Ohio State Highway Patrol Trooper Dexter Howard, right, talks with a motorist arrested after he failed a breathalyzer test at a sobriety checkpoint in Wilmington, Ohio. As long as officers conducting such arrests have probable cause to search or seize an individual, there's no Fourth Amendment violation. PHOTO AP/DAVID KOHL
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The U.S. Supreme Court recently decided a case involving police officers making an arrest as a result of a traffic stop. The issue was whether the custodial arrest, which was a violation of state law, also violated the Fourth Amendment. The answer? No.
The Facts
In Virginia v. Moore,1 two City of Portsmouth, Va., police officers received a radio report alerting them that David Lee Moore was driving on a suspended driver s license. The officers stopped Moore and confirmed he was driving on a suspended license. However, instead of issuing a citation, which is what officers in Virginia are lawfully permitted to do in these circumstances, the officers placed Moore under arrest and took him into physical custody (in violation of Virginia law). The officers also obtained Moore s consent to search the hotel room he was staying in. After realizing neither officer had performed a search incident to the arrest after immediately taking Moore into custody, the officers performed the search at the hotel room some time after the traffic stop.2 The search of Moore s person revealed he was in possession of 16 grams of cocaine and $516 in cash.
Under Virginia law, the officers were permitted to issue a citation, but were not permitted to place him under full custodial arrest. Specifically, the Virginia law stated officers cannot arrest for driving on a suspended driver s license, like many other misdemeanors, except in cases involving persons who fail or refuse to discontinue the violation, who the officer reasonably believes are likely to disregard the summons or who are likely to harm themselves or others.3
The officers charged Moore with possession of cocaine with the intent to distribute it in violation of Virginia law. However, prior to trial, Moore s attorney filed a motion to suppress the cocaine found during the custodial arrest and subsequent search. The trial court denied the motion, and Moore was found guilty of the drug charge. He was sentenced to a five-year prison term with a suspended sentence.
Moore appealed the conviction, and the matter was eventually heard before the Virginia Supreme Court. The state court reversed the conviction, reasoning the U. S. Supreme Court s opinion in Knowles v. Iowa4 required the evidence be suppressed. In other words, because the arresting officers were permitted only to issue Moore a citation under state law, and the Fourth Amendment does not permit a search incident to a citation (as opposed to incident to an arrest), the search violated the Fourth Amendment. The officers appealed.
U.S. Supreme Court Decision
In a unanimous decision,5 the Court first addressed the history of the Fourth Amendment to determine the norms the Fourth Amendment was to preserve.6
It found no support for the notion the framers of the Constitution intended to incorporate state statutes into the Fourth Amendment. The Court asserted that where history did not provide any conclusive answer, it would analyze the search or seizure in light of traditional reasonableness standards by assessing, on the one hand, the degree to which it intrudes upon an individual s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. 7
The Court has previously held that when an officer has probable cause to believe a person committed a crime (no matter how minor), the arrest is constitutionally reasonable. The Court found no reason to change that in the instant case, even when a state chooses to institute laws to protect the privacy of citizens beyond the level the Fourth Amendment requires.
The Court cited a number of its prior decisions holding that the Fourth Amendment is not violated when a search or seizure violates state law.8 Moreover, the Court stated, A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence, unconstitutional.9
The Court went on to assert that if the Fourth Amendment protections were linked to state law, the law would vary from place to place and from time to time, 10 causing confusion. Thus, while states are free to regulate arrests how they desire, the states various restrictions do not alter the traditional Fourth Amendment protections. 11
Because the Court found the custodial arrest of Moore was legal under the Fourth Amendment, the Court found the search incident to the arrest was also legal. The Fourth Amendment has long recognized a lawful arrest carries a search incident to arrest to safeguard evidence and ensure safety.
How Does This Affect You?
The Moore decision doesn t mean street officers can violate their state search-and-seizure laws with impunity. The fact of the matter is, when an officer violates their state s search-and-seizure law, the evidence may be suppressed in the criminal matter, or they may find themselves faced with a civil lawsuit alleging a violation of the state s tort law.
However, if the officer is sued for a purported violation of the Fourth Amendment in state or federal court, the Moore decision supports an argument I ve been teaching officers for years: Any violation of departmental policy, customs or practices of law enforcement, or procedural rules does not equate to a Fourth Amendment violation where the conduct at issue involves a search or seizure. As long as officers have probable cause to search or seize an individual, there is no Fourth Amendment violation.
In other words, a violation of departmental policy is a violation of departmental policy that may be the subject of discipline ranging from an oral reprimand to termination. A violation of state law is a violation of state law, which may subject the officer to a state tort claim under state law.
However, a violation of department policy or state law will not support a federal civil rights claim of a Fourth Amendment violation under 42 U.S.C. 1983, something police officers often face during the course of their law enforcement careers.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1. No. 06-1082, 128 S.Ct. 1598 (April 23,2008).
2. The delay of the search incident to the arrest is not at issue in this case.
3. Id. (citing Va. Code Ann. 19.2-74).
4. 525 U.S. 113 (1998) (holding that police officers have no authority to search a vehicle that was stopped for a traffic violation punishable only by a traffic citation).
5. Justice Ginsberg filed a concurring opinion.
6. Moore, 128 S.Ct. at 1602.
7. Id. (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999); Wilson v. Arkansas, 514 U.S. 927, 931 (1995)).
8. See Cooper v. California, 386 U.S. 58 (1967); California v. Greenwood, 486 U.S. 35 (1988); Whren v. United States, 517 U.S. 806 (1996);
9. Moore, 128 S.Ct. at 1606
10. Id.
11. Id.
