Vol. 3, No. 2 | October 2008

Searches Incidental to Custodial Arrest Prohibited by Statute

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu  

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Virginia v. Moore (U.S. Supreme Court, 4-23-08)

Facts:  Two police officers had stopped Moore for driving with a suspended operator’s license.  The officers arrested Moore for this offense and eventually searched him incident to the arrest, finding cocaine and a large amount of cash on his person.  The arrest violated the provisions of Va. Code §19.2-74.  That statute indicates that for this offense, the offender shall be issued a citation and released (unless the offender refuses to promise to appear in court or unless it reasonably appears that the offender will not desist from committing the offense with which he is being charged).  He was charged with possession of cocaine with intent to distribute.

Issue:  Are the fruits of a search of person incident to the person’s arrest admissible when a statute prohibits a custodial arrest in the circumstances?

Answer:  It depends on state law. (9-0, Justice Scalia for the court)

1.       An arrest for a minor offense that was supposed be handled by citation under Va. Code 19.2-74 does not violate the 4th Amendment.  Therefore it is up to the state as to what remedy it wants to impose for such an illegal arrest.  Virginia case law already holds that evidence will not be excluded where it is obtained by the police in a manner that violates state law, but not the U.S. Constitution. 

The Court’s reasoning:

2.       The history of the 4th Amendment suggests that its Framers did not intend to incorporate the statutory law of a particular state into it.

3.       The question then is whether the arrest made in this case was reasonable under the 4th Amendment.  The answer to that question is not affected by any protections an individual state may choose to extend to its people beyond what the 4th Amendment requires.  “A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.  If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes…. Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.”

4.       What becomes then of Knowles v. Iowa (1998), which held that under the 4th Amendment, there is no “search incident to citation” exception to the warrant requirement?  The Virginia Supreme Court had taken the position that §19.2-74 defines when citations must be issued, and, under Knowles, when a citation must be issued there can be no valid warrantless search incident to issuance of the citation.  “We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are ‘an adequate basis for treating all custodial arrests alike for purposes of search justification.’”

5.       The only situation where Knowles would seem to have any continuing significance then is in that unlikely situation where a police officer is foolish enough to issue a citation to someone he wants to search.

6.       Are there any legal remedies available to a person who has been illegally arrested under §19.2-64?  The arrestee can probably file a false arrest suit under state law.  If the search incident to the illegal arrest turned up contraband, the jury appeal of such a case would appear to be so low that most lawyers would probably be uninterested in taking on such a case.  However, if the person arrested illegally turns out to be someone of some stature in the community and the search incident turns up nothing incriminating, that case would have considerably more jury appeal.  In addition, if the plaintiff can show a pattern of illegal arrests in flagrant disregard of the statute, the prospect of extensive punitive damages becomes very significant

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.