In Virginia v. Moore the Supreme Court held that evidence is admissible under the Fourth Amendment even though obtained in a search incident to an unlawful arrest that was on probable cause.
In other words, if the state makes something a non-arrestable crime (in Virginia, driving with a suspended license) and the police break state law by arresting a person for it, the violation of state law does not so offend the Fourth Amendment that the evidence should be excluded.
In still other words, a “search incident to arrest” does not mean a “search incident to lawful arrest” but rather “a search incident to arrest with probable cause.”
A state constitution may give more protection than the U.S. Constitution, but Virginia’s Constitution does not appear to contain a prohibition against unreasonable searches and seizures. (That’s not a Bill of Rights. That’s a Bill of Rights!)
Nor does Virginia have a statutory prohibition against the use of illegally-obtained evidence against an accused. Wise County, Texas criminal defense lawyer Barry Green correctly analyzes the situation: in Texas state criminal cases, article 38.23 of the Code of Criminal Procedure gives more protection than the U.S. Constitution, and would bar the use of evidence obtained pursuant to an unlawful arrest (for speeding, for example) even though the U.S. Supreme Court continues chipping away at the exclusionary rule for its own sake.
For it’s own sake? But no! The court is just following the founders’ original intent, right? Well, my crystal ball is in the shop for polishing, but I’ve researched the issue carefully, and I’m pretty sure that in 1791 driving with a suspended license was not a crime in Virginia. (Question for the scholars: were malum prohibidum crimes a significant part of the criminal law in late eighteenth-century America?) To say that the founders intended for police (which didn’t then exist) to be able to search people when arresting them illegally for driving cars (which didn’t then exist) with suspended licenses (which didn’t then exist) seems rather a stretch to me.
P.S. Typically, the anti-judicial-review neocons are already holding this roundheeled Supreme Court decision up as an example of judicial activism.
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This entry was posted by Mark Bennett
on Thursday, April 24th, 2008 at 7:58 pm and is filed under 38.23, Supreme Court, Uncategorized, search and seizure.
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Well, anytime Scalia writes the majority opinion, civil libertarians need to start passing around the KY jelly.
He’s been pretty good on the Sixth Amendment in recent years, but he’s got problems with the Fourth.
Thank God we still have the Third Amendment!
It would have been surprising had Scotus decided the other way. The rationale is: ” But their state’s Supreme Court has found that the Fourth Amendment requires suppression of evidence gathered during such a(n).. arrest…”
The court only said that the 4th does not require supression if there was probable cause, and there apparently was. If Va. wants a 38.23, that’s a STATE legislative function.
Jigmeister,
Sure, a statutory exclusionary rule would be a state legislative function.
So is deciding what is and what is not a crime.
So is deciding whether a crime is arrestable or not.
The Court’s rationale that linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time” is farcical: Fourth Amendment protections are inseparably linked to state law — what is illegal in one state (so that an arrest might justify a search) is often legal in another, so conduct that would justify a search in one state is perfectly okay in another.
Moreover, conduct that would justify a search (in the Court’s view) in one city is sometimes perfectly okay in another.
Furthermore, conduct that would justify a search in one part of a city is sometimes perfectly okay in another.