April 2007 | Vol. 2, No. 1

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

            On November 3, 2006, the Virginia Supreme Court issued its decision and opinion in Moore v. Commonwealth,1 a case of great significance to the law enforcement community.  The case resolves an important issue about the constitutionality of warrantless searches incident to an improper arrest under Virginia Code §19.2-74.

            Two Portsmouth 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.  He was charged with possession of cocaine with intent to distribute.

            Moore moved to suppress the cocaine and cash.  His argument was that §19.2-74 required the officers to issue a summons to Moore and prohibited them from making a custodial arrest.  Since the U.S. Supreme Court’s opinion in Knowles v. Iowa2 prohibits a warrantless search incident to issuance of a citation or summons, Moore further argued that the officers could not search him without a warrant.

            The trial court rejected this argument.  At a bench trial, the trial court also convicted Moore and sentenced him to five years in prison, suspending eighteen months of the sentence.  Moore appealed to the Virginia Court of Appeals.

            A divided panel of the Court of Appeals overturned Moore’s conviction.  It ruled that the search conducted by the officers violated the 4th Amendment.  The Court of Appeals reheard the case en banc and ruled in favor of the government in a 7-4 decision.  The Virginia Supreme Court overturned the en banc court’s ruling in a unanimous decision, holding that the arrest of Moore was unconstitutional and suppressing the evidence seized as a result of the arrest.

            The two U.S. Supreme Court cases of greatest relevance to the Moore case are Knowles and Atwater v. City of Lago Vista.3  In Knowles, a police officer had stopped Knowles for speeding.  An Iowa statute gave the officer the choice of making a custodial arrest or issuing a citation for the offense.  The statute also indicated that, since a custodial arrest was authorized for the offense, the officer could conduct a search incident to the stop even if the officer decided to issue a citation.  The Supreme Court indicated (unanimously) that, under the 4th Amendment, there is no “search incident to citation” exception to the warrant requirement and ruled that the search was unconstitutional.

            In Atwater, a police officer had made a custodial arrest of Ms. Atwater for driving without her seat belt fastened.  Texas state law permitted a custodial arrest for this offense.  Ms. Atwater argued that a custodial arrest for such a minor offense is an unreasonable seizure, prohibited by the 4th Amendment provision against unreasonable searches and seizures.  She suggested that custodial arrests are unreasonable for such minor offenses (defined as “fine-only offenses”).

            The Court rejected this argument.  It felt that it would be difficult for officers to be able to determine in many cases whether they were dealing with a “fine-only” situation.  Instead, the Court felt that, so long as the officer had probable cause to conclude that an offense had occurred, the 4th Amendment imposed no limitations on the authority of the officer to make a custodial arrest.

            The en banc decision of the Virginia Court of Appeals conceded that §19.2-74 prohibited the officers in Moore from making a custodial arrest of Moore for driving without a valid license.  That statute requires that when a police officer detains anyone for commission of a Class 1 or Class 2 misdemeanor committed in the officer’s presence, the officer must release the detained person with a summons unless 1) the person refuses to discontinue the unlawful act or refuses to give a promise to appear in court on the charge or 2) the officer reasonably believes that the person will disregard the summons or will cause harm to himself or to others.

            Driving with a suspended license is a Class 1 misdemeanor, so the provisions of §19.2-74 were clearly applicable unless one of the exceptions to the summons mandate was present.  The court examined the first exception and noted that any conclusion that the detained person would not discontinue the unlawful act or would refuse to give a promise to appear must be “based upon the offender’s actual conduct, not potential future conduct.”  The court concluded that Moore’s conduct at the time he was stopped neither suggested that he would continue to drive nor constituted a refusal to promise to appear.  As to the second exception, the court noted that the key is whether a police officer in the circumstances could believe reasonably that the offender would disregard the summons or cause harm.  Since Moore did not argue with officers and the officers had no previous experience with him, there was no reason for them to think that he would disregard the summons or cause any harm to himself or to others.4

            While the en banc court concluded that the custodial arrest of Moore violated §19.2-74, that did not necessarily mean that the fruits of the search had to be suppressed.   Of course, U.S. Supreme Court case law holds that evidence obtained by the police in violation of the 4th Amendment ordinarily must be excluded as evidence introduced at trial to prove the guilt of the person whose 4th Amendment rights were violated.  However, Virginia case law establishes that evidence obtained in violation of state law does not have to be excluded.5  Therefore, the court needed to determine if a violation of §19.2-74 is also a constitutional violation.

            In determining that it is not, the en banc court placed great reliance on language in Atwater indicating that when “an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”  The court also cited a California case, People v. McKay,6 in noting that the “Court’s holding in Atwater …. was not contingent upon the construction of the particular Texas statute.”

            The four dissenting judges agreed with the majority that Moore’s arrest violated §19.2-74, but they disagreed with the majority’s conclusion that the illegal arrest was not also a violation of the 4th Amendment.  The dissenters’ approach focused primarily on Knowles’ prohibition against searches incident to citation.  They stressed that §19.2-74 makes what the officers did a citation situation.  The officers cannot avoid the ramifications of Knowles by calling what they did an arrest, when §19.2-74 forbids an arrest.

            This point was reiterated by the Virginia Supreme Court in its unanimous opinion, written by Senior Justice Carrico.  The court discussed its own holding in Lovelace v. Commonwealth, a case cited by Moore.  In that case, the court had held unlawful a search of Lovelace by a Deputy Womack.  Womack had detained Lovelace for an open container violation and his search of Lovelace had discovered marijuana and cocaine.  The court in Moore described its holding in Lovelace as concluding that “[b]ecause Womack was authorized to issue only a summons for the alcohol-related offense, he could not lawfully conduct a full field-type search incident to arrest” and indicated that “the same conclusion applies to [Moore].”

            The court also addressed the point made by the en banc court that the language quoted above from Atwater means that an arrest made in violation of a state restriction on custodial arrests is not a violation of the 4th Amendment.  The court concluded that Atwater “provides little support for the Commonwealth’s position in this case.  The Texas statute ‘expressly authorizes “any peace officer  [to] arrest without warrant a person found committing a violation” of [the Texas] seatbelt laws …. although it permits police to issue citations in lieu of arrest” [quoting from Atwater].  The authority to effect such an arrest is lacking from our §19.2-74, the statute at issue in this case.  Furthermore, Atwater only involved the legality of an arrest; it did not involve any question about a search incident to arrest.”

            While this latter statement about Atwater may be true, as far as it goes, it really does not address the issue of whether an arrest made in violation of state law violates the 4th Amendment.  In fact, the court never really addresses that issue very convincingly, except to say that Knowles prohibits searches incident to citation and then suggesting that it is state law that determines when we have a citation situation, as opposed to an arrest.  This point could (and should) have been buttressed by a point made by the dissent to the Court of Appeals en banc decision:

            “Where a statute authorizes only the issuance of a citation for certain minor offenses, pursuant to which a full search would be unconstitutional under Knowles, to hold admissible the fruits of a search, conducted by an officer who effects a full custodial arrest under circumstances clearly not permitted by statute, would yield undesirable results and would be fraught with the potential for abuse.  Any officer so desiring could intentionally effect a full custodial arrest contrary to clearly established state law in order to avoid running afoul of Knowles, thereby placing the search beyond the reach of the Fourth Amendment exclusionary rule.”

            Of course, people who believe that the exclusionary rule is ill-conceived might not be bothered by a state of law that would permit, even encourage, the police to play this game.  However, that is a reason to reconsider the exclusionary rule, not a reason to create a confusing and logically inconsistent body of law.

            As alluded to earlier, the Court expressed concern in Atwater that making a distinction under the 4th Amendment between “fine-only” offenses and all other offenses would place too heavy a burden on the police to learn the intricacies of state criminal law.  Some people undoubtedly viewed this concern as questionable.  Certainly the drafters of §19.2-74 believed that police officers in Virginia could make such distinctions, because they are critical to the application of the provisions in that statute.  In any event, it is clear after Moore that if the police fail to educate themselves about what are misdemeanors and what are felonies in Virginia, there will be instances where they will make unlawful arrests under §19.2-74, with the result that they will lose the use at trial of the fruits of searches made incident to those arrests.

[1] 2006 Va. LEXIS 99.

[2] 525 U.S. 113 (1998).

[3] 532 U.S. 318 (2001).

[4] While the holding of the Court of Appeals on the issue of whether any of the exceptions to the summons requirement existed is significant, the Virginia Supreme Court did not examine the issue because the government did not contest that ruling.

[5] Troncoso v. Com., 407 S.E.2d 349 (Va.Ct.App. 1991); Hall v. Com., 121 S.E.2d 154 (Va. 1924); Thompson v. Com., 390 S.E.2d 198 (Va.Ct.App. 1990).

[6] 41 P.3d 59 (Cal. 2002).

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.