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Why the Defendant Should Win in Virginia v. Moore:
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.
The lawyers for Moore have much more Supreme Court litigation experience than I do, but I think this will be a tough argument. First, it is pretty serious tension with the recent Supreme Court case that really frames the Moore case, Atwater v. City of Lago Vista, an opinion allowing arrests for very minor crimes when authorized by state law. The Atwater majority opinion by Justice Souter focused on the history of the arrest power and the need for brightline rules governing the power of arrests, in contrast to the balancing approach offered by Justice O'Connor in dissent. Given that the 5-4 vote in Atwater has probably become a 6-3 with Justice O'Connor retired, I'm not sure there are more than 3 votes for a general balancing approach. Second, a balancing test is just too mushy in this setting. In my view, Justice Souter was quite right in Atwaterthat arrests need bright-line rules. Even if you say that the balancing is only of the interests that go into the rule, separate from the rule itself, it strikes me as just too uncertain an approach. Finally, from a policy perspective, the Justices may actually like the contrary rule. In light of that, I'm not sure it's the best strategy to frame the case with a go-anywhere-you-want balancing approach. Maybe there are five votes for that approach, but I'm not sure. Both Virginia and the United States try to shoo away the Di Re precedent on the theory that Di Re is about the federal supervisory power rather than the Fourth Amendment. They rely heavily on the conclusion of my co-author Wayne LaFave, who says the following about Di Re in his solo-authored Search and Seizure treatise at Section 1.5: [W]hile the issue is not free from doubt, a close inspection of the Di Re decision indicates that the use of state law there was "based on nonconstitutional considerations." . . . Particularly in light of the fact that the Court looked to state law only after finding no applicable federal law, it would appear that the Di Re Court viewed the occurrence as truly a federal (rather than a state) arrest, as indeed it was. True, the arrest was by a city detective, but it was for a federal crime, there is no indication that the detective was pursuing any state interest, and quite obviously he was acting on behalf of the federal investigator who accompanied him but who could not so act on his own behalf because he "had no power of arrest." So interpreted, Di Re is simply an instance of the court utilizing its supervisory power to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional federal arrest. With due respect to my co-author Professor LaFave, I strongly disagree. Justice Jackson was interested in the state and federal law of arrest because he needed to determine if the arrest was lawful. And he needed to determine if the arrest was lawful because the Fourth Amendment exception is the "search incident to a lawful arrest" doctrine. As Justice Jackson put it himself, "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." This was a straight Fourth Amendment question, clearly and plainly stated. More broadly, I find it unlikely that Justice Jackson would decide a case based on the federal supervisory power without saying so. Justice Jackson was a former Attorney General and an unusually articulate fellow; surely he knew how to state when he was invoking the federal supervisory power and not the Fourth Amendment. Throughout Di Re, Jackson keeps talking about the Constitution and citing constitutional precedents. He states that suppression is necessary because of a decision by "the forefathers [who] designed our Constitution." In contrast, I'm not aware of any mentions of any cases on the supervisory power. This would be a particularly odd oversight so soon after the Court's blockbuster decision on the federal supervisory power, McNabb v. United States, 318 U.S. 332 (1943). Given the absence of any mention of the supervisory power or citations to any cases on it, I don't see any reason to believe that Di Re is a case about the federal supervisory power. Finally, Virginia's brief also argues that even if it was based on the Constitution, Di Re was overruled by Elkins v. United States and California v. Greenwood. Not so. Elkins states on its face that it is a supervisory power case, not a Fourth Amendment case; Greenwood was a reasonable expectation of privacy case, not a case about the search incident to a lawful arrest doctrine. As I see it, Di Re lives, and it should pretty much settle the case of Virginia v. Moore. (Notably, this wouldn't neccessarily mean that the arrest itself violated the Fourth Amendment; the only issue raised is the "lawfulness" of the search incident to that arrest, not whether the arrest itself was constitutional.)
Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power:
The comment thread in my post on next week's oral argument in Virginia v. Moore led to an interesting exchange about whether the Supreme Court's 1948 decision in United States v. Di Re, 332 U.S. 581 (1948), was a case decided on Fourth Amendment grounds or as an application of the federal supervisory power. Oddly enough, this ends up being an important part of the Moore case. If Di Re was a Fourth Amendment decision, then it largely answers the questions for the Court in Moore; if it wasn't, then Di Re is irrelevant. The comment thread led me to take a closer look at the history and context of Di Re, and that research leads me to conclude with a very high degree of certainty that Di Re was a case on the Fourth Amendment and not about the federal supervisory power. In this post, I want to explain why. First, the facts. In this case, an informant told federal investigators that a person named Buttitta would be selling illegal gasoline coupons to a person named Reed at a particular place and time. The federal investigator convinced a local cop to go with him and arrest the two men. When they went to make the arrest, however, there were three men present, not two: Buttitta and Reed were joined by a third man, Di Re. The cop arrested all three, and a search of Di Re yielded the illegal coupons. Di Re was convicted of possession of the coupons. On appeal before the Second Circuit, the case drew one of these remarkably stellar panels of judges that only the Second Circuit could assemble back in those days: the presiding judge was Learned Hand, and he was joined by two former Deans of Yale Law School, Thomas Swan and Charles Clark. Judge Hand wrote the majority opinion for the Court of Appeals. See United States v. Di Re, 159 F.2d 818 (2d Cir. 1947). Judge Hand's majority opinion states at the outset that the only question in the case is the Fourth Amendment: "The only question necessary to discuss upon this appeal is whether the documents upon which his conviction was based, were obtained in violation of the Fourth Amendment." Specifically, "If the arrest of DiRe was lawful, the search of his person was lawful, and the conviction must be affirmed; if the arrest was not lawful, the search was unlawful, and the conviction cannot stand." The parties agreed that the lawfulness of the arrest was governed by the New York arrest statute, Section 177 of the New York Code, which restated the common law rule for powers of arrest: A peace officer may, without a warrant, arrest a person,
1. For a crime, committed or attempted in his presence;
2. When the person arrested has committed a felony, although not in his presence;
3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. Judge Hand thus framed the question to be decided as follows: We shall assume, arguendo, that Gross had authority under Sec. 177 of the New York Code of Criminal Procedure to arrest Buttitta and Reed, although the crime was not against the State of New York; We shall similarly assume that the federal law determines whether the crime was a felony within the meaning of Sec. 177, and that because a conspiracy is a felony under federal law, Gross's authority was measured by Sec. 177(2) and gave him power to arrest Buttitta and Reed. By a parity of reasoning his authority to arrest DiRe must rest upon subdivision three of Sec. 177, that is, Gross must have had reasonable ground for thinking that DiRe was a party to the conspiracy of Buttitta and Reed, which was in process of execution before his eyes. Judge Hand then parsed the facts of the case and concluded that there were no reasonable grounds to conclude that Di Re was a co-conspirator of Buttitta or Reed. Di Re was just a guy in a car; there was no reason to think he was in cahoots with the other two even thought it later turned out that he was. Judge Clark dissented. Clark agreed with how Judge Hand had framed the issue: "The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269." He also agreed that the question was whether the arrest was lawful under "the general and traditional rule of arrest without a warrant by a peace officer . . . aptly stated in the N.Y. Code of Criminal Procedure, Sec. 177." But Judge Clark argued that Judge Hand misapplied the standard. Hand was requiring too much cause; a common sense view of the facts was that the officers had reasonable grounds to think Di Re was also involved. The Supreme Court granted cert, and the SG's brief made two arguments in favor of a reversal. The main argument essentially repeated Judge Clark's argument that under a common sense view of the facts, an officer had reasonable grounds to think that Di Re was in cahoots with the other two guys in the car. The brief was clear that this was a question of the lawfulness of the arrest under New York Code Section 177, which would make the arrest lawful and thus the search incident to a "lawful" arrest:
Given a lawful arrest, it is undisputed that the body and clothing of the arrested person may be subjected to search; this has been many times held by this Court, nor has the principle been disputed in any of the recent cases dealing with the precise scope of the Fourth Amendment's interdiction of "unreasonable searches and seizures." Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Harris v. United States, No. 34, Oct. T. 1946, decided May 5, 1947, pp. 5-6 of slip opinion; see People v. Chiagles, 237 N. Y. 193 ( per Cardozo, J.); compare Franfurter, J., dissenting in Davis v. United States, 328 U. S. 582, 609-610; Jackson, J., dissenting in Harris v. United States, supra, p. 2 of slip opinion; Murphy, J., dissenting in Harris v. United States, supra, p. 4 of slip opinion.
The inquiry here, therefore--and the only inquiry--is whether respondent was lawfully arrested. We agree with Judge Clark below that he was. According to the SG's brief, "The fundamental error in the majority opinion below is that it tests the validity of the arrest, not by standards of reasonable deduction, but by standards of substantive guilt." Judge Hand had just set the bar too high. The arresting officer only indeed "reasonable grounds" to satisfy the state statute and make the arrest lawful under state law, and he had it. The SG's brief then made a new argument, although it was made only briefly and reads like an afterthought. The brief noted that under the automobile exception case, Carroll v. United States, 267 U.S. 132 (1925), probable cause to search a car justified a search of the entire car. The SG reasoned that a right to search the car implied a right to search recent occupants of the car; because Di Re had been in the car, the automobile search justified a search of the car. Di Re's brief matched the SG's brief on both points: It argued that the automobile case couldn't be so extended, and that (following Judge Hand's analysis) the arrest had violated the New York statute because no reasonable grounds existed to think Di Re was guilty of a felony. The case was argued in October 1947, with Frederick "Fritz" Wiener arguing the case for the United States. At oral argument, the Justices seemed to agreed that the arrest had violated New York state law. However, the Justices focused on a different part of the New York arrest law. In particular, Justice Frankfurter asked Wiener why the arrest didn't plainly violate New York Code Section 180, which required the arresting officer to state the reason for the arrest and state his authority to make the arrest. There wasn't a record on this and it hadn't come up before, but the several Justices (including Frankfurter) focused on it heavily. Following the oral argument, the SG's Office filed a short supplemental memo in response to Justice Frankfurter's questions. The SG's supplemental memo was divided into two parts. The first part reasoned rather lamely that Section 180 must not be an issue, mostly because it didn't really occur to anyone below. The second part of the supplemental memo threw a 'Hail Mary' pass. Realizing that they were going down in flames with the state law argument, the SG argued that the lawfulness of the arrest should be a question of federal law instead of state law. Specifically, the SG's memo argued that the lawfulness of federal arrests should be a question of federal common law. The memo then argued that there wasn't any federal common law reason to say that the arrest in these federal arrests shouldn't be allowed. Okay, let's finally return to the opinion Justice Jackson wrote for the majority in Di Re. Justice Jackson starts off rejecting the expansion of the Carroll doctrine. Jackson concludes: "We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." Jackson then turns to the search incident to a lawful arrest doctrine: "The other ground on which the Government defended the search of Di Re, and the only one on which it relied at the trial, is that the officers justifiably arrested him and that this conferred a right to search his person. 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." Jackson states that some of the Justices were persuaded that the arrest was unlawful — and the search therefore unconstitutional — on Section 180 notice grounds alone. But Jackson concludes that it would be too complicated to base the Court's decision on that ground given that it wasn't raised below: Inasmuch as the issue would lead to exploration of the law as to waiver when the defense was not raised in either court below, or indeed by the petition here, and as to applicability of he statute if, as the Government contends, lack of express declaration was unnecessary because circumstances supplied the required information, we do not undertake to determine on this record whether Di Re's arrest satisfied this provision of the New York law. Jackson then had to look at whether the lawfulness of the arrest was to be governed by Section 177, as the parties and lower court judges had assumed, or whether there was a federal common law of arrest that determined "lawfulness" for purposes of the search incident to arrest doctrine, as the SG's supplemental memo had argued. This is the key section of the opinion that some (including Professor LaFave) have incorrectly read as relying on the supervisory power: We believe, however, that in 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. It's critical to understand that this passage was a direct response to the SG's supplemental memorandum. That memorandum argued that federal arrests were governed by a federal common law standard precisely because the government realized at oral argument that the Justices were going to rule against the U.S. if they looked to state arrest law to determine the "lawfulness" of a search incident to a "lawful" arrest. Until that supplemental memo was filed, everyone involved in the case — Judges Hand, Swan, and Chase; the parties; and all nine Justices — were of the understanding that the lawfulness of the arrest for the purposes of the "search incident to arrest" doctrine was a question of state law. And the supplemental brief wasn't arguing any point about the federal supervisory power, which after all was only more restrictive than the Fourth Amendment and would have been bizarre for the government to raise. Rather, the SG's office introduced this notion of the federal common law of arrest to try to get around the restrictions of New York state arrest law and to find an easier standard for the government to satisfy. In sum, I think a close look at the history and briefing in the Di Re case leaves no doubt that the court was applying the Fourth Amendment and not the federal supervisory power. You need to dig into the case to see it, but I think once you do that digging you understand exactly what Justice Jackson was doing. Justice Jackson was doing exactly what Learned Hand had done in the Second Circuit — finding and applying the law governing the statutory or common law "lawfulness" of the arrest, as it answered the Fourth Amendment question of whether the following search was incident to a lawful arrest.
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.
"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: 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”). . . .
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. 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). 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.
Supreme Court Hands Down Virginia v. Moore:
Today the Supreme Court handed down Virginia v. Moore, ruling unanimously in favor of Virginia. Justice Scalia wrote the majority opinion; Justice Ginsburg concurred. The gist of Justice Scalia's opinion is that he can't find any authority at all suggesting that the lawfulness of an arrest under state law has ever been relevant to whether an arrest violates the Fourth Amendment. Or perhaps more accurately, he finds himself insufficiently impressed with those cases and authorities that do point in that direction. For example, he gets past United States v. Di Re by saying it was just a case on the federal supervisory power: 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. If you recall my blog post, Why United States v. Di Re Clearly Was Not A Case On The Federal Supervisory Power, you'll realize how bogus this is, but hey, that's govenment work for you. (Scalia adds a nice touch at the end of the case when he characterizes the Court's decision as "reaffirm[ing] against a novel challenge what we have signaled for more than half a century," something that I suspect Justice Jackson might have found a rather puzzling characterization.) Only Justice Ginsburg takes on Justice Scalia's mischaracterization of Di Re in her narrow concurrence; [O]ur decision in United States v. Di Re, 332 U. S. 581, 587–590 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned on the Fourth Amendment and not to our “supervisory power,” ante, at 72[fn2]
[fn2] The Court attributes Di Re’s suppression ruling to our “supervisory power,” not to “a rule we derived from the Constitution.” Ante, at 7. Justice Jackson, author of Di Re, however, did not mention “supervisory power,” placed the decision in a Fourth Amendment context, see 332 U. S., at 585, and ended with a reminder that “our Constitution [places] obstacles in the way of a too permeating police surveillance,” id., at 595. 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. I don't think Justice Jackson saw that as a choice-of-law rule not derived from the Constitution; In 1948, back before the incorporation of the Fourth Amendment, the only agents regulated by the Fourth Amendment were federal agents. At the time, such a rule would have seemed a plausible way to determine the lawfulness of the arrest, which he, Learned Hand, and the rest had understood as resting on statutory arrest law. But maybe you have to be more of a Fourth Amendment geek than any Supreme Court Justice would be to see that. And in any event, kudos to Justice Ginsburg for at least raising the Di Re issue. I plan to blog more on Moore in the future, time-permitting. Stay tuned.
Virginia v. Moore and the Changing Role of the Fourth Amendment:
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!
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.
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