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Supreme Court Hands Down Virginia v. Moore:
Today the Supreme Court handed down Virginia v. Moore, ruling unanimously in favor of Virginia. Justice Scalia wrote the majority opinion; Justice Ginsburg concurred.

  The gist of Justice Scalia's opinion is that he can't find any authority at all suggesting that the lawfulness of an arrest under state law has ever been relevant to whether an arrest violates the Fourth Amendment. Or perhaps more accurately, he finds himself insufficiently impressed with those cases and authorities that do point in that direction. For example, he gets past United States v. Di Re by saying it was just a case on the federal supervisory power:
Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589--590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest "in [the] absence of an applicable federal statute," id., at 589, and that the Di Re rule applies "except in those cases where Congress has enacted a federal rule," id., at 589--590.
  If you recall my blog post, Why United States v. Di Re Clearly Was Not A Case On The Federal Supervisory Power, you'll realize how bogus this is, but hey, that's govenment work for you. (Scalia adds a nice touch at the end of the case when he characterizes the Court's decision as "reaffirm[ing] against a novel challenge what we have signaled for more than half a century," something that I suspect Justice Jackson might have found a rather puzzling characterization.)

  Only Justice Ginsburg takes on Justice Scalia's mischaracterization of Di Re in her narrow concurrence;
[O]ur decision in United States v. Di Re, 332 U. S. 581, 587--590 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned on the Fourth Amendment and not to our "supervisory power," ante, at 72[fn2]

[fn2] The Court attributes Di Re's suppression ruling to our "supervisory power," not to "a rule we derived from the Constitution." Ante, at 7. Justice Jackson, author of Di Re, however, did not mention "supervisory power," placed the decision in a Fourth Amendment context, see 332 U. S., at 585, and ended with a reminder that "our Constitution [places] obstacles in the way of a too permeating police surveillance," id., at 595. The Di Re opinion, I recognize, is somewhat difficult to parse. Allied to Di Re's Fourth Amendment instruction, the Court announced a choice-of-law rule not derived from the Constitution: When a state officer makes a warrantless arrest for a federal crime, federal arrest law governs the legality of the arrest; but absent a federal statute in point, "the law of the state where an arrest without warrant takes place determines its validity." Id., at 588--589.
  I don't think Justice Jackson saw that as a choice-of-law rule not derived from the Constitution; In 1948, back before the incorporation of the Fourth Amendment, the only agents regulated by the Fourth Amendment were federal agents. At the time, such a rule would have seemed a plausible way to determine the lawfulness of the arrest, which he, Learned Hand, and the rest had understood as resting on statutory arrest law. But maybe you have to be more of a Fourth Amendment geek than any Supreme Court Justice would be to see that. And in any event, kudos to Justice Ginsburg for at least raising the Di Re issue.

  I plan to blog more on Moore in the future, time-permitting. Stay tuned.
Chris B. (mail):
I'm looking forward to your commentary, especially since Moore generated such active commentary here when the case was argued. It's fascinating and I think this case is more significant than people might realize, especially just looking at the federal/state balance going forward, and overruling a line of state cases holding that the "search incident to lawful arrest" exception refers to state law violations as well as federal constitutional ones. (Though I agree wholeheartedly with the opinion, as my extensive comments in the other threads indicates.) In any event, I look forward to the commentary.

Oral Argument in Virginia v. Moore
Why the Defendant Should Win in Virginia v. Moore
4.23.2008 1:03pm
JonC:
Sorry for being off-topic, but Prof. Kerr, I was wondering whether you had any thoughts on Baze vis-a-vis the JGR Umpire Watch.
4.23.2008 1:55pm
OrinKerr:
JonC,

No, I don't. I'm curious, though, what are your thoughts on Virginia v. Moore?
4.23.2008 1:59pm
Dilan Esper (mail) (www):
Seems to me like Ginsburg is clearly right and Scalia is wrong. Of course, Scalia's fans in these comment threads would seem to think the man NEVER misrepresents the law to get the result he wants. After all, he's an originalists, and originalism is the only sound constitutional theory because it prevents judges from doing that sort of thing, right?
4.23.2008 2:00pm
OrinKerr:
Dilan,

Of course, the correct originalist result is that the Fourth Amendment doesn't apply at all to Virginia.
4.23.2008 2:04pm
Justin (mail):
Is thee originalist interpretation of the Constitution missing an amendment in the teens? :)
4.23.2008 2:07pm
JonC:
Prof. Kerr: Fair enough. My thoughts are that your commentary on Di Re are fairly persuasive, and that the Court's discussion of it is therefore likely mistaken. But in response to Dilan Esper, a question: given that the opinion was wholly unanimous other than RBG's narrow concurrence, is it really fair to characterize Scalia as misrepresenting the law? Seven other justices didn't think so. Prof. Kerr may be right about Di Re's discussion of the supervisory power, but contra the title of his post on that subject, I'm not sure that his conclusion is "clearly" the case. It seems like it's a relatively close issue on which reasonable people could disagree-- not particularly the stuff from which over-the-top condemnations of originalism necessarily follow.
4.23.2008 2:10pm
OrinKerr:
Justin: I have done some careful originalist research -- more careful than any scholar before me, living or dead -- and I have discovered that the 21st amendment was originally understood to de-incorporate the Bill of Rights. My article is forthcoming in the Harvard Law Review, and I will post a link when it is up on SSRN.
4.23.2008 2:11pm
vassil petrov (mail):
Of course, the correct originalist result is that the Fourth Amendment doesn't apply at all to Virginia.

So Justice Frankfurter is right, Justice Black's wrong. I'm not so sure. I find the original Palko precendent really inconvincing. The wholle implicit in the concept of ordered liberty stuff seems very gemacht to me (pitty Justice Butler dissented without opinion).
4.23.2008 2:14pm
William Spieler (mail) (www):
Ah yes, of course any reasonable person would do something that a state's laws expressly forbid, that is clearly what is meant by a reasonable seizure.

Why the hell is Scalia inventing state interests when the legislature in question, acting with its due deliberation and wisdom, declared that there is no interest in arresting people driving on a suspended license?
4.23.2008 2:16pm
OrinKerr:
But in response to Dilan Esper, a question: given that the opinion was wholly unanimous other than RBG's narrow concurrence, is it really fair to characterize Scalia as misrepresenting the law? Seven other justices didn't think so.

I don't think he did it intentionally. I would guess he just wasn't terribly interested in the issue. This is obviously just speculation, but I would think that from the Justices' perspective there are so many cases the Court has pending, this seems like a very minor one, and the brief for Moore barely even mentioned this issue. Plus, some respected Fourth Amendment scholars have (incorrectly) said that Di Re was a supervisory powers case. Given that, this wouldn't have seen like a very important issue deserving of lot of research.
4.23.2008 2:20pm
PatHMV (mail) (www):
Dilan Esper, your comment makes no sense whatsoever. As Justice Ginsberg opinion shows, it is entirely possible to reach what you claim is Scalia's "desired result" without making what you and Orin consider to be errors. Are you suggesting he intentionally misrepresented the law just for the fun of it, even though the same result could be reached without such "misrepresentation"?
4.23.2008 2:32pm
PatHMV (mail) (www):
William Spieler... you might try reading the opinion, giving particular focus to the portion of the opinion describing the consequences for the espoused policy of Virginia, should the Court adopt a contrary result. Virginia policy is that violations of statutory requirements by law enforcement officers should NOT result in the exclusion of evidence gained thereby. That is the Virginia policy. If the contrary rule were adopted (i.e., the rule rejected 9-0 by the Supreme Court), then Virginia would either have to change their law regarding when an arrest is proper or they would have to watch all evidence gained as a result of the statutorily prohibited arrest be excluded from trial, even though Virginia policy makers would prefer not to do so.
4.23.2008 2:35pm
OrinKerr:
If the contrary rule were adopted (i.e., the rule rejected 9-0 by the Supreme Court), then Virginia would either have to change their law regarding when an arrest is proper or they would have to watch all evidence gained as a result of the statutorily prohibited arrest be excluded from trial, even though Virginia policy makers would prefer not to do so.

So says Scalia. But actually, I think it depends on whether you think the Virginia policy makers were making their rules with then-existing Fourth Amendment doctrine in mind.
4.23.2008 2:41pm
Roscoe B. Means:
I, for one, found the earlier post on the question quite unconvincing. The Di Re opinion does not explicitly incorporate state law into the Fourth Amendment. Unlike the Moore case, Di Re was a federal prosecution in the lower federal courts. The Supreme Court opinion merely says, at least as I read it, that state law was an appropriate measure for a federal trial court to use in determining the lawfulness of the arrest, in a case where the parties had so stipulated, and the lower courts had all accepted the stipulation. Even Justice Ginsberg seems to recognize this in her footnote. I would certainly think that a Supreme Court intending to announce a constitutional rule would explicitly say so - especially if the rule is one that gives state legislatures the power to make the Fourth Amendment different in New Jersey than it is in Nebraska.
4.23.2008 2:46pm
Dilan Esper (mail) (www):
Um, folks, I was making a joke (which Professor Kerr appeared to get).

But the serious point behind it is, yes, there are 1000 ways for a Supreme Court justice to be unprincipled, 999 of which have nothing to do with originalism, and therefore people like Scalia and Bork (and their fans in these comments threads) oversell the power of originalism in forcing Supreme Court justices to hew to principle and keep their personal beliefs out of the process.
4.23.2008 2:49pm
OrinKerr:
The Di Re opinion does not explicitly incorporate state law into the Fourth Amendment.

Sure it does, for the purposes of determining the lawfulness of the arrest in the "search incident to a lawful arrest" doctrine.

in a case where the parties had so stipulated, and the lower courts had all accepted the stipulation.

Can you identify where this was merely stipulated? As I read it, it was not stipulated, it was held, by a lower court judge whose name was Learned Hand. No dummy, that Learned Hand.

I would certainly think that a Supreme Court intending to announce a constitutional rule would explicitly say so.

And indeed it did, in a case called United States v. Di Re.
4.23.2008 2:51pm
DWC (mail):
As I read Virginia, it would appear to overrule decisions like Edgerly v. City and County of San Francisco, 495 F.3d 645, 653 (2007), and Bingham v. City of Manhattan Beach, 341 F.3d 939, 950 (9th Cir. 2003), insofar as those decisions hold that a custodial arrest made in violation of state law violates the Fourth Amendment.

Virginia appears to say that its holding – a warrantless arrest based on probable cause that a crime was committed is per se reasonable under the Fourth Amendment – derives from the framers’ acceptance of the common law proposition that such arrest was reasonable. But what if the crime at issue is an infraction? “Infractions” are a category of crime unknown at common law. Though an infraction is statutorily classified as a “crime,” punishment for an infraction is a fine only (at least under California law, see Cal. Penal Code § 19.6). In Virginia, the crime at issue was punishable by imprisonment. When the Fourth Amendment was adopted, there were only two categories of crime, both defined by incarceration (misdemeanor = year or less; felony = more than a year). Thus, is it still correct to conclude that the framers would have believed it reasonable to make a custodial arrest for a “crime” for which there cannot be any imprisonment? Is Virginia distinguishable on this basis? (But see Atwater v. Lago Vista, 532 U. S. 318 (2001) (state law authorized an arrest for an offense for which the only punishment was a fine; court holds that the state law did not violate the Fourth Amendment.)
4.23.2008 3:04pm
WRD (mail):
Prof. Kerr,

How do you answer Justice Scalia's point that Di Re cannot stand for a point of constitutional law inasmuch as the Court invited Congress to revisit the issue? Wouldn't that place the ruling of Di Re into something like Henry Monaghan's category of "Constitutional Common Law"--so that it would be "constitutional" in some sense (point to Kerr) but not in the sense meant by Justice Scalia (and even Ginsburg's footnote) here (point to the nine Justices of the Supreme Court)?
4.23.2008 3:07pm
Laura S.:

Of course, the correct originalist result is that the Fourth Amendment doesn't apply at all to Virginia.


What? I continually fail to understand how originalism == repeal of the 14th amendment. It does not. It may be that the language of the 14th amendment was too broad, but the language is as it is.

The annoying thing is really that the Justices continue with the farce of hinging incorporation on Due Process when the privileges and immunities clause is clearly a better home. The slaughterhouse cases represent nonsensical law. Its time for a change.
4.23.2008 3:10pm
Gilbert (mail):
It is interesting to compare this opinion to Justice Scalia's dissent in Georgia v. Randolph where he accuses Justice Stevens of "confus[ing] the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred."

Granted, the Fourth Amendment _originally_ referred only to federal law, but (and in response to the suggestion that "Of course, the correct originalist result is that the Fourth Amendment doesn't apply at all to Virginia") that is an unduly impoverished understanding of original intent. Unless hypothesize away incorporation, the changes duly enacted in the constitution thereby amend the portion of that intent that remains relevant.
4.23.2008 3:13pm
OrinKerr:
What? I continually fail to understand how originalism == repeal of the 14th amendment. It does not. It may be that the language of the 14th amendment was too broad, but the language is as it is.

Laura,

No one is repealing anything. But my sense is that most historians find the incorporation doctrine of the 1950s a fudge, at least as it applies to the 4th Amendment.
4.23.2008 3:21pm
PatHMV (mail) (www):
In Louisiana, at least, there are traffic laws which are known as "secondary offenses," which means that the police are not authorized to pull over and ticket a driver just for that offense. The secondary offense can be ticketted only if the officer pulls over the car for some other reason. Until recently, one good example was the state seatbelt law. It was unlawful for a police officer to pull you over just because he saw you not wearing a seatbelt, but if he pulled you over for speeding and saw you weren't wearing a seatbelt, he could ticket you for both the speeding and the seatbelt.

So suppose a cop pulled over a driver for a seatbelt violation. Stipulate there was no other cause for the traffic stop. In plain view on the side of the road (which he would not have seen but for the unauthorized stop) the officer spots a balloon of heroin.

By the logic of the Court, the heroin would be admissible, presuming that it was admissible under state law, even if the officer knew at the time he had no lawful right to stop the vehicle, because state law declares that the "penalty" for such an improper stop does not include exclusion of evidence gained thereby.
4.23.2008 3:22pm
OrinKerr:
Gilbert,

I'm not trying to be unduly impoverished. Rather, I am trying to take originalism truly seriously, rather than as a cover for sensible results, and it seems to me as a matter of history that the case for incorporation of the 4th is pretty shaky.
4.23.2008 3:24pm
Justin (mail):
Gah, I can't tell where Orin is kidding and where he's being serious. Crap.
4.23.2008 3:27pm
OrinKerr:
How do you answer Justice Scalia's point that Di Re cannot stand for a point of constitutional law inasmuch as the Court invited Congress to revisit the issue?

That one's easy. You have to remember that at the time, no one knew what law governed federal arrests. Think about that: There was literally no precedent on the law governing federal arrests. So all Di Re said was that if Congress wants to make law governing federal arrests, it can do so, and the federal legislation will become the law of federal arrests. But absent that, the Court held, it would assume that federal arrests are governed by state law (because that was the only existing source of authority that could provide a standard for the lawfulness of arrests). This would have seemed quite natural at the time, as federal law enforcement was in its infancy at the time; Congress didn't even pass a law regulating the issuance of search warrants until 1917.
4.23.2008 3:29pm
OrinKerr:
Justin,

1:11 was a joke; the rest are serious.
4.23.2008 3:30pm
Gilbert (mail):
OrinKerr,

Fair enough, but even so, an originalist understanding doesn't have to deny incorporation. If the Bill of Rights had been incorporated in the Privileges and Immunities clause on the basis of the original intent of the framers of the Fourteenth Amendment, Justice Scalia's criticism of Stevens in Randolph looks like it applies with full force to him in this case.
4.23.2008 3:33pm
Anderson (mail):
But in response to Dilan Esper, a question: given that the opinion was wholly unanimous other than RBG's narrow concurrence, is it really fair to characterize Scalia as misrepresenting the law?

Folks, this is perhaps a tenable reading of what "law" is, but I doubt anyone's really ready to accept all the consequences of that reading.

I don't think any practicing lawyer would have any trouble accepting that even all 9 justices of the Supreme Court could in fact get the law wrong. Not that it happens often, or even necessarily *has* happened, but it could happen.

Otherwise, you're not too far off from arguing that we should just figure out what The Philosopher had to say on the subject.
4.23.2008 3:35pm
OrinKerr:
I don't think any practicing lawyer would have any trouble accepting that even all 9 justices of the Supreme Court could in fact get the law wrong. Not that it happens often, or even necessarily *has* happened, but it could happen.

Sure, happens every Term. Especially in areas like ERISA, bankruptcy, tax, etc.
4.23.2008 3:42pm
alias:
I take Prof. Kerr's statement that Scalia was "mischaracterizing" Di Re to mean that Scalia was mistaken as to what that case held, not that he was deliberately misreading it to support a point he wanted to make. I'm curious as to why some of the commenters seem to think otherwise.
4.23.2008 3:45pm
Roscoe B. Means:
The Di Re opinion does not explicitly incorporate state law into the Fourth Amendment.

Sure it does, for the purposes of determining the lawfulness of the arrest in the "search incident to a lawful arrest" doctrine.

in a case where the parties had so stipulated, and the lower courts had all accepted the stipulation.

Can you identify where this was merely stipulated? As I read it, it was not stipulated, it was held, by a lower court judge whose name was Learned Hand. No dummy, that Learned Hand.

I would certainly think that a Supreme Court intending to announce a constitutional rule would explicitly say so.

And indeed it did, in a case called United States v. Di Re.


As to "stipulated," I thought I was just taking you at your word from the prior post. Now that I've read Judge Hand's opinion, I see that the "agreement" was not as explicit as I had supposed. What was "agreed" (by waiver, rather than assent) was that the court would determine the lawfulness of the arrest, rather than rely on untimeliness of the objection. Then the court "assumed" that the lawfulness of the arrest was dependent on Sec. 177 of the NY Code of Criminal Procedure. Whether Sec. 177 was really the proper gauge of Fourth Amendment reasonableness was not directly addressed, so far as I can see. But, even though I see some ambiguity, I'd now agree on balance that the circuit court decision was a Fourth Amendment decision.

At the Supreme Court level, though, it looks plain to me that the Court avoided a constitutional issue by stating:

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.

That certainly looks like an exercise of supervisory power - adopting a "federal common law" rule - to me. If this was a ruling that the Fourth Amendment required adherence to the law of the state where the arrest took place, the notion that Congress would have the power to change the rule by statute would be absurd, wouldn't it?
4.23.2008 3:52pm
OrinKerr:
Roscoe,

I explain the obvious flaw with your argument in this comment.
4.23.2008 3:56pm
Roscoe B. Means:
Maybe my obstinacy is blinding me, but I don't see the answer in that comment. Here is the complete, operative paragraph from the Supreme Court opinion in Di Re:

"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."

That paragraph overflows with statements that Congress has the power to set a standard for use in the federal courts that does not follow the law of the state where the arrest takes place. I just don't see how one can read that to say that adherence to the state law is a constitutional requirement.
4.23.2008 4:07pm
OrinKerr:
Roscoe,

You're missing the fact that in Di Re was a federal arrest, and the the Court was trying to figure out what statutory law of arrest is the correct body of law to use to determine the lawfulness of a federal arrest for the purposes of the "search incident to a lawful arrest" exception. That isn't an issue with a state arrest for a state crime as in Virginia v. Moore; obviously the state law controls for those purposes. Or so you would think based on Di Re.
4.23.2008 4:27pm
kelvin mccabe:
Speaking humbly as someone who dabbles in criminal law - I hate this opinion.

Particularly, the fact that the Court says: arrests illegal under State law are not automatically unreasonable under the federal constitution THEREFORE a search incident to an illegal (under State law) but not unreasonable (under the federal constitution) arrest by State officers is perfectly valid.

And then there is this gem (p.12): "The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure {i thought thats what handcuffs are for - to reduce exposure?} which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234–235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here."

So - - Officers are justified in searching whenever they make an arrest -- but are not justified in searching when merely issuing a citation. Defendant's arrest in this case was illegal because it was a citation only type offense but the cops arrested him anyway. The result: The Cops were justified in searching. So the State cops in this case (assuming that the citation only option was appropriate as the court seems to do when looking at Virginia law) WERE NEVER JUSTIFIED IN SEARCHING INCIDENT TO ARREST TO BEGIN WITH!

The Court says that it is unwise to tailor the federal constitution's 4th amendment's prohibitions to state by state arrest analysis. However, the court is implicitly saying that State officers can tailor their own conduct (illegal as it may be under State law) to federal standards. In other words, in conjunction with other Sup Ct abortions (such as Whren, Atwater) State officers have no incentive to follow their own law whatsoever. So long as they find drugs...who cares. Let the defendant file his motion to quash arrest for the petty offense/traffic offense - -lose that specific battle (arrest was illegal by statute) - - but win the war (felony drug evidence comes right in - guy gets 5 yrs).

This really infuriates me. There is no other incentive besides suppression to get police to follow the law every single time. Take away that incentive, and the results are readily predictable.

Prof Kerr's analysis on this issue seems persuasive - but i have a question. IL follows the lock-step doctrine on 4th amendment issues as our State constitution's search and seizure clause is almost identical to the 4th - Say IL had a statute that prevented arrets for a certain level of offense (all class C misdemeanors for example). The cops make an illegal arrest of a suspect for a class C misdemeanor - and he files a motion alleging violation of the State constitution's version of the 4th amendment. It gets interpreted in lock-step with Sup Ct precedent so Moore v Virginia applies. What the hell happens then? Would the IL Sup Ct be required to uphold the search under the IL constitution despite the arrest being illegal under IL law?
4.23.2008 6:00pm
alias:
I guess I'm confused.

(1) Suppose that, instead of being a low-level citation-only offense, driving without a license in VA wasn't even against the law. Would the arrest have been unconstitutional then--i.e., isn't it a 4th Am. violation to arrest someone for something that isn't a crime?

(2) If I'm right about (1), then why is it that state law regarding what is and isn't a crime can affect the scope of the 4th Amendment, but state law regarding what is and isn't an arrest-worthy offense cannot?
4.23.2008 6:18pm
kelvin mccabe:
'arrets'above should be 'arrests' -- sorry should have utilized preview function.
4.23.2008 6:25pm
CJColucci:
It is often more important -- at least to everyone but the immediate parties to the case -- that we have some definite rule rather than any particular rule. This looks like one of those occasions.
4.23.2008 6:31pm
Thales (mail) (www):
"Justin: I have done some careful originalist research -- more careful than any scholar before me, living or dead -- and I have discovered that the 21st amendment was originally understood to de-incorporate the Bill of Rights. My article is forthcoming in the Harvard Law Review, and I will post a link when it is up on SSRN."

This is outstanding. Hopefully the sequel to your article will establish that the 21st amendment is *currently* understood to de-incorporate the Bill of Rights. Also that I have a First Amendment right to run an alien smuggling ring.
4.23.2008 6:33pm
Alaska:
Much of the above discussion focuses upon the distinction between federal supervisory power and the 4th amendment. Fair enough. I have a bit of a different question, though.

In a throw-away line at the beginning of the opinion, Scalia notes that Virginia does not have the exclusionary rule for illegally obtained evidence. How significant is that for this holding? My state does have the exclusionary rule, both as a statute and rule of procedure, so I think that in these circumstances, I would be in good shape in my state court. However, if a state arrest involving a wrongful arrest is transferred to federal court, though, my client would seem to be without a remedy. That seems to be really wrong. Am I missing something? I just want to make sure I'm reading the decision correctly.
4.23.2008 7:12pm
OrinKerr:
Alaska,

Yes, you are reading the decision correctly.
4.23.2008 7:23pm
George Weiss (mail) (www):
PatHMV
If the contrary rule were adopted (i.e., the rule rejected 9-0 by the Supreme Court), then Virginia would either have to change their law regarding when an arrest is proper or they would have to watch all evidence gained as a result of the statutorily prohibited arrest be excluded from trial, even though Virginia policy makers would prefer not to do so.

OrinKerr:
So says Scalia. But actually, I think it depends on whether you think the Virginia policy makers were making their rules with then-existing Fourth Amendment doctrine in mind.

orin-i would love to hear more about this in your next post.

more broadly, what remedies from a statutorily prohibited arrest are now available?

exclusionary remedies? (this opinion seems to end all hope of that-although you mention something about intent of VA law in VA. what about other states?
civil remedies? most people arrested illegally are guilty of something anyway, so it would seem unlikely there is any damage.
or just administrative punishment like being reprimanded?
4.23.2008 7:33pm
ACSBlog:
"I have done some careful originalist research -- more careful than any scholar before me, living or dead -- and I have discovered that the 21st amendment was originally understood to de-incorporate the Bill of Rights."

I hope that passage doesn't become the most improperly quoted thing Prof. Kerr ever joked about, left for years to linger in the BlogoSphere waiting for that forthcoming article from the evil Volokh Conspirator...
4.23.2008 8:08pm
Roscoe B. Means:
Maybe the reason I'm having difficulty with this is that I am very accustomed to dealing with this distinction in the context of due process claims brought under sec. 1983. In that context, it is very clear that state officers who violate state law do not necessarily violate the Constitution. There is no due process right to have the state follow its own statutory procedures, for example, unless those procedures are themselves congruent with the federal minimum, or the state law guarantees a specific outcome when the substantive predicates are met in the state process. I'm so accustomed to the differentiation in that context that I don't see anything unusual about it in this one.

That's the way I see it here, anyway. If the State of Wyoming has a statute that says arrests for misdemeanors must be made between 7AM and 7PM,MST, and a Wyoming officer misreads the clock or forgets about daylight savings time and makes the arrest at 7:30AM in the summer (only 6:30MST), it seems silly to argue that the arrest violated the Fourth Amendment, and that the "violation" warrants suppression of evidence. (It's been many years since I practiced criminal law, but it's my recollection that the exclusionary rule was also a prophylactic rule, not a constitutional mandate. Has that been changed?)
4.23.2008 9:06pm
Crunchy Frog:
ACSBlog:

And here I thought it had something to do with me owing him a beer.
4.23.2008 9:19pm
Repeal 16-17 (mail):
Assuming arguendo that Professor Kerr is correct, did today's decision partially or completely overrule Di Re?
4.23.2008 9:35pm
jagbn:
So what becomes of the Terry stop?

Now a police officer can simply arrest a suspicious person on some trumped up or imagined charge. Search the person as a search incident to arrest. Nothing found? Release the person. Incriminating evidence? The justification for the original arrest is irrelevant--even if the arrest was unlawful, the evidence is still admissible.
4.23.2008 11:57pm
OrinKerr:
I hope that passage doesn't become the most improperly quoted thing Prof. Kerr ever joked about, left for years to linger in the BlogoSphere waiting for that forthcoming article from the evil Volokh Conspirator...

Indeed, I have discovered a truly marvelous demonstration of this proposition which this margin is too narrow to contain.
4.24.2008 12:19am
Fub:
OrinKerr wrote at 4.23.2008 11:19pm:
Indeed, I have discovered a truly marvelous demonstration of this proposition which this margin is too narrow to contain.
Don't worry. After a few hundred years of incorrect demonstrations, some Wiley guy will come along and do it right.
4.24.2008 2:24am
HankP (mail) (www):
I'm not a lawyer, but from what I can gather the result of this ruling is that the FLDS case in the previous thread can proceed even though the original complaint and basis for the raid is false, correct? In other words, even though the arrests were based on a false call, the people arrested have no legal basis to contest the arrest? And the state government can hold the children until the DNA tests come in to see if any charges should be filed?
4.24.2008 5:31am
member:
Justice Scalia delivering the majority opinion for the court:

http://www.ica-d.de/srv/chr/pic/p0558c.jpg
4.24.2008 11:41am
member:
Justice Scalia delivering the majority opinion for the court:


link
4.24.2008 11:45am
whit:
"(2) If I'm right about (1), then why is it that state law regarding what is and isn't a crime can affect the scope of the 4th Amendment, but state law regarding what is and isn't an arrest-worthy offense cannot?"

because an arrest for something that is not a crime is an "unreasonable" (under the 4th) seizure.

but just because a crime is not arrestable under state law by statute doesn't mean it's unreasonable under the 4th to make that arrest.

look at misdemeanor presence rule, for instance. some crimes are not arrestable in my state unless i witness them. iow, i can't arrest based on probable cause for the past act. i can stop and cite and release. but i can't make a custodial arrest (booking).

however, it seems under this ruling that if i did make the custodial arrest, for example because i didn't realize it was a presence only misdemeanor, then searched the guy and found evidence that he had committed a murder, that this evidence would be good to go under this ruling.
4.24.2008 8:53pm
whit:
"This really infuriates me. There is no other incentive besides suppression to get police to follow the law every single time. Take away that incentive, and the results are readily predictable"

this is baseless hyperbole. first of all the suppression (dis)incentive doesn't work every time. second of all there are jurisdictions, england comes to mind that do not have automatic suppression like we do. do they have NO OTHER INCENTIVE?

also, there is a "cure". simply put, state legislatures can DECRIM these offenses that they don't want to allow custodial arrest for. iow, make them civil infractions. if they aren't "important" enough to allow a custodial arrest, then why should they be crimes in the first place. make them infractions. it lowers the standard of evidence, frees up cops from testimony (most civil infractions in my state do not have police testimony, since the judge can accept the notes on the citation. unless the person cited requests the officer testify and pays the fee :) ) .

the point is that officers arresting people for "non-arrestable" misdemeanors are still making arrests based on probable cause of a crime.
4.24.2008 8:57pm