Public Defense

Warrantless Arrest Supported By Probable Cause, But Which Violates State Law, Does Not Violate Fourth Amendment

By Brad Bogan

A police officer has probable cause to believe that a person has committed a crime, but state law does not permit the officer to arrest the person for that particular offense. The officer arrests the person anyway, and performs a search incident to arrest. Drugs are found, prosecution ensues. Did the arrest, and search incident to arrest, violate the Fourth Amendment proscription against unreasonable searches and seizures?

Not according to the Supreme Court's decision today in Virginia v. Moore, which held that "[w]hen officers have probable cause to believe that a person has commited a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety[,]" even if state law does not permit officers to arrest a person for that particular offense.

The Court first noted the lack of any "historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted." Absent such history, the Court turns to the general reasonableness balancing test, which turns out exactly how it usually does: "when an officer has probable cause to believe a person has committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable." Although a State is certainly free to provide more protection that the minimum required by the Fourth Amendment, "its choice of a more [protective] option does not render the less [protective] ones unreasonable, and hence unconstitutional."

The decision was 9-0, with Justice Ginsburg concurring in the judgment only. Her principal point of disagreement is with the majority's characterization the Supreme Court's 1948 decision in United States v. Di Re. Law professor Orin Kerr has discussed that question extensively over at the Volokh Conspiracy, so head over there for the low-down on Di Re and what it has to do with Moore.

Full post as published by Fifth Circuit Blog on April 23, 2008 (boomark / email).