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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.
David M. Nieporent (www):
From the "me being too lazy to check out the answer" department: were there no adequate and independent state grounds here? Does Virginia's constitution allow searches based on unlawful arrests? Or did Moore fail to raise the issue?
1.7.2008 10:59pm
Ftca - ha:
Will you be filing an amicus brief in this case?
1.7.2008 11:21pm
BruceM (mail) (www):
That's just it, the search has to be incident to a LAWFUL arrest. I don't see how a good faith argument can be made that a search incident to an unlawful arrest is not a violation of the 4th Amendment and should not result in suppression (via the fruit of the poisonous tree doctrine). It seems Di Re clearly answers this question.
1.7.2008 11:28pm
Oren:
Wasn't Olmstead reversed almost in its entirety by Katz?
1.8.2008 12:35am
OrinKerr:
Oren,

No, although that's a common misperception. The second part of Olmstead, the part about state law that Justice Holmes dissented from, is still very much alive.
1.8.2008 12:38am
subpatre (mail):
Orin's glossing over that arrests for traffic violations are arrests, whether ticketable or seizable. In this case, it's not a traffic offense, it's a misdemeanor.

"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 . . . "

This is not the whole truth. There is no prohibition, just the usual requirement of minimal physical restraint [§ 19.2-74]. Physical custody is required in some cases when the license suspension is for offenses that cause/caused harm or the officer believes that release would continue a harm.

Bottom line is that the guy was arrested and the search WOULD HAVE BEEN OK, (a Terry search would qualify) incident to a Constitutional detention.

In this case, the cops took the arrested —not to the PD or a magistrate— but to his hotel, where he was searched and the cocaine was 'found'. Oops!
1.8.2008 12:46am
OrinKerr:
subpatre,

Could you explain this in a bit more detail? Is your view then that there actually was a lawful arrest? I'm very interested in the argument, as of course it could change how I think the case should be decided.

Otin
1.8.2008 12:54am
Oren:
subpatre, the petitioner's brief concedes that the arrest violated state law.
The rule Virginia urges this Court to adopt is a modest one, which would require this Court to do nothing more than reaffirm longstanding precedent: an arrest is constitutionally valid if it is based on probable cause. If the arrest is constitutionally valid, the Constitution does not require suppression simply because the arrest violates a provision of state law. (Argument I, p11)
1.8.2008 1:47am
Oren:
OK, while your position makes eminent sense in theory what about the application? Requiring Federal judges to decide questions of state law seems quite impractical, let alone inadvisable since they are by no means experts on state law. Let me turn it around, actually, and simply ask you how such a suppression claim should proceed.
1.8.2008 1:54am
Rich Rostrom (mail):
If arrest is not permitted for unlicensed driving, how is unlicensed driving to be stopped? Can the unlicensed driver get back in his car and drive away from the traffic stop? If so, could the police then immediately stop him again?
1.8.2008 1:58am
subpatre (mail):
Moore was driving on suspended license, a jailable misdemeanor. Whether ticketed or taken into custody, the detention —for that cause— is an arrest by any reasonable meaning.

Search incident to arrest is based on (some of) the same reasoning as Terry frisks; officer safety in a limited environment. The arrest searches are more thorough because the arrested presumably did some thing unlawful, and the presumption is for a wider state action.

My objection is not to Moore's complaint, it's to the characterization of the case. This incident got real unreasonable once they headed to the hotel; more like an abduction.
1.8.2008 2:00am
subpatre (mail):
(Sorry Orin, missed answering your questions)
The arrest itself was lawful. The detention and ticketing/citation for a crime constitute an arrest. A search/frisk would have borne good fruit.

The arrest became unlawful when the cops didn't take Moore to a magistrate OR release him on citation. A search under these circumstances MAY be tainted . . . or not.

The arrest became illegal when the cops took Moore to his hotel. Hence the state's rather bald concession of unlawful arrest. This search is —even by separatist standards— not tainted, it is rotten.
1.8.2008 2:10am
OrinKerr:
Oren writes:
OK, while your position makes eminent sense in theory what about the application? Requiring Federal judges to decide questions of state law seems quite impractical, let alone inadvisable since they are by no means experts on state law. Let me turn it around, actually, and simply ask you how such a suppression claim should proceed.
Federal judges aren't experts in anything; they're all generalists. So I would have them decide this just as they decide any other legal question, and just as the Supreme Court did in Di Re, by conducting legal research and then deciding it.

Subpatre,
Got it, at least I think. Thanks for the clarification.
1.8.2008 2:16am
tbaugh (mail):
An analogous fact pattern: A number of states, I believe (at least mine), hold that an arrest for a misdemeanor on probable cause but not committed in the officer's presence is statutorily improper (under the law of the state), but not unconstitutional under the Fourth Amendment, and thus no exclusionary sanction applies, the question being a statutory one, and the legislature has provided no exclusionary sanction in this circumstance. I take it you think this is wrong as well.

If you are right in Moore, do you think exclusion automatically follows?
1.8.2008 7:39am
tarheel:
Prof. Kerr:

Any chance the Court announces a new "search incident to a lawful citation (or even stop)" exception, expanding the Terry frisk to a full search? Terrible outcome, in my view, but is it a possibility?
1.8.2008 7:47am
David Schwartz (mail):
Oren writes:
OK, while your position makes eminent sense in theory what about the application? Requiring Federal judges to decide questions of state law seems quite impractical, let alone inadvisable since they are by no means experts on state law. Let me turn it around, actually, and simply ask you how such a suppression claim should proceed.


They don't have a choice in many similar contexts. For example, suppose the question was whether or not the state police had probable cause to believe a particular state law was violated. Would not those federal judges have to figure out whether the fact pattern constituted probable cause to believe the state law had been violated? That might require parsing its elements, figuring out whether observed conduct is inside the meaning of ambiguous terms in the law, and so on.

You can't avoid the fact that the 4th amendment require a reasonableness determination, and that determination will often hinge on questions of state law.

Consider a 5th amendment takings case where the issue is whether the thing taken was actually property or actually the property of the person suing. This could require parsing issues of state property law of almost unlimited complexity.

Consider a 5th amendment due process case where the issue is whether the deprivation is of an actual right established under state law.

Consider a 1st amendment case where the forum is a pure creature of state law.

Consider a double jeopardy case where the issue is whether two state laws cover the same conduct, requiring figuring out the overlap or non-overlap of terms in each of those laws.

As I understand it, there is no shortage of Federal cases that involve parsing complex issues of State law.
1.8.2008 7:53am
ken (mail) (www):
Under 19.2-74 it was illegal for the officer to do anything other than write a summons and release Moore: "[T]he arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody." It would have been illegal for the officer to even take Moore to the Magistrate. There are exceptions, but they don't apply here.

I've never seen a judge in Virginia buy into the argument that detention is an arrest. In fact, the Va SCt has based decisions on the fact that they are different. Commonwealth v. Hill, 1992, 202 Va. 714.

What intigues me about the US SCt deciding to take this case is that it seems to turn on State law. It's been a while since I read it, but I believe the Va SCt decided that summons as required by this statute were equivalent to citations and therefore no search could be made. This determintation is purely a matter of Virginia courts interpreting Virginia law. I haven't read the briefs in this case. How is the Commonwealth getting around that?
1.8.2008 7:55am
ken (mail) (www):
To answer David M. Nieporent:

Virginia courts have refused to apply the exclusionary rule except as required to by federal precedent (and State cases applying federal precedent). I believe the language usually used is that the two constitutions are "coextant."
1.8.2008 8:01am
damon katz:
Everyone's making this so complicated. Orin is right, and said it succinctly in the 4th paragraph of his post. Here it is, even shorter:

Under Chimel v. California, SIA is proper following a lawful arrest. [Why? Because, as the Court said in New York v. Belton, the arrest destroys any 4A interest.]

So the only question is whether the arrest was valid. Look to state law for that. Under state law, it wasn't. So the SIA wasn't lawful. The evidence should be suppressed.
1.8.2008 8:23am
Just Dropping By (mail):
Although I find Prof. Kerr's analysis persuasive, I think the court will end up disposing of this case by finding that searches incident to arrest are always lawful regardless of whether the arrest itself is lawful. In light of the past 15 years or so of the court's rulings, I have a very hard time imagining a pro-defendant ruling in a Fourth Amendment case.
1.8.2008 8:56am
tbaugh (mail):
Professor Kerr:

A second thought occurs (I try to limit myself to no more than 2 a day; fortunately, this is not difficult for me).

Suppose a state decided that probable cause was an insufficient protection, and passed a state constitutional amendment required clear and convincing evidence, understood to be more than the 4th amendment probable cause standard. It would be your position that an arrest on probable cause but not on clear and convincing evidence would violate the 4th amendment because the arrest was invalid under state law? And if the state decided "we do not apply the exclusionary if the arrest was based on probable cause but violated the state constitutional requirement for clear and convincing evidence" that would be unavailing, because the arrest would, though made on probable cause, be in fact be a violation of the 4th amendment?
1.8.2008 9:03am
Grange95 (mail):
Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484
(1998), was a case handled by a law school classmate of mine. The court determined that a search incident to issuance of a speeding citation was improper because no arrest had been made, even though state law permitted an arrest in that situation. Just another unanimous "law and order" decision by C.J. Rehnquist! ;-)
1.8.2008 9:34am
OrinKerr:
Tarheel,

What Grange95 said.
1.8.2008 9:39am
Dan J. (mail):
Just Dropping By - not only is the Knowles case pro-defendant, how about the Kyllo decision as well? Written by Justice Scalia no less!
1.8.2008 9:58am
Dan J. (mail):
Professor Kerr - does the rule that the federal government may violate state law in the course of a search mean that they can also violate state constitutional law search and seizure protections in conducting a search or seizure?
1.8.2008 10:09am
MooreWatcher:
Subpatre is wrong. The unlawfulness of the arrest did not turn on the fact that Moore was taken to his hotel room; I don't know why subpatre thinks this is so. It turned on the fact that the crime for which Moore was arrested is not a crime, under VA law, for which police officers can make a custodial arrest except under certain exceptions, which were not met in this case. A release with a citation is not an arrest under state law. Virginia and many other states make this distinction.
1.8.2008 10:26am
G.R.:
One thing I've often wondered is whether enough current clerks read this blog for posts like this to have a significant effect on the decision of pending cases.
1.8.2008 11:21am
PLR:
Although I find Prof. Kerr's analysis persuasive, I think the court will end up disposing of this case by finding that searches incident to arrest are always lawful regardless of whether the arrest itself is lawful.

I don't agree with that prediction, but I do get a little queasy when long settled precedents that are perceived to be pro-defendant (like the exclusionary rule) are in play for comment by Scalia or Roberts.
1.8.2008 12:10pm
OrinKerr:
Dan J.
Does the rule that the federal government may violate state law in the course of a search mean that they can also violate state constitutional law search and seizure protections in conducting a search or seizure?
Yes, it does. State constitutions are often interpreted to be more protective than the federal constitution, but those rules only limit state officers and not the federal government.
1.8.2008 12:10pm
Dan J. (mail):
Thanks Professor. When I had asked my criminal procedure survey professor that question, he hemmed and hawed, and then said the issue was still open. It seems that by your decisive "yes" that he was mistaken. Given that he is a state constitutional law scholar, I'm suprised at his lack of clarity/correctness on the issue.
1.8.2008 12:25pm
OrinKerr:
Dan J.,

Well, I can understand why a state expert wouldn't know; it wouldn't come up, as all state law enforcement officers are bound by the state rules. If you focus on the fed side of things, by contrast, you know what binds the feds.
1.8.2008 12:31pm
cboldt (mail):
Not directly pertinent to the case in hand, but this rationale by Justice Jackson doesn't come across to me as protective of individual rights against the government. Would he have ruled in favor of the government, had the arrest been made by a federal actor instead of a state actor? If so, his objection isn't that this arrest would be unconstitutional per se (a too permeating police surveillance), but is simply that the bust was made by the wrong actor, a state police rather than a federal agent.

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.


My completely amateur take is that if the only hook the government has to justify this search is "incident to arrest," then this case hinges on the definition of "arrest." If there is an absence of arrest, as a matter of law, then the evidence is tainted.

.

But the Commonwealth is arguing that if the officer had "probable cause," then the search was not a violation of the fourth amendment. "Probable cause" seems to me a different grounds for justification, than "incident to arrest."

.

An interesting question is "what result if VA state law gave discretion to arrest on suspended license violations."
1.8.2008 1:07pm
Fub:
PLR wrote at 1.8.2008 12:10pm:
[Quoting Just Dropping By at 1.8.2008 8:56am]
Although I find Prof. Kerr's analysis persuasive, I think the court will end up disposing of this case by finding that searches incident to arrest are always lawful regardless of whether the arrest itself is lawful.
I don't agree with that prediction, but I do get a little queasy when long settled precedents that are perceived to be pro-defendant (like the exclusionary rule) are in play for comment by Scalia or Roberts.
Regardless of any particular Justice's tendencies, the case is a gilded invitation to carve another "drug exception" out of whatever is left of Fourth Amendment protections.
1.8.2008 1:22pm
cjwynes (mail):
The last thing we need is some wishy-washy O'Connor-esque balancing test. I'd prefer the gov't win, but a bright line is better than a murky one any day of the week.

What I'm wondering is what the heck Virginia was thinking when they passed a law that ties law enforcement's hands like this? They must not have much of a drug trafficking problem in Virginia, or else they'd know how important searches incident to arrest for traffic violations can be. Maybe they just don't care since most of those drugs are probably heading to DC or Baltimore.
1.8.2008 2:16pm
Dan J. (mail):
Professor - good point. I had just assumed that, as a state con law scholar, he had an understanding of how state con law interacted with the federal government as part of the federal structure of government.
1.8.2008 2:21pm
SG:
At the risk of a digression from a non-lawyer: What's the justification for the "fruit of the poisonous tree" doctrine? It seems that this only protects the guilty. If I'm innocent and illegally searched, the search turns up nothing so this doctrine provides no remedy. It only helps if you're actually guilty.

It would seem far more rational to treat the violation of civil rights a separate offense. Illegally obtained evidence (and any subsequent fruit) is still valid to use against the defendant, but the defendant can pursue a claim against the officers/government for a violation of his civil rights. For that matter, make 4th amendment violations a criminal offense and strip officers of their immunity for this offense. This would create an incentive for law enforcement to uphold civil rights protections without being useful only for the guilty.

Is there something I'm missing?
1.8.2008 2:34pm
hattio1:
Unfortunately I think Fub and Just Dropping By are right in substance, the Supreme Court will find some way to uphold this search, even if I disagree about the specifics (I don't think they'll go so far as upholding searches incident to illegal arrest without at least putting a "good faith" requirement on there).

cjwynes,
I really hope you're joking about the "need" for searches incident to arrest for minor traffic violations as a way to curb the drug trade. It seems like you are arguing there is no longer a "need" for the Fourth Amendment protections.
1.8.2008 3:19pm
cjwynes (mail):
SG, I completely agree. Adopting the exclusionary rule and its various offspring was a colossal mistake on the part of our judiciary. It would be better to deter violations of civil liberties through the threat of civil suits or disciplinary action, rather than deter it by setting criminals free. Frankly, I don't know how much of a deterrence that is anyways, since if you don't search the criminal he is going to be just as free as if you do search him and he later wins a motion to suppress.

hattio1, I think the 4th amendment does not mesh very well with automobiles and highways. There are already so many ways for the police to check out the contents of your vehicle, most of which are NOT matters of contentious legal dispute at the moment, that I think nobody in their right mind would have even the slightest expectation of privacy for anything in their vehicle while travelling on the public roadways. The exceptions have so swallowed the rule, that I think the most sensible course of action is to cease applying 4th amendment protections to automobiles on public roadways. Put everyone on notice that they have no privacy on the public highways, so traffic drugs at your own risk. When we privatize the road system, I'll feel differently about it.
1.8.2008 3:47pm
whit:
"Whether ticketed or taken into custody, the detention —for that cause— is an arrest by any reasonable meaning. "

no, it's not.

an "arrest" for the purposes of search incident to arrest refers to a custodial arrest, not a mere 'arrest' as in detention.

i can detain you and write you a ticket for speeding, a civil infraction in WA state. i can demand you stop your car by activating my lights. if you don't stop, THAT's a crime, but if you do stop, i am detaining you for a CIVIL infraction.

i cannot search you "incident to arrest" because i cannot make a custodial arrest for speeding (in my jurisdiction, i CAN for a suspended license).

i see this a lot, especially among non-trial lawyers - the confusing of "arrest" in the sense of PC/Crime/Custodial ARREST and 'arrest' in terms of a detention.

heck, i can DETAIN you even in cases where NO crime OR civil infraction has occurred (in some circ's) like under community caretaking function, or as a mental health involuntary commitment.

WA state has an interesting twist on "incident to arrest" that complicates it further. in most jurisdiction, "incident" means "contemporaneous". It can occur legally BEFORE the custodial arrest, as long as there was PC when the search was made. not in WA. it's essentially search 'after' arrest, and courts have thrown out a # of searches even when there was PC and even when the guy was TOLD he was under arrest, (but the judges didn't think it custodial since the dumb officer told the guy if he didn't find any drugs he would be released... duh)
1.8.2008 4:24pm
damon katz:
Dan J. -

Professor Kerr is being generous. Your criminal procedure professor should have known that answer; it is a very basic question. But everyone gets one wrong now and then, so tell him the correct answer and he'll have it ready for next time.

The feds don't need to worry about state constitutions or criminal procedure rules.

DK
1.8.2008 4:58pm
whit:
"Does the rule that the federal government may violate state law in the course of a search mean that they can also violate state constitutional law search and seizure protections in conducting a search or seizure?"

"Yes, it does. State constitutions are often interpreted to be more protective than the federal constitution, but those rules only limit state officers and not the federal government."

correct. many drug detectives i know (myself included) were sometimes amazed at the latitude that federal constitutional law afforded vs. our state.

when state (state, county, local, etc.) officers in my state are working with feds ON a federal case, they are also not bound by the much stricter state privacy standards.

stricter state privacy standards create the unintended consequence of increasing incentive for federal and joint state/federal investigations, since the investigators then have much more latitude in search and seizure, investigative techniques, etc. the stricter the state privacy standards, the greater benefit that local officers have in working with the feds and prosecuting federally.
1.8.2008 5:01pm
hattio1:
It must be a blue moon or something....
I have to agree with whit, when he says;

no, it's not.

an "arrest" for the purposes of search incident to arrest refers to a custodial arrest, not a mere 'arrest' as in detention.

However, I would add one caveat. A "custodial arrest" as whit is using the term here does not mean simply that a person is in custody for Miranda purposes. It means an actual arrest. I think whit will agree with that clarification.
I should say that, assuming WA law is as he says it is, I think the judges who don't think it's custodial when the officer says he will let someone go if no drugs are found are exactly right.
"I'm searching you incident to arrest sir, because I believe you have drugs on you. But if it turns out you don't have drugs on you, then you won't be under arrest." Some judges get the crazy idea that the whole purpose of the arrest is to search for drugs....how could they ever get that impression?
1.8.2008 5:06pm
whit:
"It must be a blue moon or something....
I have to agree with whit,"

it must be a blue moon when you are CORRECT, then :)

"However, I would add one caveat. A "custodial arrest" as whit is using the term here does not mean simply that a person is in custody for Miranda purposes. It means an actual arrest. I think whit will agree with that clarification."

correct. depending on the state, the "in custody for miranda purposes" is viewed rather "liberally" by liberal judges and can include situations sans handcuffs, sans advisement "you're under arrest" etc. whereas a TRUE custodial arrest is usually a bit more restrictive.

"I should say that, assuming WA law is as he says it is, I think the judges who don't think it's custodial when the officer says he will let someone go if no drugs are found are exactly right. "

right. as long as one understands the distinction noted above. noted that in that case, the officer COULD plan to let the guy go as long as no drugs are found. that doesn't affect the "custodialness" of the arrest. TELLING the person that this is true - does.

"I'm searching you incident to arrest sir, because I believe you have drugs on you. But if it turns out you don't have drugs on you, then you won't be under arrest." Some judges get the crazy idea that the whole purpose of the arrest is to search for drugs....how could they ever get that impression?"

actually, you are not searching incident to arrest BECAUSE you believe they have drugs on them - (unless the arrest is for drugs), but i get your point. incident to arrest is nicely bright line. even for a Drivw/license/suspended arrest you can search the car. fine. and you CAN make the decision to BOOK ***after*** the search (and warrant check, and whatever else you use), but if you outright tell the guy, i'm going to release you if... then it's not a custodial arrest for purposes of search incident (but of course it would be for miranda).
1.8.2008 5:21pm
Chris B. (mail):
Respectfully Professor Kerr, I couldn't disagree more with your analysis. I admit that my name is not on any criminal procedure treatises, but, well, this is the internet. Anyway, I disagree with two premises of your argument. One, I think that Goldstein et. al took the smarter tack by focusing on the constitutionality of the arrest. I really think that's the whole game. It was a novel and interesting approach to say that the state always loses the balancing test here because they have disallowed arrests. I think at oral argument you'll see lots of interesting hypotheticals that seek to test the boundaries of such a rule. I.e. say instead of disallowing arre sts in certain instances state law requires a heightened probable cause standard. Here, where does the balance lie? The state obviously has SOME interest in the arrest, but professes a higher standard than normal arrests. Anyway, this is a threshold point re: Goldstein, et. al. For this fact pattern, see United States v. Wright, 16 F.3d 1429, 1436 (6th Cir. 1996). Wright also agrees with Professor LaFave about the search question.

So let's look at that. Your argument is certainly possibly but not entirely plausible. I'll make three points why and then briefly mention Di Re.

One, as mentioned in the SG's brief, the 9th Circuit in Mota, and some of the other lower courts to focus on this issue (California v. McKay, 41 P.3d 59; Wright from the 6th Cir.), the "search incident" to an arrest exception is certainly a type of search, and while you try to distinguish Elkins and Greenwood, they clearly disavowed the idea that the searches in those contexts rely on state law. In other words, it would be bizarre to use state law to decide how the search incident to arrest exception operates, while federal law determines whether the exclusionary rule applies to all other searches. See United States v. Wright, 16 F.3d 1429, 1436 (6th Cir. 1996) (rejecting such a rule as “incongruous”).

The second point is that, while you could argue that "lawful" is quite broad, such an understanding is inconsistent with the Robinson case establishing (or reaffirming) the exception in the first place. I think LaFave talks about this, but Robinson explained the exception thusly: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Robinson, 414 U.S. at 235.

LaFave explained the significance of all this as such: “[T]he fact of the matter is . . . that the Supreme Court has never taken the position that an arrest made on probable cause violates the Fourth Amendment merely because a taking of custody was deemed unnecessary (as a matter of state law or otherwise).” Moreover, regarding searches “incident to a lawful arrest,” “lawful” does not mean lawful in a “state law sense,” because “[j]ust before the ‘lawful custodial arrest’ holding” in Robinson, the Court strongly indicated that “’lawful’ refers not to the limitations of state law but rather to an overarching principle that all it takes to make a custodial arrest reasonable in a Fourth Amendment sense is that is be based on probable cause. And thus [the holding in United States v. Mota to the contrary] is open to question.” 1 LaFave, Search and Seizure, § 1.5B at p. 141-42 (4th ed. 2004).

Third, and I won't belabor the point, the rationale of the exception also doesn't admit the exception to the exception you propose: Those rationales are: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. Obviously, the need to protect officer safety applies whenever the officer arrests the individual. It only didn't matter in Knowles because they didn't actually arrest the guy. In other words, the Knowles rule only goes so far to say that the exception applies whenever there is probable cause to arrest. Not to make cheap points, but it's fair to say that your proposed rule wouldn't protect officer safety. (I do recognize the rebuttal argument that they shouldn't be arresting them in the first place, but that brings us back to whether that is a state law issue with state law consequences or a CONSTITUTIONAL issue.)

Finally, Di Re. Although you say that the Court littered its opinion with Constitutional references, you have to admit at the outset that Justice Jackson failed to EVER state the words "Fourth Amendment." Now if he was such a careful judge, isn't that an oversight? Admittedly the opinion is a bit murky if you read it with possible alternate holdings, but neither speaks to being a Constitutional holding. Indeed, while the court stated that "in absence of an applicable federal statute[,] the law of the state where an arrest without warrant takes place determines its validity," this statement itself lends credence to the fact that it's not a Constitutional decision.

The Di Re Court explained that “[b]y 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 ‘agreeabl[e] to the usual mode of process against offenders in such State.’" Di Re, 332 U.S. at 589 (quoting The Act of September 24, 1789 (Ch. 20, § 33, 1 Stat. 91)). On the basis of this statute, the Court concluded that state law would provide “the standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule.” So, in my view, it HAS to be an example of the Court's supervisory power. See e.g., United States v. Walker, 960 F.2d 409, 416 (5th Cir. 1992).

Also Orin, think about it in light of that statement quoted above from Di Re: ". . . the standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule.” Di Re can't be read as interpreting the Constitution, considering that the Court explicitly suggested that Congress could alter the rule simply by statute. If the Court was interpreting the Constitution, such a suggestion is obviously unconstitutional. Again, can't we both agree that Justice Jackson was too careful to make patently unconstitutional suggestions like that Congress could overrule Fourth Amendment holdings by statute?

Last, I don't want to be flippant, but you can't seriously contend that Di Re's syrupy closing dicta about "our forefathers . . . designed our Constitution . . ." can transform Di Re into a Constitutional decision when the decision itself professed to rely on a statute and the opinion fails to once cite to or even mention the Fourth Amendment. As the SG points out too (and I haven't personally researched this) the Court has never cited Di Re in a non-federal prosecution case as authoritative precedent. And the significance of Elkins and Greenwood isn't solely that they "overruled" Di Re, but more that they established the appropriate standard when you want consistently.

Also this rule would just be really bizarre in practice. What about 1983 violations, which are quite common. What if a federal court makes a determination in a Moore-like case (i.e. on the basis of a state law violation), which is presumptively final, and then the state goes and amends the statute. Or what if it's like Moore's background, where the lower state courts initially split on whether the state law had even been violated. A state supreme court could theoretically "overrule" the U.S. Supreme Court on a Fourth Amendment issue simply by interpreting the scope of its own law differently than the U.S. Supreme Court. And, Orin, you have to admit that the scope of the Fourth Amendment is going to be broader or narrower in some states depending on who has these kinds of laws. If Virginia has this law and Tennessee doesn't, the Fourth Amendment gives broader protections to Tennessee residents. Language in Whren (decided in a different contexts) rejected the idea that the Fourth Amendment turns on the requirements of local law, observing that the Amendment is not “so variable” as to “vary from place to place and time to time.” Whren, 517 U.S. at 815. Obviously too state legislatures could thus expand and contract the scope of the Fourth Amendment based on their collective legislative fancies.

There's a final perverse twist to the federalism concerns here too. While your and Moore's rule would give state legislatures unfettered authority to alter the scope of the Fourth Amendment, your rule would actually transfer authority away from the states because it mandates a single, automatic remedy for all such violations of state law: suppression of the evidence. This may work for Moore, but this runs counter to the normal admonition that sovereigns may create and enforce their laws. California, for example, by proposition voted to limit the suppression remedy. Now I'm probably a bigger fan of the remedy than you are (see your Hudson v. Michigan discussion), but there's no question that your and Moore's rule takes the choice of remedy for officers (i.e. civil suits against them in lieu of suppression of the evidence, etc) and hands that authority to the Supreme Court. I personally don't think that makes much sense.

Anyway, I appreciate the long post and the thoughtful discussion. As a final litigation strategy point, take a glance at Goldstein/Moore's Brief in Opposition. They actually focus their BIO (which is quite good) on your argument about Di Re and the "lawful" search exception. But, either for their own reasons or because they saw the SG/petitioner briefs they switched to their current position. I personally think that was wise.
1.8.2008 6:29pm
Fub:
cjwynes wrote at 1.8.2008 3:47pm:
The exceptions have so swallowed the rule, that I think the most sensible course of action is to cease applying 4th amendment protections to automobiles on public roadways. Put everyone on notice that they have no privacy on the public highways, so traffic drugs at your own risk. When we privatize the road system, I'll feel differently about it.
Why stop there? Why not just declare the entire Bill of Rights null and void?
1.8.2008 6:41pm
Chris B. (mail):
As a final obvious point: I obviously already had the opportunity to look at these materials and work on this case. While your post is great Orin, I didn't do all the research just to respond to you here. Don't have that much time on my hands!
1.8.2008 6:44pm
hattio1:
Ah, the world is set aright again...or in other words, I'm going to disagree with Whit;

actually, you are not searching incident to arrest BECAUSE you believe they have drugs on them - (unless the arrest is for drugs), but i get your point. incident to arrest is nicely bright line. even for a Drivw/license/suspended arrest you can search the car. fine. and you CAN make the decision to BOOK ***after*** the search (and warrant check, and whatever else you use), but if you outright tell the guy, i'm going to release you if... then it's not a custodial arrest for purposes of search incident (but of course it would be for miranda).

It seems like what you are saying is that an officer can arrest someone if the whole point is to search for drugs incident to that arrest, but not if they tell the person they are only arresting them to search for drugs incident to that arrest. I think, that as a practical matter (provided the officer doesn't open his mouth about the actual reason to search on the stand) you are right, just because courts so rarely second guess LEO. But as a legal matter the arrest itself can't be for the mere purpose of searching incident to arrest.
And while you are right that in some jurisdictions you can search incident to arrest before arresting or even making the decision to arrest, there are other jurisdictions that disagree. And I gotta say that's the stupidest decision ever...how can you make a search incident to arrest before an arrest???
1.8.2008 7:15pm
hattio1:
I realize I wasn't as clear as I might have been in my last post. When I referenced the "stupidest decision ever" I meant the decision to justify searches incident to arrest that occurred before a lawful arrest.
1.8.2008 7:29pm
whit:
"It seems like what you are saying is that an officer can arrest someone if the whole point is to search for drugs incident to that arrest, but not if they tell the person they are only arresting them to search for drugs incident to that arrest. I think, that as a practical matter (provided the officer doesn't open his mouth about the actual reason to search on the stand) you are right, just because courts so rarely second guess LEO. But as a legal matter the arrest itself can't be for the mere purpose of searching incident to arrest. "

no. you are missing the point. the case law (as regards this particular case in my jurisdiction is clear)

whether somebody is under arrest is based upon whether a REASONABLE person in that person's situation would believe he was under arrest. in the case where the officer TOLD the person he would let him go IF he didn't find bla bla, the court (in WA) said the search incident wasn't valid because the person thought he wasn't really under arrest.

it DOES NOT MATTER what the officer INTENDS to do. it matters what the arrestee pERCEIVES. that is key in all custodial arrest situations. that's const. law 101 (and miranda law 101 as well), although defense attorneys like to sometimes play otherwise (and delve into what the officers intended vs what the officers did in the presence of the suspect)- what matters is that, NOT intent.

the court made clear that it is PERFECTLY acceptable to make the "booking decision" after arrest. it is NOT acceptable to TELL the person that IF you are doing a search incident. i am very familiar with this case law, because i did scores of followup cases as a detective in narco that sprung from searches incident.

our jurisdiction (and some others) forbid pretextual stops (using an infraction as a pretext to stop somebody you are otherwise interested in for criminal hunches etc.)

it does not forbid what you might think are "pretextual searches" where an officer with PC arrests (for say, DWLS) and then searches because he intends to find drugs, or whatever. it's irrelevant. the law is bright line. GIVEN PC to arrest, AND an arrest, the search is fine.

certainly, the courts might frown on that, but at this point, they don't - officially.

what might (at some poiint) get officers into trouble is when they only arrest and search 'johnny dirtbag' for suspended license, but not "janie the soccer mom". but there is no CASE LAW that says they can't use discretion. *i* would just advise against it, because if they could show a pattern, some defense lawyer is gonna make case law on search incident.

"And while you are right that in some jurisdictions you can search incident to arrest before arresting or even making the decision to arrest, there are other jurisdictions that disagree. And I gotta say that's the stupidest decision ever...how can you make a search incident to arrest before an arrest???"

easy. the problem is you don't understand what "incident" means. here's the dictionary:
3. something that occurs casually in connection with something else.
4. something appertaining or attaching to something else.

you might think of incident to arrest, as AFTER arrest (and practically speaking, it usually happens that way. in my jurisdiction, it MUST - but that's based on independant case law)

clearly, incident means what it means - "related" to the arrest, and of course it has to be contemporaneous (not like 3 hours afterwards). it does not mean 'immediately after'

so, i think you are reading your subjective impression of what you WANT incident to mean, vs. what it actually mean
1.8.2008 7:31pm
OrinKerr:
Chris,

There's a lot to respond to, so here are two quick points:

First, there is absolutely nothing incongruous about relying on state law in some instances and not in others. I could name a dozen instances in which the Fourth Amendment relies on state law and a dozen in which it doesn't; the idea that Greenwood somehow settles this is simply mistaken, even if some federal judges don't realize their simple error. (My article "Four Models of Fourth Amendment Protection" has a bit more on this.)

Second, I am perplexed that you think Di Re is not a constitutional decision because Justice jackson did not say "Fourth Amendment" in the decision. Quoting from Di Re:
Is such a distinction consistent with the Fourth Amendment? We think that it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.' The progeny of the Carroll case likewise dealt with searches and seizures under this Act. Husty v. United States, 282 U.S. 694, 74 A.L.R. 1407.

Obviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional. In view of the strong presumption of constitutionality due to an Act of Congress, especially when it turn on what is 'reasonable,' the Carroll decision falls short of establishing a doctrine that, without such legislation, automobiles nonetheless are subject to search without warrant in enforcement of all federal statutes. This Court has never yet said so. The most that can be said is that some of the language by which the Court justified the search and seizure legislation in the Carroll case might be used to make a distinction between what is a reasonable search as applied to an automobile and as applied to a residence or fixed premises, even in absence of legislation.
That's pure Fourth Amendment, just above the section about search incident to arrest. It's true that Justice Jackson didn't preface the later part of the opinion (the one mentioned above) with a reminder that he was still interpreting the Fourth Amendment. But that's because he didn't have to: he had said this earlier, and he was continuing that same analysis.
1.8.2008 8:05pm
OrinKerr:
One more response to Chris B.:

Under your theory of the Fourth Amendment, the word "lawful" is verbiage in the "incident to a lawful arrest" phrase, right? After all, if the arrest is unconstitutional, any search following it is suppressed as a fruit of the poisonous tree. So under your theory, it's just a "search following an arrest" doctrine, and the Supreme Court has been erroneously using the word "lawful" in there ever since it first mentioned the doctrine in 1925. Seems pretty unlikely to me.
1.8.2008 8:09pm
OrinKerr:
Yet another response to Chris B on the issue of whether Di Re was interpreting the Fourth Amendment or the federal supervisory power. To answer this, I think it's very helpful to re-read the Petitioner's brief, filed by Assistant to the SG Fritz Weiner (who was, I believe, a former colleague of Justice Jackson when he was SG). Justice Jackson's opinion is a direct response to the SG's brief. Here's what the SG's brief had argued on the "search incident to arrest" question:
THE SEARCH OF RESPONDENT WAS JUSTIFIED AS 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.

Starting from the proposition that, since a statute of the United States is the supreme law of the land (cf. Testa v. Katt, No. 431, Oct. T. 1946, decided March 10, 1947), a state officer may properly arrest for commission of a federal offense *14 ( Marsh v. United States, 29 F. 2d 172 (C. C. A. 2); United States v. One Packard Truck, 55 F. 2d 882, 884 (C. C. A. 2); see Gambino v. United States, 275 U. S. 310, 314-316), we turn to the bases for asserting that Detective Gross had authority to arrest respondent.

By way of preliminary, it should be noted that, as all the judges below held, the agreement between Buttitta and Reed to transfer counterfeit ration coupons and bring about their possession by Reed was a conspiracy and thus a felony.[FN2] It is undisputed that Detective Gross, who arrested respondent, and O'Donnell, the 0. P. A. investigator who accompanied him, had reasonable cause to believe that this felony had been committed. Moreover, the felony had in fact been committed. *15 Furthermore, the transfer of the counterfeit coupons by Buttitta to Reed and their possession by Reed were themselves felonies under Section 28 of the Criminal Code (18 U. S. C. 72). United States v. Serpico, 148 F. 2d 95 (C. C. A. 2); United States v. Raskin, 52 F. Supp. 343 (E. D. N. Y.) ; United States v. Mullin, 51 F. Supp. 785 (E. D. Mo.). See also Andrews v. United States, 157 F. 2d 723 (C. C. A. 5), certiorari denied, February 17, 1947 (No. 881, Oct. T. 1946). These felonies, too, had actually been committed, and the arresting officers had reasonable cause to believe that they had been committed. Additionally, as Judge Clark points out, under the Serpico case the finding of the counterfeit coupons upon the respondent shows that he also was committing a felony (R. 45).

FN2. The agreement to effectuate the transfer of property which neither the transferor nor the transferee has the right to possess under any circumstances is manifestly different from an agreement to sell to another articles which may or may not be used illegally. Hence, neither the doctrine of United States v. Falcone, 311 U. S. 205, that one does not become a conspirator by making sales to a person who intends to use them illegally, nor even the caveat in Direct Sales Co. v. United States, 319 U. S. 703, 712, that a sale of “restricted goods” may not establish a conspiracy, are applicable here. The agreement to bring about the transfer of counterfeit ration coupons was an agreement to commit an offense against the United States and thus a conspiracy under Section 37 of the Criminal Code. It should be noted, moreover, that possession of the counterfeit coupons was itself a crime, capable of being committed by the transferee alone, and hence a conspiracy to bring about that result was a distinct offense punishable independently of the substantive crime. United States v. Simonds, 148 F. 2d 177,178 (C. C. A. 2).

With the foregoing by way of background, we turn to an examination of the New York statute authorizing arrests by a peace officer without a warrant.

The second subdivision of Section 177 of the New York Code of Criminal Procedure authorizes such an arrest “When the person arrested has committed a felony, although not in his presence.” This subdivision covers a case where the arrested person has in fact committed a felony although the arresting officer is unaware of the fact. See Waite, Public Policy and the Arrest of Felons (1933) 31 Mich. L. Rev. 749; Wilgus, *16 Arrest Without a Warrant (1924) 22 Mich. L. Rev. 673, 685. A similar provision is found in the statutes of numerous states and in the American Law Institute's model Code of Criminal Procedure.[FN3] A federal statute looks in the same direction.[FN4] The obvious justification for this statutory authorization is that, without it, a person actually guilty of the most heinous felony could not be lawfully arrested if he did not appear guilty.[FN5] The New York statute and others *17 like it is designed to introduce more rationality into the law, particularly in the recurring instance of arrests for unlawfully carrying concealed weapons. See Waite, Public Policy and the Arrest of Felons (1933) 31 Mich. L. Rev. 749, passim; cf. Holley v. Mix, 3 Wend. (N. Y.) 350, 353. Under that statute, respondent's arrest was plainly legal.

FN3. “ Section 31. Arrest by officer without warrant--when lawful. A peace officer may, without a warrant, arrest a person:


* * *

“(b) When the person to be arrested has committed a felony, although not in the presence of the officer.


* * *

The commentary to the model code, at pp. 234-235, lists (as of 1930-31) the statutes of seventeen states which embody this provision in substance.

FN4. See the proviso to 18 U. S. C. 53a, declaring an unlawful search by any federal law enforcement officer to be a misdemeanor: “ Provided, That nothing herein contained shall apply to any officer, agent, or employee of the United States serving a warrant of arrest, or arresting or attempting to arrest any person committing or attempting to commit an offense in the presence of such officer, agent, or employee, or who has committed, or who is suspected on reasonable grounds of having committed, a felony.”

The statute authorizing members of the Federal Bureau of Investigation to make arrests does not go this far. 5 U. S. C. 300a.

FN5. As one commentator put it, “The rule is that an officer may lawfully arrest even an innocent person when he believes and has reasonable ground to believe that person guilty of a felony. But, for some inenubilous reason, it is not the law that he may lawfully arrest a guilty person whom he suspects of felony but whom, the court opines, he had not reasonable ground to suspect.” Waite, Some Inadequacies in the Law of Arrest (1931) 29 Mich. L. Rev. 448, 453. See also Comment (1932) 30 Mich. L. Rev. 1288.

But the officer's act can also be justified under the third subdivision of Section 177, “When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” This states the familiar principle repeatedly laid down in the federal cases, and which would have been applied in the absence of statute. A police officer “may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony” ( Carroll v. United States, 267 U. S. 132, 156), i. e., he may arrest on reasonable cause to believe that a felony has been committed, and that the person arrested has committed it. If a felony has in fact been committed, either an officer or a private person may arrest anyone reasonably believed to have committed the felony. United States v. Lindenfeld, 142 F. 2d 829,831 (C. C. A. 2), certiorari denied, 323 U. S. 761; Brady v. United States, 300 Fed. 540, 543 (C. C. A. 6), certiorari *18 denied, 266 U. S. 620; see Wilgus, Arrest Without a Warrant (1924) 22 Mich. L. Rev. 673, 685-701.

Here, therefore, Detective Gross had the right to arrest respondent if he had probable cause to believe that respondent was a party to the conspiracy between Buttitta and Reed, or that he had aided and abetted the commission of the substantive crime of possessing or transferring the counterfeit ration coupons.

The controversy in the court below turned on the existence of probable cause to entertain such belief on the basis of the circumstances proved. Here again, the general legal principles are not in dispute. The accepted definitions of probable cause are those adopted with approval from state cases by this Court in Stacey v. Emery, 97 U. S. 642, 645:

* * * A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged.

* * * Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty. * * *

Or, as this Court, again quoting a state case, said in Carroll v. United States, 267 U. S. 132, 161, “The substance of all the definitions is a reasonable ground for belief in guilt.”

*19 This Court itself has emphasized that actual guilt need not be established to show probable cause; that it is sufficient if the officer acts as a reasonably prudent man.

To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. ( Husty v. United States, 282 U. S. 694, 700-701.)

In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. ( Dumbra v. United States, 268 U. S. 435, 441.)

The test of the validity of an arrest in other words is reasonable deduction, not proof beyond a reasonable doubt.

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. The gist of the ruling of the majority below is that probable cause for respondent's arrest was not established because mere knowledge or acquiescence in a conspiracy is not sufficient to establish a person's guilt as a co-conspirator. Unquestionably, such is the rule when a jury is called upon to judge the sufficiency of all the evidence adduced at a trial for conspiracy. But, even at a trial, proof of association with known conspirators, proof of knowledge of the conspiracy, and proof of presence at the time of the commission of an overt act are *20 relevant facts to be considered in determining whether a particular individual has participated in the conspiracy. United States v. Valenti, 134 F. 2d 362, 363 (C. C. A. 2), certiorari denied, 319 U. S. 761; Banning v. United States, 130 F. 2d 330, 337 (C. C. A. 6), certiorari denied, 317 U. S. 695; United States v. Hannon, 105 F. 2d 390, 392 (C. C. A. 3), certiorari denied, 308 U. S. 594; Minner v. United States, 57 F. 2d 506, 510 (C. C. A. 10); Kanner v. United States, 34 F. 2d 863, 866-867 (C. C. A. 7). And proof of association may sometimes be so strong as to constitute proof of the offense. See United States v. Valenti, supra; Beard v. United States, 82 F. 2d 837, 844 (App. D. C.), certiorari denied, 298 U. S. 655. A fortiori, the concurrence of all these factors at a particular time and place is a circumstance from which a reasonable law enforcement officer could reasonably conclude that a third person, deliberately brought along by the conspirators to the place where a crime has just been enacted, is implicated in the conspiracy and the crime. As Judge Clark very properly pointed out below (R. 44-45), “Police officers cannot be held unreasonable in declining to view as a mere bystander one who accompanies a criminal to a crime rendezvous.”

From early times, association with a person known to have recently committed a crime has been considered probable cause justifying arrest. Thus, in Sir Anthonzy Ashley's Case, 12 Coke 90 *21 (1612), one of the first cases to formulate the rule governing the right of private persons to make an arrest, it was said (p. 92):

And in this case it was resolved, that if felony be done, and one hath suspicion upon probable matter that another is guilty of it, because that he had part of the goods robbed, and is indigent, or if the party be indicted, or if murder be committed, and one is seen near the place, or coming with a sword or other weapon embrued with blood, or that he was in company of felons, or hath carried the goods stolen to obscure places, or such like things, these are good causes of suspicion; and by reason of this he may arrest the party so suspected, to the end that he may subject him to justice. [Italics added].

Hale in his Pleas of the Crown, written in the second half of the Seventeenth Century, in discussing the right of private persons to make an arrest mentions, among other grounds justifying arrest, the fact that the person arrested is “party with him that committed the robbery” (vol. 2, p. *81). In the following century, Hawkins (2 Pleas of the Crown, c. 12, § 11) lists as good probable cause for arrest “the being in company with one known to be an offender, at the time of the offence.”

Until the decision below, it had been assumed as a matter of course, in more modern cases, that when several persons are found together at the *22 place where a crime has just been committed, all persons so found are subject to arrest. Certainly no one would suppose that a person brought along by a bank robber at the time of the robbery was there merely to enjoy the spectacle. Men found near a still in ordinary working clothes are regularly arrested on the assumption that they have some connection with the operation of the still, although conceivably their presence might be otherwise explained. It has been held that men apparently at ease in an establishment where bets were known to have been taken were not only justifiably arrested, but justly convicted of conspiracy to operate the establishment. Beard v. United States, 82 F. 2d 837, 844 (App. D. C.), certiorari denied, 298 U. S. 655. In liquor and narcotics cases, it frequently happens that officers receive information merely that a certain automobile will be carrying contraband at a particular time. When the car is stopped and found to be carrying liquor or narcotics, all persons in the car are regularly arrested. The validity of such arrests has been assumed without question in reported decisions. Kaiser v. United States, 60 F. 2d 410 (C. C. A. 8), certiorari denied, 287 U. S. 654; Hawthorne v. United States, 37 F. 2d 316 (C. C. A. 4); United States v. Wiggins, 22 F. 2d 1001 (D. Minn.) ; In re Woodward, 1 F. 2d 672 (W. D. N. Y.); United States v. Stafford, 296 Fed. 702 (E. D. Ky.); and see State v. Hatfield, 112 W. Va. 424 (1932), where four men were arrested when *23 one threw out a pistol. Yet, under the decision below, since mere presence in a car at the time of the commission of a crime is not a sufficient circumstance from which to infer participation in the crime, officers who stop a car carrying contraband would be justified in arresting only the driver of the car. Such a ruling could, we submit, lead to absurd results. It would invite the leader of a criminal venture to endeavor to avoid arrest by the simple expedient of always having an employee drive his car or effect the actual transfer of the contraband. And if it be said that the rule below is limited to situations where particular individuals have been previously identified, and does not apply to situations where no participants have been specified, the results would still be absurd, for such a holding would enable accomplices to throw suspicion on a minor employee and make arrest of the major offender more difficult.

The majority of the court below neglected to take into consideration one simple fact of human conduct implicitly recognized for at least three centuries, i. e., that criminals are not prone to arrange to have disinterested third parties present to witness their crimes, Common experience shows this to be true. It cannot be overemphasized in this case that respondent is not a person who could have been present at the time of the commission of the crime without a prior design on the part of the known conspirators to *24 bring him there, and that he was brought by them to the very place arranged for the commission of a previously conceived crime. Police officers, faced with the necessity of taking immediate action to deal with a recently committed crime, are entitled, we submit, to make their decisions on the basis of normal human conduct, and are not required to conjure up unlikely possibilities which might, in a rare case, account for the fact that an innocent person has been brought by criminals to the scene of the crime. Their decision to treat the third person as one implicated in the crime is particularly justified where, as here, that third person makes no protestation of innocence and attempts no explanation for his presence until some time after he has been arrested. As this Court said in Bilokumsky v. Tod, 263 U. S. 149, 153:

Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character.

Arrest, after all, is not conviction. More latitude in the drawing of inferences from circumstances must be accorded to an officer making an arrest than would be allowed a jury in determining guilt. It is a reasonable inference that one brought by criminals to the place previously arranged for the commission of a preconceived crime is implicated in the crime. Considering all the circumstances, therefore, we submit that the police officer had probable cause for the arrest *25 of respondent and for the search of his person as incident thereto.
1.8.2008 8:21pm
hattio1:
whit says;

whether somebody is under arrest is based upon whether a REASONABLE person in that person's situation would believe he was under arrest. in the case where the officer TOLD the person he would let him go IF he didn't find bla bla, the court (in WA) said the search incident wasn't valid because the person thought he wasn't really under arrest.

Wrong, that's whether they're in custody for Miranda purposes. You are mixing the standard for being in custody for Miranda purposes with an arrest. And if someone is ONLY in custody for Miranda purposes, you are not automatically allowed to search them (though usually, you will be allowed to arrest them, giving you the ability to search them.
As to the second question, yes, I am talking about what I wish the law was rather than what the law is. But I'm also talking logic. How can a search be "incident" to arrest if the arrest is still an open question? Under the legal interpretation, if the search doesn't result in any contraband found, and the officer decides not to arrest, then what was the search incident to???
1.8.2008 8:22pm
OrinKerr:
Another interesting tidbit for Chris B. The circuit court opinion in Di Re had been authored by Judge Learned Hand. Here's how he opened his opinion:
DiRe appeals from a judgment convicting him of knowingly having in his possession counterfeit gasoline ration coupons. 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.
United States v. Di Re, 159 F.2d 818 (2d Cir. 1947).
1.8.2008 8:28pm
whit:
"Wrong, that's whether they're in custody for Miranda purposes. You are mixing the standard for being in custody for Miranda purposes with an arrest"

yes, you are correct. my bad on that.

here's an excerpt by the way speaking about how INTENT is irrelevant - it's what the officer does (as observed by the defendant), not what he intends to do.

--
Appellate court examinations of the issue of custodial arrest following McKenna have retreated from the consideration of the arresting officer's intent. For example, in State v. Clausen, 113 Wn. App. 657 (2002) Dec 02 LED:17 and State v. Craig, 115 Wn. App. 191 (2002) March 03 LED:12, the determination of custody hinges upon the “manifestation” of the arresting officer's intent. In other words, rather than the subjective intent of the officer, the test is whether a reasonable detainee under these circumstances would consider himself or herself under full custodial arrest. Typical manifestations of intent indicating custodial arrest are the handcuffing of the suspect and placement of the suspect in a patrol vehicle, presumably for transport. Telling the suspect that he or she is under arrest also suggests custodial arrest, unless the suspect is also told that he or she is free to go as soon as the citation is issued (rather than after he or she is booked, as was the case in Clausen and Craig).

In this case, [the deputy] first arrested Mr. Radka for driving with a suspended license. The trial court found that [the deputy] could have made a custodial arrest but did not do so. The court further found that the deputy did not have a safety concern and intended to cite and release Mr. Radka. Although [the deputy] told Mr. Radka he was under arrest and placed Mr. Radka in the patrol car, additional circumstances would indicate to a reasonable person that the arrest was not custodial. First, the deputy did not put Mr. Radka in handcuffs. Second, the deputy did not frisk Mr. Radka and allowed him to make cell telephone calls from the back of the patrol car, presumably to arrange transportation. Although the trial court erroneously considered [the deputy]'s subjective intent to cite and release Mr. Radka as a factor in determining whether the arrest was custodial, the additional circumstances of the arrest adequately support the conclusion that Mr. Radka's detention was noncustodial.

Under these circumstances, the record supports the trial court's finding that although [the deputy] had probable cause for a custodial arrest of Mr. Radka, he did not actually place Mr. Radka under custodial arrest. Consequently, the deputy had no justification under article I, section 7 to execute a warrantless search incident to arrest. The trial court properly granted Mr. Radka's motion to suppress the evidence.
1.8.2008 8:51pm
Chris B. (mail):
I appreciate the responses Orin. I will look at the Di Re stuff here shortly and will respond in greater details, but I do think it interesting that Goldstein et. al apparently chose not to focus on Di Re after relying on it heavily in their BIO. But I will respond in more earnest in a bit here.


Under your theory of the Fourth Amendment, the word "lawful" is verbiage in the "incident to a lawful arrest" phrase, right? After all, if the arrest is unconstitutional, any search following it is suppressed as a fruit of the poisonous tree. So under your theory, it's just a "search following an arrest" doctrine, and the Supreme Court has been erroneously using the word "lawful" in there ever since it first mentioned the doctrine in 1925. Seems pretty unlikely to me.


Now you know that's not my argument. No one is writing out "lawful" in the "search incident to a lawful arrest" exception. But as LaFave points out, "lawful" in this sense of the Court's jurisprudence is best looked at as synonymous with "Constitutional." Again, hence the language in Robinson: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Obviously it's not such a ridiculous position to hold as the majority of COA's and Professor LaFave all agree.

And there is language in many other cases referring to the significance of state law being simply to define the scope of the crime and whether there was probable cause for the crime. See cases like DeFillippo (though Moore tries to use this in his favor, etc). You agree with the proposition that it is simply probable cause to believe a crime has been committed, not some separate probable cause "to arrest" standard.

And on the "incongruous" point, I recognize that Greenwood or Elkins don't settle the matter once and for all time for all future cases, but they create the relevant category of cases. The bulk of the Fourth Amendment cases that rely on state law are cases that need state law as a benchmark because "probable cause" is not part of the calculus. I'm thinking primarily of the inventory search cases. See e.g. South Dakota v. Opperman.

And I certainly do think that allowing the scope of the Fourth Amendment to vary from state to state - as everyone concedes it must - will be a tough sell. And again, remember state legislatures and even state courts by interpreting state law could ex post expand and contract the Fourth Amendment's reach. As you pointed out to a commentator above, that sort of thing is properly done on the basis of state law or the state constitution: While “‘a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards,’ it ‘may not impose such greater restrictions as a matter of federal constitutional law.’” Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (quoting Oregon v. Hass, 420 U.S. 714, 719 (1975)).
1.8.2008 9:03pm
Chris B. (mail):

Second, I am perplexed that you think Di Re is not a constitutional decision because Justice jackson did not say "Fourth Amendment" in the decision. Quoting from Di Re . . .


Orin, as you hint, your quote is misleading. Just before the part you quote, the Court says:


"The Government now defends the search upon alternative grounds: 1, that search of Di Re was justified as incident to a lawful arrest; 2, that search of his person was justified as incident to search of a vehicle reasonably believed to be carrying contraband. We consider the second ground first.

The claim is that officers have the rights, without a warrant, to search any car which they have reasonable cause to believe carries contraband, and incidentally may search any occupant of such car when the contraband sought is of a character that might be concealed on the person. This contention calls, first, for a determination as to whether the circumstances gave a right to search this car.

The belief that an automobile is more vulnerable to search without warrant than is other property has its source in the decision of Carroll v. United States, 267 U. S. 132. . . ."

. . . How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit?

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.


You say the Court has thus broadly announced that it is interpreting the Fourth Amendment no matter what it is referring to. I apologize for not being more specific when I said that the Court didn't references the Fourth Amendment. I should have simply said it did not reference it at any point in discussing the only question relevant to us. Again, you had indicated how "careful" Justice Jackson was, so I look at his choices here as quite telling.

In any event, he begins the relevant discussion by broadly construing the lawful requirement not as a Fourth Amendment question, but of "the law of arrest," to which he says that the controlling issue is (1) a Congressional Act on point, or, in the absence of one, (2) state law. Again, unless this part of the opinion is not a Fourth Amendment holding I don't know what to do with his repeated statements that this analysis is necessary since Congress hasn't passed any relevant law and thus Congress could overrule the decision by statute. Cf. Dickerson.

Anyway, here is how Justice Jackson frames it:


"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.

Some members of this Court rest their conclusion that the arrest was invalid on § 180 of the New York Code of Criminal Procedure, which requires an officer making an arrest without a warrant to inform the suspect of the cause of arrest, except when it is made during commission of the crime or when in pursuit after an escape. . . .

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.


This is like no Fourth Amendment analysis I have seen. And Justice Jackson concededly knows what he is doing. And again the closing dicta cannot transform this part of the holding into something that it is not.

Finally, I will take a closer look at Judge Hand's opinion and the SG's brief, but you and I both know the Court can and often does rest their holding on grounds different from those of the lower courts or those put forward in the briefs. See e.g. Watters v. Wachovia Bank.
1.8.2008 9:21pm
OrinKerr:
Chris B.,

I think you are simply misinterpreting the passage you identify in Di Re. Here it is:
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.
If you read the lower court opinion and the briefs in Di Re, it's really clear what he's talking about. Jackson needs to find the law that governs the lawfulness of arrests because the exception is the "search incident to a lawful arrest" exception. So he's trying to figure out what law determines lawfulness in the case of a federal arrest for a federal crime. This is exactly the issue Judge Hand wrote on, and what the briefs wrote on; naturally that's what Judge Jackson focused on, too. The section has nothing to do with the supervisory power.

P.S. Please do not suggest that I am making arguments in bad faith. I assure you I am not.
1.8.2008 10:28pm
OrinKerr:
Chris writes:
Obviously it's not such a ridiculous position to hold as the majority of COA's and Professor LaFave all agree.
I didn't said the view was "ridiculous." I said that it is clearly and plainly incorrect. The fact that someone prestigious said something does not make it true; the answer must come from the the law itself.
1.8.2008 10:32pm
OrinKerr:
Chris writes:
Finally, I will take a closer look at Judge Hand's opinion and the SG's brief, but you and I both know the Court can and often does rest their holding on grounds different from those of the lower courts or those put forward in the briefs.
True, the Court can do this. But here the claim is that the Court secretly did so, without citing any cases at all on the supervisory power, and while exactly tracking the Fourth Amendment arguments in the briefs and made by the Court below. I have never seen or heard of anything like that before.
1.8.2008 10:35pm
David Schwartz (mail):
I guess the most general version of this question would be:
If Federal officers are acting pursuant to a State grant of authority (say they're arresting someone for murder in violation of State law) must they comply with State law for the arrest? If the State grants them more protections than the Constitution, are they bound by those protections when they are enforcing State laws and get their authority from those laws?
1.9.2008 12:55am
Chris B. (mail):
Orin,

No I truly was not at all suggesting you were arguing in bad faith. I actually really appreciate the thoughtful discussion and replies, and I think this case is quite interesting. At this point I think we're at a bit of an impasse, as I still think that the better reading of Di Re is that it was an exercise of the supervisory power. But as I also mentioned you don't necessarily have to resolve that question to decide this case. Your reading of the case is certainly plausible, but again in light of the Court's other precedents I don't think it is the best one. I appreciate the opportunity to discuss this and bat my case back and forth.

In any event, it will be argued in a week and we'll see how the argument (and subsequent decision go). Hopefully they specifically address your point about Di Re and the search incident to a lawful arrest exception. I would have to think they will address both the arrest and the search to decide this case. I'm looking forward to it and to your thoughts on both the argument and the decision. Like I said, I didn't intend to imply that you were arguing in bad faith, just making my arguments strongly, as you were in return.
1.9.2008 12:59pm
OrinKerr:
Thanks, Chris. I'm curious -- did you get a chance to read the lower court opinion and the briefs? I think it really does settle the Di Re question.
1.9.2008 1:32pm
Mary Katherine Day-Petrano (mail):
I wonder what will happen when:

State (Florida) has state statute overriding 4th Amendment (no exclusionary rule for vehicle search incident to arrest) anytime a driver is stopped and the computer records of the Dept. Motor Vehicles read that the person does not have a valid license, thereby the driver is arrested.

The state statute further provides that even if there has been a computer record error and the driver really did have a valid drivers license, therefor there was a false arrest, the driver still cannot claim the exclusionary rule for vehicle search incident to arrest -- creating an incentive for dirty cops to plant contraband in the vehicle of innocent drivers they *don't like* upon a Dept. Motor Vehicles record glitch, for which there is no exclusionary rule (motion to supress must be denied).

The State, which is under a RealID Act requirement to make the State's driver's license records accurate and secure -- for numerous purposes such a boarding airplanes, voting, driving, etc. -- has not done so in a manner that can prevent identity theft, driver's license records database tampering, computer glitches, etc.

Now, under the above hypothetical, disabled Florida driver A is pulled over, Officer A finds on a computer database search the Dept. of Motor Vehicles records read Driver A has no valid driver's license. Officer A tells Driver A to step away from the vehicle, arrests Driver A for driving on an invalid or suspended or non-existent license. Officer B comes along and plant contraband in the vehicle while Driver A is under arrest separated from his or her vehicle. Officer A conducts a search of the vehicle incident to Driver A's arrest, finds the planted contraband. Driver A is then charged with numerous additional State and Federal felony contraband offenses.

Disabled Driver A brings a motion to supress under the exclusionary rule. The prosecution invokes the Florida State statutes making it a crime to drive without a valid license and overriding the exclusionary rule for vehicle search incident to arrest.

What result if -- the Florida Dept. Motor Vehicles computer database cannot demonstrate accuracy and security sufficient to meet the requirements of both the RealID Act and Title II of the Americans With Disabilities Act?

It would seem the Florida statutes conflicting with Title II of the ADA would be void and unenforceable due to federal preemption (42 U.S.C. sec. 12201(b); Shotz v. City of Plantation, Fla, (11th Cir. 2003); Barry v. Burdines, (Fla. 1996).

Thus, in the above more complicated hypo, which precedent do we follow? Does disabled Driver A get to claim the exclusionary rule (motion to supress granted) due to the underlying lack of FLorida state safeguards for accuracy and security of the computerized drivers license database?

I say yes.
1.10.2008 2:19pm
Mary Katherine Day-Petrano (mail):
Oh, and I forgot to add in the above hyop, Drive A actually has a valid driver's license (verified by Dept. motor Vehicles Certified Records Custodian official records), but Officer B arranged for Dept. Motor Vehicles employee to tamper with the computer database records to temporarily alter them to wrongly read that Driver A has no valid driver's license.
1.10.2008 2:26pm
Mary Katherine Day-Petrano (mail):
It bears note that Sandra Lambert, Director Div. Drivers License for Florida was at the helm when the 9-11 hijackers got multiple drivers licenses due to the same database lack of accuracy and security posed in the above hypo while Lambert was still at the helm. Now, Florida's inaccurate and insecure drivers license computer database has National Security concerns.
1.10.2008 2:29pm