oppressed :)
I think whether incorporation is such a doctrine is a fair question. At any rate, incorporation does not itself create substantive rights or remedies; it simply dictates against whom those rights and remedies apply. I concede that the Fourth Amendment has been applied to state actors, but the incorporation makes sense only as it binds the state actors by the federal constitution. Otherwise, States can legislatively manipulate the countours of the federal constitution, at least within their own jurisdictions. While this thinking may not be innovative, it is still too attenuated.
In addition to Prof. Kerr's point about that not being federal law, there are other state constitutions that go the exact opposite way of what you term "a decent state constitution." California for example has the "Truth in Evidence" provision which limits the exclusionary rule to only what is mandated by the U.S. Constitution. So Prof. Kerr's example is a very real possibility in the biggest state in the country (that is if SCOTUS sides with Virginia). I'm not saying whether or not that is a good thing but it is something to consider.
i like penn vs. mimms
"Here, it is clear that the officers had reasonable suspicion to stop the vehicle: its tags were expired. And, the Court held, it is always reasonable during a valid vehicle stop for an officer to order the driver of a vehicle to get out of said vehicle for a face-to-face confrontation WITHOUT REASONABLE SUSPICION THAT THE DRIVER IS A THREAT TO THE OFFICER. This is so because the Supreme Court is, in a way, officer-survival oriented: "...it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties""
http://www.jus.state.nc.us/NCJA/legmar94.htm
fwiw, asking (or ordering) a driver out of a car is not just for fishing action. in many cases, it's superior officer safety, even in a mere traffic stop. when i do t. stops with multiple occupants, have to watch ONE person vs. 4.
penn. vs mimms is good law imo.
Scalia says no such thing, of course, although it is a surprisingly common misrepresentation of Justice Scalia's Hudson opinion to try to make Scalia look silly. His point was that under the "balancing approach" of the suppression remedy, there was no need for a new constitutional suppression remedy for knock and announce violations. I'm not sure how that is relevant to Moore.
If you find our federal system, with multiple levels of independent government, to be too bothersome, may I recommend a move to France? They have a nice unitary system of government. So, these days, does the UK, de facto if not exactly always de jure.
1) That's generally limited to felonies or breaches of the peace.
2) At least in my state, most traffic violations are civil matters. Sorta hard to envision a citizen's arrest on a civil matter. Even if we can, how does the federal agent write the ticket?
3) Which also leads me to wonder where an LEO's power to stop for a civil matter comes from? I suppose it might be considered something less than an "arrest," and hence permissible as a step in processing a civil penalty, but it does require re-thinking.
Whit, do you have a problem when a suspect (driving alone) takes his keys and locks the car doors behind him?
if you mean, during a traffic stop, as he exits the car, assuming he is alone?
no. doesn't bother nme
we've already gone over this. :)
it is a seizure, not an "arrest" (in the sense of formal or custodial arrest). arrest is often used as a synonym for any DETENTION, vs. the other meaning. arrests, in the sense of formal/custodial require probable cause of a crime. seizures do not
the 4th says all SEIZURES must be, however, reasonable.
traffic stops (or pedestrian stops) for civil infractions are reasonable.
also, there are NUMEROUS cases where seizures are reasonable even w/o infraction OR crime reasonable suspicion - community caretaking, freezing a scene upon arrival, etc. etc. etc.
Also, in my Virginia Practice course I believe we were taught that in Virginia a host of federal officers are empowered by statute to make arrests (Coast Guard etc) for state offenses. Would that mean that the "nightmare scenario" already exists (at least in Virginia and other states with similar statutes)? I don't know of federal law enforcement running rampant on minor violations of state ordinances, but perhaps I simply haven't noticed.
Wow, that was astonishingly non sequitur. I thought the "problem" in this thread was that federal agents could make arrests for violations of state law. Now apparently the real problem is that there are too many state laws. But why aren't you crusading against the real and pervasive evil of ordinary people being pulled over every day for arbitrary state crimes? Why are you focusing on a scenario that can only occur in a negligibly small number of cases (federal criminals being stopped for state reasons)?
If I am guilty of a federal crime, and get pulled over for a state traffic offense, am I any less a federal or state criminal for all that there are a large number of state traffic offenses? No. I am guilty of both and should be punished for both. It is logically absurd to put a firewall between federal and state law enforcement, and it is equally absurd not to prosecute a guy for a federal crime just because he was picked up (accidentally or intentionally) for a state crime. This only creates a loophole that criminals will try to exploit.
I don't get pulled over very often, but I can assure you that I have never been pulled over for a state crime that I did not know existed and that I did not know I was violating. Yes, I speed, on purpose, usually because that's how fast everyone's going, and very rarely I get busted. I don't feel sorry for myself when I do (them's the breaks), and I don't feel sorry for anyone guilty of other crimes who gets apprehended because they were pulled over for a traffic offense.
i have a REAL problem with feds enforcing state law.
Why? As Joe Citizen, I want bad guys put away, I don't care who does it or who gets the credit.
People guilty of state felonies get caught all the time due to traffic stops. This is a good thing! It is also a good thing if traffic stops lead to those guilty of federal crimes being caught.
If you find our federal system, with multiple levels of independent government, to be too bothersome, may I recommend a move to France? They have a nice unitary system of government. So, these days, does the UK, de facto if not exactly always de jure.
If the practical effect of this approach is to put more criminals in prison where they belong, I'm all for it. I've never said we can't learn anything from the Europeans!
officers can arrest for CRIMES, not civil infractions. as said before, in most jurisdictions, speeding is a infraction, not a crime.
if there is a crime, they can arrest *(with some exceptions like in some states, many misdemeanors can only be arrestable if committed in officers presence, etc.)
i find that this is one of the most common misperceptions here (and elsewhere) - not understandign the difference between crimes and infractions. both can result in officer seizures. only the former are arrestable.
"Why? As Joe Citizen, I want bad guys put away, I don't care who does it or who gets the credit. "
and as joe cop, so do i. but our system specifically does not have a federal police force. it is part of our unique federal republic. most countries do. we don't. and i want to keep it that way.
most crimes are not federal. federal power is already too extended, and we don't need to extend it more
This seems far more important to the idea of whether the arrest itself is constitutional rather than the Di Re/search incident to a lawful arrest exception portion. In any event though if Va v. Moore comes out and allows both federal agents and janitors to arrest people for state offenses, we'll have more problems than just the humorous offshoot of some Charles Bronson-esque janitors arresting folks.
so what?
it doesn;'t create a problem. citizens don't enjoy the immunity that cops do for claims arising from those arrests, and most people don't use it very often.
i used to work
and of course once the cops arrive, they are not going to 'take' the arrest unless it's rock solid.
i used to work as a cop where this was how it went. WE couldn't arrest for a theft (misdemeanor) not in our presence, but citizens could. so, every misdemeanor shoplift WAS a citizen;s arrest.
Once again, I find myself agreeing with you and I dont' like it.
He also says;
Once again, if everybody seems to think cops lie, isn't it possible that you are the exception rather than the rule?
As to the search or frisk, you are correct. You ever train other LEO? Cops here seem to think a frisk allows them to open envelopes, wallets, Copenhagen cans etc.
everybody doesn't think that check the stats. nationwide, cops are among the more respected of professions, WAY above lawyers fwiw. not slagging, them's just the facts.
AMONG the present company that is not so much the case. don't extrapolate from a niche population to the population at large.
most people think cops are more honest than lawyers. again, that's the reality. just not in here.
" You ever train other LEO?"
not in constitutional law stuff.
" Cops here seem to think a frisk allows them to open envelopes, wallets, Copenhagen cans etc."
hmm. um... not
I don't think everyone thinks all cops lie, they think some cops do.
Of course, they're wrong...just kidding whit.
A surprisingly thin defense. Here's what he actually argued:
So, you tell me how this isn't essentially a judge concluding that his (misinformed as it happened, at least based on his own citation) opinion of police professionalism is relevant to whether or not a rule to deter illegal activity by the police is necessary or not.
As Randy Balko has shown Scalia's reasoning has been repeated in other court cases. Ironically, including one in which the very officers in question were not disciplined at all: one was even honored with a “Cop of the Year” award. In fact, the real career killer in many police forces isn't abusing someone's rights, it's reporting on the misconduct of fellow officers.
In California it's a "crime" to have an air freshener hanging from your rear view mirror. Would it be good for society for federal agents to arrest people, impound their cars (it'll cost you at least $250 to get your car back), and put people into jail for a few hours for such offenses?
The problem with Virgina's position is that it takes pretextual searches too far. It is bad enough that the Court has allowed pretextual searched. Extending Whren still further is especially troubling.
Incidentally, you will likely never be stopped for having an air freshener hanging from your rear view mirror. Those sort of stops are reserved for minorities. Because, as we all know, if you have three black of Hispanics in a car, there is surely something illegal going on in there.
in terms of INFORMATION sharing, i readily agree. information sharing between agencies IN GENERAL is terrible. it is even worse between state (locals, county, etc.) and the feds.
that's common knowledge and is even reflected in most cop shows (uh oh... here come the prima donna feds).
i have no problem with more information sharing between feds and locals. that could GREATLY improve public safety, criminal apprehension, etc.
the issue of ACTUAL policing should almost always be left to locals. the FBI etc. are not "police agencies".
but intelligence and information sharing even among locals is terrible. i routinely drive in different agency's jurisdiction, and i dont even have their RADIO frequency in my car (they are not programmed into our radios). i could have a robbery in progress 50 ft from my location, with the nearest officer from that city 10 minutes away, and i would not even know. this is bad for officer safety as well as protecting the citizens.
a lot has to do with political posturing, selfishness, protecting assets (information is power) etc.
when bad guys do crimes in multiple jurisdictions, the lack of information sharing ESPECIALLY real time is horrible.
like in so many other areas, private industry is WAY ahead of public ones. look at how, for instance, private casinos routinely share information with each other. they realize its in all their best interests to share info. law enforcement - no way
also note that a big problem in 911 was the (clinton era lawyer imposed) intelligence firewall between CIA and FBI.
nice to see the racial profiling myth continues.
repeat a lie often enough...
Precisely. I cite for instance a recent stop sign installed back home. The stop sign replaces a yield sign that used to be present for the right turn-lane. The surprising result of which is that even when 'your light' is green, you have to execute a full-stop to turn-right. Many people do not expect this.
Whit, I'm sure you are swell guy that doesn't do anything wrong, ever, while on the job but you can't seriously claim that there isn't any profiling anywhere. At the very minimum, you have to deal with Barry Cooper saying otherwise.