In this post, I want to argue that yesterday's decision in Virginia v. Moore hides a fascinating clash: a clash between the mindset and assumptions of the pre-incorporation Fourth Amendment and the mindset and assumptions of the post-incorporation Fourth Amendment we have today. My claim is that the basic assumptions of the post-incorporation Fourth Amendment are now so deeply engrained in the Justices' consciousness that they didn't appreciate how their decision was inconsistent with pre-incorporation Fourth Amendment history. This doesn't mean that Moore was wrongly decided: The majority's rule is a sensible one for the modern incorporated Fourth Amendment. But there's a fascinating historical tale to be told about the nature of constitutional change that I think the opinions in Moore have missed. Or so I will argue; I'm not completely sure I'm right, but if not I would be very interested in knowing where my analysis goes off course.

  First, some background. As originally enacted, the Fourth Amendment only applied to the federal government and not the states. Most states had their own rough equivalents to the Fourth Amendment in their state constitutions, but the federal Fourth Amendment only applied to federal agents. At the same time, federal law enforcement was almost completely unknown until the Prohibition era in the 1920s, meaning that for the first 130 years or so of American history the Fourth Amendment was on the books but was rarely invoked and its meaning was largely unknown.

  That picture changed dramatically in two cases, Wolf v. Colorado, 338 U.S. 25 (1949) and Mapp v. Ohio, 367 U.S. 643 (1961). Wolf held that the Fourth Amendment applied to the states but that the suppression remedy did not; Mapp overruled that latter part of Wolf and held that the Fourth Amendment and its exclusionary rule applied fully to the conduct of state actors. The doctrine Wolf and Mapp invoked to get there is generally known as the incorporation doctrine; the idea was that the Court interpreted the Due Process Clause of the 14th Amendment (which did apply to the states) as implicitly incorporating the Bill of Rights protections that had applied before only to the federal government. There's a long historical debate as to how persuasive this was as a reading of the Fourteenth Amendment, but the effect of the incorporation doctrine is clear: After incorporation, the rules that before had only applied to the federal government now also applied to state officers.

  For the Fourth Amendment, this was truly revolutionary: Suddenly the U.S. Supreme Court in Washington, DC, placed itself in charge of creating uniform rules to regulate every police officer in the United States. Plus, state and local police officers did lots of things that federal agents rarely did, like "walk the beat" and the like, so suddenly the Supreme Court had to decide a lot of issues involving day-to-day police powers that had never been addressed as a matter of constitutional law.

  This takes us to the powers to make arrest and search incident to the arrest that was at issue in Moore. Today, the rules for such things are well-settled: Under the Fourth Amendment, arrests require probable cause and the power to arrest permits a search incident to a lawful arrest. Obviously so, it seems to us: It's Crim Pro 101. But if you look back at the history of the Fourth Amendment, those rules end up being of surprisingly recent vintage.

  Indeed, at the time of incorporation, the constitutional threshholds for arrest and searches incident to arrest were largely unknown. If I'm not mistaken, the Supreme Court didn't settle that probable cause provided the Fourth Amendment standard for a warrantless arrest until 1959, in Henry v. United States, 361 U.S. 98 (1959) (although it had arguably hinted at this in 1949 in the Brinegar case). Until then, various formulations of the common law standard existed that states had mostly adopted, but state standards didn't matter because the Fourth Amendment didn't apply to the states. Further, Congress didn't enact a comprehensive statute on what the legal standard for a federal warrantless arrest might be until 1956. See Public Law 728, § 104, 70 Stat. 570, July 18, 1956. For most of American history there were few federal warrantless arrests, so legislating a federal warrantless arrest standard just wasn't a major issue. As the Supreme Court summarized the federal law of arrest in 1948, "it appears that the federal legislative materials are meager, inconsistent and inconclusive."
  Until United States v. Di Re, 332 U.S. 581 (1948), that is. I've already offered a very detailed explanation of Di Re, so let me just touch on the key point unexplored in the earlier post: What makes Di Re a difficult case to understand today is that the Court was applying the "search incident to a lawful arrest" doctrine at a time when there was no Fourth Amendment law at all on what made an arrest "lawful." Indeed, there wasn't yet a federal statute, either; that came eight years later. So the Supreme Court was trying to figure out what made an arrest "lawful" in the absence of preexisting constitutional or federal statutory law on arrests!

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  What may make Di Re so puzzling to modern judicial ears is that it's hard for today's Justices to imagine the state of the law back then. Consider how Justice Scalia dealt with Di Re in his majority opinion in Virginia v. Moore yesterday:

Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589–590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589–590.

  Justice Ginsburg echoes the point in her concurrence, where she states:

The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re’s Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, “the law of the state where an arrest without warrant takes place determines its validity.” Id., at 588–589.

  What's going on? For Justices Scalia and Ginsburg, writing in 2008, the notion that Congress could change the rule must have meant that the rule wasn't based in the Constitution: After all, the Supreme Court defines the law of arrest, not legislatures. But this wasn't true in 1948, when Di Re was decided. In 1948, the only "law of arrest" out there was state law!

  Understood in historical context, Di Re is obviously a Fourth Amendment case. Its discussion of Congress's possible role makes perfect sense: The Court determined the lawfulness of the arrest based on the only source of arrest law that existed at the time. The Court then pointed out that if Congress wanted to act and create a second body of arrest law, this one expressly regulating federal arrests by statute, then of course it could do so — and then that body of law would regulate federal arrests and thus searches incident to lawful arrests. At a time before the constitutionalization of arrest law, this wasn't understood as a supervisory powers issue: Rather, it was just making the obvious point that if statutes govern something and there is no statute, a statute would govern if Congress enacted one.

  I tend to think that this history explains why the Justices today didn't understand Di Re: Di Re was written before the Supreme Court constitutionalized arrest law, and the assumption that arrest law is constitutional law has become so deeply embedded that it's hard to imagine an alternative. (I'm not immune from this bias myself, as only now do I completely understand the SG's supplemental memo that I blogged about in my earlier post. The memo wasn't a "hail mary" pass, as I had thought before, but rather was just asking the Court to develop a federal common law of warrantless arrests — a natural alternative in an era before warrantless arrest law was constitutionalized.)

 Equally importantly, the practical consequences of the Di Re case shifted dramatically with the incorporation doctrine and the constitutionalization of arrest law. To the Justices deciding Di Re in 1948, they just needed some kind of standard to determine the lawfulness of arrests; arrest law was statutory, and only the search incident to arrest doctrine was a matter of constitutional law. And the standard only mattered for federal arrests anyway, which could be made uniform with a federal statute. So it was quite sensible to decide Di Re as they did.

  But the incorporation doctrine radically changes that. If the "search incident to a lawful arrest" doctrine is keyed to the statutory law of arrest, as it was by default in Di Re, then the incorporation doctrine means that for the first time, the federal constitutional standard for searches incident to arrest would hinge — in a way not correctable by Congress — on quirky variations in state law. Further, following the constitutionalization of arrest law, there becomes an alternative way to interpret the word "lawful" in the doctrine known as "search incident to a lawful arrest": the Court can now interpret "lawful" to mean "consistent with constitutional standards," that is, based on probable cause.

  My sense is that the Justices approached the Moore case and the Di Re precedent in light of modern Fourth Amendment law: the differences between the Fourth Amendment in 1948 and today were sufficiently large that Di Re became unrecognizable and the rule it adopted no longer useful. As I said at the beginning, this doesn't mean that Moore was wrongly decided. It would have been nice if the Court had given Di Re a proper burial: Justice Scalia could have pointed out that times had changed, and what made sense for 1948 no longer makes sense today. (Hmm, maybe Roberts assigns that opinion to someone else instead.) But the Court's history and analysis of the cases that appear in the Moore case strike me as quite unpersuasive, especially the Court's treatment of Di Re.

Related Posts (on one page):

1. Virginia v. Moore and the Changing Role of the Fourth Amendment:
2. Supreme Court Hands Down Virginia v. Moore:
3. "Catch and Release" Tactics and Virginia v. Moore:
4. Oral Argument in Virginia v. Moore:
5. Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power:
6. Why the Defendant Should Win in Virginia v. Moore: