|
Download
a Printable Version of this article Here  Adobe
PDF required
Written for and Distributed by Public Agency Training Council and PATC Partners and affiliates.
For duplication & redistribution of this article, please contact the Public Agency Training Council by phone (1.800.365.0119), or by email (newsletter@patc.com).
Question Presented:
Does the Fourth Amendment require the suppression of evidence
obtained incident to an arrest that is based upon probable
cause, where the arrest violates a provision of state law?
On September 25th (2007) the United States
Supreme Court agreed to hear a case in which a person and
a vehicle were searched incident to an arrest. The arrest
was for operating on a suspended license. The case, which
will be heard in the Supreme Court as Commonwealth of
Virginia v. Moore, i involved an arrest for a suspended license followed
by searches incident to that arrest.
Two detectives in Portsmouth, Virginia heard
a radio dispatch concerning a subject driving with a suspended
license and responded to the area. The detectives spotted
the person in question (Moore) and pulled him over. The detectives handcuffed
Moore and put him in their police car. They Mirandized Moore and secured a
consent
to search his hotel room. Due to a miscommunication, no one searched Moore
at the scene of his arrest; rather Moore was searched after
being driven to his
hotel room. Upon searching Moore he was found to be in possession of 16 grams
of crack cocaine. Moore challenged the seizure of the evidence arguing that
he should not have been searched incident to his arrest.
His argument was based
on the fact that under Virginia law a person driving on a suspended license
is supposed to be cited and released at the scene unless
they meet one of the specified
exceptions which allow a custodial arrest by the statute. ii The
exceptions were not raised by the prosecutor in the lower court. Essentially
Moore argues that
even thought the officers had probable cause to arrest him; they should have
issued him a citation instead of making a custodial arrest. He further argued
that if the officers could not make a custodial arrest then they would not
be allowed to search him incident to arrest.
Moore’s arguments for suppression have their foundation in a prior United
States Supreme Court case, Knowles v. Iowa. iii In Knowles, the United States Supreme
Court rejected a search incident to citation which was allowed under state statute
if the offense for which the citation was being issued allowed an officer to
make an arrest if they so chose. iv In Knowles the Court re-iterated that a significant
purpose and justification for search incident to arrest is the officer’s
lengthy exposure to the arrestee which may allow the arrestee to reach for a
weapon or destroy evidence. The Court recognized that this danger did not exist
if officer were not going to be exposed to the subject since they were issuing
a citation and releasing him. Moore prevailed in the Virginia Supreme Court on
4th Amendment grounds setting off an appeal to the United States Supreme Court
by the Commonwealth of Virginia.
In the Supreme Court, the state will argue
that this case is different from Knowles since in Knowles,
the officers were releasing Knowles whereas in
this case Moore
was arrested based upon probable cause to believe that he was committing
a misdemeanor. The real question is whether the Virginia statute which
required issuance of
a citation rather than a custodial arrest, impacts the 4th Amendment analysis
of an arrest based upon probable cause. If the state statute makes the
arrest, which was supported by probable cause, illegal under
the 4th Amendment, the
evidence gets suppressed. If instead the Court finds that an arrest is
constitutionally justified whenever the officer has probable
cause to believe a crime has
been
committed irrespective of the nuances of state law, then the evidence should
be allowed.
The case may also provide another opportunity
for the Court to further examine the reach of the exclusionary
rule.
Stay tuned to the PATC
E-Newsletter and watch for the U.S. Supreme
Court’s decision in Virginia v. Moore which will be decided between
now and June. ____________________________________
Citations:
- . Moore v. Commonwealth of Virginia, 272
Va. 717 (Va. Supreme Ct. 2006) cert. granted
Virginia v. Moore, 2007 U.S. LEXIS 9069 (September
25, 2007).
- § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor
case; issuance of summons by special policemen and conservators of the peace
1. Whenever any person is detained by or is in the custody of an arresting
officer for any violation committed in such officer's presence which offense
is a violation of any county, city or town ordinance or of any provision of
this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor
for which he may receive a jail sentence, except as otherwise provided in Title
46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which
a summons may be issued, and when specifically authorized by the judicial officer
issuing the warrant, the 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. However, if any such person shall fail
or refuse to discontinue the unlawful act, the officer may proceed according
to the provisions of § 19.2-82. Anything in this section to the contrary
notwithstanding, if any person is believed by the arresting officer to be likely
to disregard a summons issued under the provisions of this subsection, or if
any person is reasonably believed by the arresting officer to be likely to cause
harm to himself or to any other person, a magistrate or other issuing authority
having jurisdiction shall proceed according to the provisions of § 19.2-82.
2. Whenever any person is detained by or is in the custody of an arresting
officer for a violation of any county, city, or town ordinance or of any provision
of
this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor
for which he cannot receive a jail sentence, except as otherwise provided in
Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388,
the 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 of such person of his
written promise to appear at such time and place, the officer shall forthwith
release him from custody. However, if any such person shall fail or refuse to
discontinue the unlawful act, the officer may proceed according to the provisions
of § 19.2-82.
- Knowles v. Iowa, 525 U.S. 113 (1998).
- Iowa Code 805.1 (The issuance of a citation
in lieu of arrest or in lieu of continued custody
does not affect the officer's authority to conduct
an otherwise
lawful
search. The issuance of a citation in lieu of arrest shall be deemed an arrest
for the purpose of the speedy indictment requirements of rule of criminal
procedure 2.33(2)(a), Iowa court rules.)
|
Article:
Updated U.S. Supreme Court decision for this case here
About the Author:
Jack Ryan is the Co-Director of the Legal & Liability
Risk Management Institute (www.llrmi.com)
and an attorney in Rhode Island, a graduate Juris Doctorate, Cum
Laude Suffolk University Law School. Jack has 20 years police experience
as a police officer with the Providence Police Department, Providence,
RI.
Jack’s law degree and experience as a police
officer gives him the unique perspective of the legal and liability
issues.
Jack is a former adjunct faculty member at Salve Regina
University and lectures frequently throughout the United States.
Jack Ryan
Legal & Liability Risk Management Institute
5101 Decatur Blvd Suite L
Indianapolis, Indiana 46241
Phone: (800)365-0119
Fax: (317) 821-5096
Cell: (401) 692-1555 |
