Virginia v. Moore – Oral Argument – January 14, 2008

Media for Virginia v. Moore

Audio Transcription for Opinion Announcement – April 23, 2008 in Virginia v. Moore

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John G. Roberts, Jr.:

We’ll hear argument first today in 06-1082, Virginia v. Moore.

Mr. McCullough.

Stephen B. McCullough:

Mr. Chief Justice, and may it please the Court: This Court has again and again held that an arrest is constitutionally reasonable if the officers have probable cause to believe a suspect has committed a crime.

The Court has found that this standard represents the best compromise between the needs of the citizens and the duty of the government to combat crime.

While the States are free to build additional procedures on this constitutional bedrock, when they do so these additional procedures are matters of State law.

They do not change the constitutional standard.

The Court below erred in substituting this clear, established, uniform, time-tested standard for a standard that has none of those virtues.

First, it is undeniable that if State law can raise the constitutional bar, that it will lead to widespread differences on the exact same facts, on the exact same crime, not only across State lines, but also within a particular jurisdiction.

John G. Roberts, Jr.:

Mr. McCullough–

Ruth Bader Ginsburg:

If this officer had complied with the State law, that is he had issued a summons, then you agree that the exclusionary rule would apply if he went ahead and searched.

Stephen B. McCullough:

That’s correct.

If he had issued a summons, Knowles would apply and the evidence would be excluded.

Ruth Bader Ginsburg:

So would you explain the logic to saying that when the police violate State law, then the evidence can come in; but when they comply with State law, it can’t.

Stephen B. McCullough:

Your Honor, the rationale of Knowles was that the officer did not engage in any extended contact with the suspect and that there was no need to gather evidence.

But where from a constitutional sense there is a full-fledged arrest, then the particular rationale of Knowles doesn’t apply; and I don’t think the… we’re asking the Court to embrace violations of State law; we’re asking the Court to recognize that when a State goes above and beyond what the Constitution requires, that the remedies for those violations should be left to the States.

And Virginia has provided a number of those remedies; but here the officer did make a full custodial arrest.

Stephen G. Breyer:

Did you… excuse me, sorry, General.

John Paul Stevens:

Well, you say he made a custodial arrest.

Did he search the defendant at the time of the arrest?

Stephen B. McCullough:

No.

There was a miscommunication between the officers–

John Paul Stevens:

And did he search him at the place of the arrest?

Stephen B. McCullough:

–No.

John Paul Stevens:

Well, how can this be incident to an arrest?

Stephen B. McCullough:

Your Honor, the fact of the arrest was uncontested, and the law doesn’t require–

John Paul Stevens:

But the search is unrelated to the arrest, as I understand the facts.

Stephen B. McCullough:

–No, Your Honor.

John Paul Stevens:

It took place later in a different place.

Stephen B. McCullough:

Justice Stevens, the search was related to the arrest.

What happened at the scene was the officer made a pat-down and assumed the other officer had conducted the search.

Stephen B. McCullough:

When they got to the hotel, they realized there had been a mix-up.

But he had not yet been taken to the station and booked and so the rationale supporting the search incident to the arrest is present.

John Paul Stevens:

Well, why is it present if he’s not… he searched when he wasn’t arrested?

I don’t understand.

Could they wait a week and do it?

Stephen B. McCullough:

The arrest did not cease at that point, Your Honor.

In United States v. Edwards, the Court recognized that at times the search will not proceed immediately upon arrest.

John Paul Stevens:

It’s an ongoing arrest, is it?

Stephen B. McCullough:

Well, it’s an arrest–

John Paul Stevens:

Incident to an ongoing arrest?

That’s kind of a new concept.

Stephen B. McCullough:

–It’s an arrest until he is released or denied bail.

But I would also add that the timing issue was simply not raised below.

And so there’s no reason at this juncture to raise an issue that the litigants chose not to–

Antonin Scalia:

Mr. McCullough, the proposition that you’re arguing, does it apply at the Federal level as well?

Suppose… suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right?

So I go in and search his house; and sure enough, there is marijuana.

And I bring it to the police’s attention, and they eventually arrest him.

Is that lawful search?

Stephen B. McCullough:

–If there is State action–

Antonin Scalia:

I’m a State actor, I guess.

You know…–

[Laughter]

Stephen B. McCullough:

–If you have State actors–

Antonin Scalia:

You know, a Supreme Court Justice should not be…–

[Laughter]

–should not be living next door to somebody growing marijuana.

It doesn’t seem right.

Stephen B. McCullough:

–That’s not a smart neighbor.

[Laughter]

Stephen B. McCullough:

If you have State action and you enter into someone’s home, then the Constitution affords a heightened level of protection.

But–

Antonin Scalia:

Don’t dance around.

Is it… is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?

Stephen B. McCullough:

–I don’t think the fact of… no.

The fact that–

Antonin Scalia:

So any Federal employee can go crashing around conducting searches and seizures?

Stephen B. McCullough:

–So long–

Antonin Scalia:

So long as he has probable cause?

Stephen B. McCullough:

–That’s correct.

Antonin Scalia:

That’s fantastic.

[Laughter]

Do you really think that?

Stephen B. McCullough:

I think if there is State action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy.

Antonin Scalia:

Or that you are an administrative law judge at the, you know, Bureau of Customs?

It doesn’t matter?

Stephen B. McCullough:

I think that’s right.

That if you have… if the State–

Antonin Scalia:

What about a janitor?

You’re a janitor, a federally employed janitor.

Stephen B. McCullough:

–Your Honor–

Antonin Scalia:

His neighbor is growing marijuana, and he’s just as offended as a Supreme Court Justice would be.

Can he conduct a search?

Stephen B. McCullough:

–I think if he’s doing it on behalf of the State, the answer is yes.

Antonin Scalia:

Wow.

Stephen B. McCullough:

But in terms of the Federal-State distinction, Your Honor, I think what we’re advocating for is the uniform standard that this Court has embraced before, that there should not be a difference between a Federal officer on a State facility who is authorized under the Assimilated Crimes Act to arrest for Virginia laws and a Virginia officer who is a hundred feet away with making an unconstitutional arrest under the holding below when–

Ruth Bader Ginsburg:

Would you agree that there was no probable cause to arrest, given the State statute?

Stephen B. McCullough:

–Your Honor–

Ruth Bader Ginsburg:

You’re talking about probable cause to believe that he committed an offense.

Stephen B. McCullough:

–That’s right.

Ruth Bader Ginsburg:

But was there probable cause to arrest?

Stephen B. McCullough:

Well, the State court found there was no… none of the exceptions in the statute applied.

But when the Court has used the term “probable cause to arrest”, it has never required a two-step analysis of, first, probable cause to believe a crime had been committed, and then probable cause to arrest.

It’s always been, in this Court’s cases, a single inquiry: Has there been probable cause?

Ruth Bader Ginsburg:

Could he… could this officer have gotten a warrant to arrest Moore?

Could he… is it… oh, there’s an offense going on under Virginia law, I’m going to check with… call in to see if I can get a warrant.

Could he have gotten a warrant?

Stephen B. McCullough:

Well, under the facts of this case he could have, but it would have caused a prolonged detention of the suspect.

Ruth Bader Ginsburg:

How could he… how could he have gotten a warrant to arrest when it’s a nonarrestable offense?

Stephen B. McCullough:

Well–

Ruth Bader Ginsburg:

He couldn’t… would a judge have told this police officer… they have a call-in procedure, call the judge.

You want to… you need to issue a warrant to arrest him for driving with a suspended license, but that’s not an arrestable offense.

Stephen B. McCullough:

–Your Honor, it is an arrestable offense under certain circumstances.

And so the officer is left with each arrest to make a discretionary call.

Ruth Bader Ginsburg:

Did these officers think this… those circumstances exist?

Stephen B. McCullough:

The officers did not… their only testimony was it was their prerogative.

And unfortunately they did not then unpack that explanation to say why they thought one of the exceptions applied.

What the State argued below and the State court rejected was that he was alone in a car with this large angry dog.

There was no passenger that he could switch places with, and so if they write him a summons, logically, what is he going to do?

He doesn’t live anywhere nearby.

As soon as they leave the scene, he’s going to get right back in his car and drive away.

Now the State court rejected that, but that illustrates the fact that under this statute the officers have to make discretionary calls as to when these exceptions apply.

Is the defendant–

Antonin Scalia:

Maybe we could say that in this, in these unique circumstances, where the officers could not let the fellow drive off without a license, it was not unreasonable to arrest him, but in some other situation where they had no arrest authority it would be.

Stephen B. McCullough:

–Your–

Antonin Scalia:

I mean, you know, let’s assume that the stop was not based on some, some deficiency in his license or some deficiency in the car… I don’t know what else it could be… like, he had been going too fast, okay?

And it’s just a misdemeanor.

He was five miles over the speed limit.

Now, in that situation you couldn’t say, as you’ve said here, gee, if they just let him go, he’d still be driving without a license; they had to arrest him; they had no choice.

In that situation, he wouldn’t necessarily be going above the speed limit.

Antonin Scalia:

Would that be… why couldn’t you say it was reasonable here, but it wouldn’t be reasonable there?

Stephen B. McCullough:

–Well, what we’re asking the Court to do is to let the States regulate this arrest authority.

Antonin Scalia:

If that’s the argument you’re making, then don’t bring forward the argument that they couldn’t let him go because he’d be in violation of the law.

If you want us to make that narrow a holding, I guess we can.

Is that what you want us to do?

Stephen B. McCullough:

All we’re asking the Court to do is to affirm the probable cause standard that has… without any further balancing, that the balancing has occurred when–

Antonin Scalia:

No, you’re asking us to balance.

You’re asking us to say, after all, in this case if they hadn’t arrested he would have been violating the law as soon as they let him go.

Stephen B. McCullough:

–No, I’m simply explain… what I was trying to so was to explain that as a matter of state law these officers have to make these discretionary calls.

If that then becomes the constitutional standard, that instead of a simple probable cause finding you have to get into every discretionary call by the officer, that it… it turns actually–

Antonin Scalia:

You say this was not unlawful under Virginia law, then, because of the factor you brought forth?

Stephen B. McCullough:

–No, Your Honor.

That was adversely litigated against us in the State court.

Antonin Scalia:

Well, I don’t know what you’re talking about a discretionary call.

It wasn’t a discretionary call.

He couldn’t arrest the person.

Stephen B. McCullough:

Well… but the problem is, if the standard then becomes a two-step probable cause, where we have to figure out as a matter of constitutional law whether the officer guessed right in terms of one of these exceptions, then every discretionary judgment in the field becomes the occasion for constitutional–

John G. Roberts, Jr.:

–But suppose it works the other way.

If Virginia has a law saying you can arrest anybody you want on our highways, but, you know, here’s what the offenses are, the officers did not have probable cause to think a crime had been committed, but it was they had probable cause to arrest, I suppose under the Respondent’s theory that would be all right.

Stephen B. McCullough:

–It… I mean, it certainly would flow from that.

So I think, given the multitude–

John Paul Stevens:

Let me ask this question: You would argue it doesn’t matter whether it violated State or Federal law; it’s a question of Federal law on probable cause.

But does the character of the crime for which the person is being arrested have any relevance to the question whether the search is reasonable?

For example, supposing he is arrested for a tax offense; could you go ahead and search him incident to that arrest?

Stephen B. McCullough:

–The search incident to arrest is a bright-line rule, Your Honor, that this Court has promulgated in Robinson.

John Paul Stevens:

The answer is yes, they could search?

Stephen B. McCullough:

I’m sorry.

Yes, the answer is yes, that if a crime has been committed the bright-line rule permits the officer to search the suspect for officer safety as well as–

John Paul Stevens:

Even though the rationale for the search incident to arrest doesn’t apply?

Stephen B. McCullough:

–What the… yes, because what the Court said in Robinson was: We’re not interested in delving into case-by-case litigation as to how dangerous this person was and how… and whether there was a likelihood of evidence being found–

Samuel A. Alito, Jr.:

Why would the rationale not apply in that situation?

Are you accepting the proposition that anybody who’s arrested for a tax offense is not a danger to the arresting officer?

Haven’t there been some pretty dangerous people arrested over the years for tax offenses?

[Laughter]

Stephen B. McCullough:

–I agree with that.

I’m arguing that it’s a bright-line rule and that if someone is arrested for a crime, tax or otherwise, it’s not the nature of the crime–

David H. Souter:

No, but you’re also arguing, as I understand it, that the… that the search, even in the case of the tax arrest, does fall within the rationale of search incident to an arrest because one of those two rationales is officer safety.

Isn’t that your point?

Stephen B. McCullough:

–Yes.

David H. Souter:

Okay.

So you reject the premise of the question then?

The premise of the question was that the search incident to the arrest in the tax case is outside the rationale of searches incident to an arrest; and your position is it’s not outside it.

Stephen B. McCullough:

That’s correct.

David H. Souter:

Okay.

Stephen B. McCullough:

This Court has crafted a bright-line rule… it has not distinguished between types of offenses; it doesn’t have to be a violent offense; it could be a white-collar offense… that across the board there is virtue to having this bright-line rule that permits the officer to search incident to a lawful arrest.

And in Robinson the Court noted that a lawful arrest is a… that it met a constitutionally lawful arrest, one made with probable cause.

This arrest was made with probable cause.

The search incident to the arrest was lawful.

I would ask the Court if I could keep my remaining time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Dreeben?

Michael R. Dreeben:

Thank you, Mr. Chief Justice, and may it please the Court: The States and the Federal Government may for a variety of reasons enact restrictions on officer authority that exceed the requirements of the Fourth Amendment as this Court has articulated them.

When such State law or Federal law extra-constitutional restrictions are violated, it is a matter for the government that enacted them to determine what remedy appropriately flows from that violation.

Antonin Scalia:

Does the person making the arrest at least have to have some arrest authority?

Michael R. Dreeben:

This Court has never–

Antonin Scalia:

Or will a janitor do the job?

A janitor at the Justice Department becomes imbued with the mission of the Department and he goes around arresting people or searching people.

Michael R. Dreeben:

–Well, certainly, Justice Scalia, such an individual wouldn’t have positive law authority to engage in an arrest.

Antonin Scalia:

Just as this person here didn’t have positive law authority to engage in an arrest.

Michael R. Dreeben:

The question would then be whether that means that it’s automatically a constitutional violation.

Michael R. Dreeben:

I think in some situations even a governmental official can act in a private capacity by acting outside the boundaries of that individual’s responsibility.

Antonin Scalia:

Yes, but he was purporting to act in an official capacity.

And he did, indeed, give the marijuana to the officials at the Justice Department.

Michael R. Dreeben:

And if you assume that the Court would have two options.

It could either federalize some sort of an amorphous requirement that there must be law enforcement authority in an official in order for that official to engage in Fourth Amendment activity, or it could hold that, what I think is the more reasonable approach, which is that the bedrock requirements of the Fourth Amendment protect against arbitrariness, and the crucial one here is the existence of probable cause based on the facts to believe that the individual has violated a law.

If that criteria is met, it is not constitutionally unreasonable, absent where an extraordinary intrusion for the individual’s liberty or privacy interests to be compromised.

It may be the most flagrant violation of departmental regulations in the world, and in that case the department that has those regulations can take action, just as here Virginia says if you violate the arrestable offense rule under Virginia law, the consequence is not to exclude evidence.

Virginia will not exclude evidence under its own State law for a violation of this provision.

But it does say under State law that a person can resist an unlawful arrest, The officer can be sued for engaging in an unlawful arrest under State law, and that the officer can be fired or disciplined.

And those are the sanctions that the State has chosen to do.

Now, what the Virginia Supreme Court has done is come along and say, even though you do not intend this rule to trigger the exclusionary rule under Virginia law, you have no choice.

As a matter of Federal constitutional law, if Virginia decides to exceed the constitutional minimum as this Court announced in Atwater and place additional restrictions on the arrest authority, it must pay a constitutional price of having the evidence excluded if that rule is violated.

At the outset, it’s clear that imposing such a Fourth Amendment rule would do nothing other than discourage the States from providing additional restrictions as a matter of their own State’s law that may serve to protect citizen privacy interests above the floor that this Court has identified as required by the Fourth Amendment.

Ruth Bader Ginsburg:

If you’re right, Mr. Dreeben, then the Court gave a false signal when it GVR’d in Lovelace, in the Lovelace case, the person who was drinking in public, it GVR’d in light of Knowles.

Michael R. Dreeben:

I don’t know that it gave a false signal, Justice Ginsburg, but a GVR doesn’t indicate this Court’s disposition of the merits once all of the arguments are presented to it.

And, admittedly, I think neither side is able to point to a case that squarely addressed and conclusively resolved the issue that’s before this Court.

What the Court has done, I think, under related issues under Fourth Amendment law is announce pretty clearly that the fact that a State has either renounced an interest in taking a particular law enforcement action that it could otherwise constitutionally take or positively prohibited a law enforcement action does not mean that the action is unconstitutional.

As long ago as the Cooper v. California case, the Court dealt with the situation where an officer was not authorized to undertake an inventory search, and the California courts treat it as a violation of their own law.

This Court said it was still a reasonable search under the Fourth Amendment; and unless Respondent… excuse me, unless… well, Respondent concludes that there should be a different Fourth Amendment rule for searches than procedures, Cooper stands for the proposition that a violation of State law does not ipso facto equate to a violation of the Federal Constitution.

Anthony M. Kennedy:

If we rule for Respondent in this case, would we have to reexamine the holding in California v. Greenwood?

Michael R. Dreeben:

Yes, Justice Kennedy.

California v. Greenwood is the next case in the line where the Court recognized that California had made it illegal to conduct garbage searches.

And you could make the same argument that Respondent is making here today: That California had renounced any interest in conducting garbage searches, therefore there’s nothing on the State side of the line to balance against the individual’s invasion of privacy, and therefore the State should lose.

And this Court held precisely the opposite in California v. Greenwood, finding that it was constitutionally reasonable to engage in the garbage search because there was no federally recognized expectation of privacy, even though the State had decided to go further and grant an additional layer of protection to its citizens.

Ruth Bader Ginsburg:

There could not have been a warrant… a grant… a judge could not have given a warrant for arrest on these charges.

Michael R. Dreeben:

I’m venturing a little bit outside of my expertise under State law, but I think that that’s correct.

Because State law provided that this was not an arrestable offense unless one of the exceptions to the offense existed.

And I should note that one of the offenses here… excuse me… one of the exceptions here is that a court of general jurisdiction could have entered an exemption from the arrestable offense rule and then officers within that jurisdiction would have been constitutionally and under State law–

Ruth Bader Ginsburg:

How often and under what circumstances is that Virginia… Virginia law rule?

I mean, when does a general district court give permission for a custodial arrest in a certain class of cases?

Michael R. Dreeben:

–I know that it has done it.

I don’t know that there are any restrictions on when it would do it.

The point, I think, of giving the general courts the authority to do this is that these kinds of laws are not necessarily enacted, as Respondent posits, to be supplementary protection for privacy.

They do not necessarily represent a judgment that law enforcement officers should never bring people in for minor traffic misdemeanors.

They may represent a judgment that law enforcement officers should be out on the beat policing more important crimes and it’s a waste of social resources and scarce police resources to have them bringing people downtown for these kinds of offenses.

In a particular jurisdiction, law enforcement may make a case that actually it’s important enough to deter various traffic violations and to ensure that the individuals show up, that officers should have plenary authority to make arrests.

Anthony M. Kennedy:

I should know this, but do we defer to State law in determining the lawfulness of the time before arraignment in the context of confessions, the McNabb-Mallory rule?

Michael R. Dreeben:

The McNabb-Mallory rule–

Anthony M. Kennedy:

Which is Federal.

Michael R. Dreeben:

–is uniquely Federal.

The closest analog… and this may be what Your Honor has in mind… is that in the County of Riverside case the Court set a 48-hour outside limit for when you have to bring an arrested individual before a magistrate for a probable cause hearing.

Under Respondent’s position–

Anthony M. Kennedy:

Well, was there any indication in that case that if the State had a shorter period, they would–

Michael R. Dreeben:

–No, and that’s precisely, I think, the point.

All of the rules that this Court has announced under the Fourth Amendment, the search incident to arrest rule, which is triggered as a bright-line rule without regard to whether the specifics of the case support it, under Respondent’s theory Virginia could overrule that by saying officers shall not conduct a search incident to arrest without a specific exigency in that case.

States could overrule within their own jurisdictions the Federal rule that this Court announced in Riverside.

It could say that individuals have to be brought before a magistrate within 12 hours or they have to be released.

And under Respondent’s theory that you absorb State law into the reasonableness inquiry, this Court’s Federal court decision would be overruled.

And most directly here, Atwater would be overruled with respect to non-arrestable offenses if Respondent’s position is correct that when the State has said that we don’t want to undertake an arrest for a minor offense, therefore, there’s no longer any State interest in undertaking the arrest.

The reality is that this Court has balanced as a matter of Fourth Amendment law what is constitutionally necessary as a uniform Federal matter to protect people against arbitrary law enforcement action, and it’s drawn the line at probable cause.

And as this Court said in Whren, absent rare circumstances when probable cause exists, a search or seizure is reasonable.

And the kind of rare circumstances that the Court gave the example of in Whren were heightened intrusions on individual privacy or liberties such as surgery to remove evidence or an unannounced entry into a home.

We don’t have anything like that here and the standard Federal rule should govern.

John G. Roberts, Jr.:

Thank you, Mr. Dreeben.

Mr. Goldstein.

Thomas C. Goldstein:

Mr. Chief Justice, and may it please the Court: The notion that the proud men who framed the Constitution would believe it reasonable to go out and arrest someone for a non-arrestable offense and not only do that, but having committed that trespass at common law, to further search them, is I think an extreme proposition and one that they would not have accepted.

Antonin Scalia:

But you think they would accept arresting somebody for not wearing a seat belt?

Thomas C. Goldstein:

Your Honor, I do–

Antonin Scalia:

It seems to me we’ve crossed that bridge with Atwater.

Thomas C. Goldstein:

–No, Your Honor, I disagree, for the reason that… and there are obviously… I’m not here to tell the Court what its own precedents mean.

Thomas C. Goldstein:

But Atwater makes quite clear that at common law this was something that was subject to legislate ive override, and that’s what was reasonable at common law when the Constitution was framed.

And that is, legislatures sometimes said that you could arrest and sometimes said that you couldn’t.

But two things were undisputable, I think, and that is when you did arrest illegally that was unreasonable–

Stephen G. Breyer:

The particular illegal arrest here, to bring this down to earth a little bit, is I take it they arrested him because he had a suspended… he was driving without a good license?

Thomas C. Goldstein:

–Yes.

Stephen G. Breyer:

Okay.

So that Virginia law says if you stop somebody, arrest him… if you stop somebody, you know he doesn’t have a license to drive, you can arrest him if you think he’s going to continue driving?

Can’t you?

Thomas C. Goldstein:

Yes.

Stephen G. Breyer:

Okay.

So the policemen here, according to you and I guess the Virginia court, made a misjudgment.

He thought this guy might still drive somewhere or he might have thought it or a policeman in similar circumstances might have thought it.

So Virginia says if, in fact, policemen, you stop somebody for suspended… for driving without a license, and you make a mistake, you arrest him, we don’t think that’s a big deal, because who knows if he’s going to continue to drive.

We don’t even suspend.

We don’t even suppress the evidence.

That’s Virginia.

So if Virginia isn’t going to suppress the evidence because they think it’s not a big deal to make, for the policeman to make a mistake as to whether a person who’s driving without a license will keep driving once the policeman goes away, why do you think Thomas Jefferson and everybody else thought that that was such a big deal that the evidence had to be suppressed?

Thomas C. Goldstein:

For a few reasons.

First, Virginia does take this quite seriously.

The officer can be fired for violating the statute.

That’s no small thing.

The second is I wouldn’t assume that Virginia believes and the Virginia legislature believed that the evidence would not be suppressed, because for reasons that I’ll explain in a minute the Virginia legislature was triggering a long line of its court cases that say if you arrest someone for a non-arrestable offense, the Fourth Amendment is violated, and the application of the exclusionary rule has never been questioned in that context.

John G. Roberts, Jr.:

Well, I thought it’s questioned in your footnote 13 in your brief.

You seem to suggest that the exclusionary rule is not at issue in this case.

Thomas C. Goldstein:

That’s right.

I don’t question its application, but neither does Virginia, Your Honor.

John G. Roberts, Jr.:

So… so we should write an opinion saying we’re not saying that it was correct to… we’re not saying that it was correct to exclude the evidence in this case?

Thomas C. Goldstein:

That’s… I think that that’s right.

That also happened in California v. Greenwood, you may recall, Mr. Chief Justice, where there was some discussion at oral argument about would we believe the exclusionary rule should be applied here.

That question had not been preserved.

Thomas C. Goldstein:

That case is on remand in the California Supreme Court.

Stephen G. Breyer:

What is the difference between this and Whren?

That is, in Whren the arrest violated a D.C. regulation that says a plainclothes officer cannot approach a car except in immediate cases of immediate danger.

And in Whren we said that isn’t such a big deal and we don’t think the Fourth Amendment turns on that kind of triviality.

All right.

If it doesn’t turn on that kind of arrest procedure triviality, is how we characterized it there, how is this any any different?

Thomas C. Goldstein:

Whren is different in several different ways.

The first is that that was a challenge to the stop, not the search incident to arrest.

The claim was that the officers under a local D.C. Government regulation did not have the power to make a traffic stop because there was a local regulation that said if you’re not in uniform and if you’re not in a police car, a marked car, you shouldn’t make those traffic stops.

So, it’s different on a couple of different actions.

The nature of the constitutional challenge, the nature of the law that’s being evoked, the local regulation rather than legislation, I think, are the principal ones.

Here we’re dealing with something quite fundamental, and I haven’t gotten to this Court’s precedents applying the common law rule that I described at the beginning, so if I could do and then compare Whren.

Post… define the common law, every since Weeks, which is the first case of this Court to recognize the search incident arrest exception, all the way through Di Re, Miller, Johnson, Ker, DeFillippo, those are five cases that confront the question in this case, I believe that genuinely confront it; is not dictum, it is holding.

Those cases confront the question: Can you have a constitutional search incident to an illegal arrest?

Illegal there not being unconstitutional, but a violation of State law.

Samuel A. Alito, Jr.:

Well, why do you draw a distinction between something that’s prohibited by a statute, something that’s prohibited by a local ordnance or let’s say it’s a directive of the police department?

And if it’s… if the arrest is contrary to any of those things, it’s unlawful under State law, is it not?

Thomas C. Goldstein:

The court hasn’t ever confronted that question.

The places… the line of cases that I described were one of two things, Positive State legislation enacted by the legislature or common law.

It has never dealt with the locality question.

Whren suggests that maybe a local police regulation is too variable.

We would win under either rule.

The… I think the core reason you would draw the line at legislation is because this… the Fourth Amendment is not just an instrumental thing designed to do good.

It is, as designed, to apply common law concepts of reasonableness, which was the foundation–

Samuel A. Alito, Jr.:

I thought it was your argument that if the arrest is unlawful under State law it’s an unreasonable search, an unreasonable arrest under the Fourth Amendment?

Thomas C. Goldstein:

–That’s right.

And your question, Justice Alito, is designed to test what I mean by unlawful in terms of what sources… the State constitution, legislation, local police practices.

Antonin Scalia:

No.

It’s designed to test whether you really mean unlawful under State law.

Either you don’t mean it, because something that violates a municipal ordnance is unlawful under State law, and yet you would not apply your test.

Antonin Scalia:

So you could express your test differently, unlawful under State statutory law.

Thomas C. Goldstein:

If I have conveyed that impression, I am sorry.

I did not intend to.

Our rule is that if it’s unlawful.

All I’m saying is the Court could conclude that local police regulations, for example, are too variable to… and Whren calls them “trivialities”, so we won’t pick them up.

John G. Roberts, Jr.:

No, it says the laws of the 50 States are pretty variable on this question as well.

Thomas C. Goldstein:

As are the laws of whether it’s a crime at all, as are under Indianapolis v. Edmund and lots of other cases where the court–

John G. Roberts, Jr.:

Do we have to look at both of those varieties?

Let’s say the State has a rule that, yes, you can arrest people in a way that we would say you can’t, but you don’t have to have probable cause.

You just have to… they’re just arrestable.

Thomas C. Goldstein:

–No, as Justice Ginsburg suggests, you have to have probable cases to arrest.

Cases like Berkemer, Seth–

John G. Roberts, Jr.:

–is probable cause to arrest.

The State has a law that says you can arrest in these circumstances whether or not you have probable cause to believe that a crime has been committed.

Thomas C. Goldstein:

–I’m sorry.

By that phrase I mean there is a constitutional component.

Part of the constitutional floor is that you have to have sufficient cause.

That’s a guarantee of the Fourth Amendment.

This Court’s cases make clear you can’t go below–

John G. Roberts, Jr.:

I thought you were telling us it has to be sufficient cause to arrest, not sufficient cause to believe that a crime has been committed.

Thomas C. Goldstein:

–That is necessary but not a sufficient condition, Mr. Chief Justice.

There’s obviously a… the constitutional floor includes the element of the… the degree of proof that’s required by this Court precedents.

John G. Roberts, Jr.:

So it is, as your friends on the other side put it, you are advocating a two-step process.

There has to be probable cause to arrest and there has to be probable cause to believe a crime has been committed?

Thomas C. Goldstein:

I view those as the same thing.

We may be just having–

John G. Roberts, Jr.:

No, they’re different here.

They had probable cause to believe a crime has been committed, but you say they didn’t have probable cause to arrest because State law makes it illegal.

Thomas C. Goldstein:

–In that sense, absolutely.

I just wanted to make sure I understood the terminology.

Thomas C. Goldstein:

That’s correct.

But let me make quite clear that we are discussing in the first half hour and the second half hour I think two slightly different things.

The first half hour focused on the constitutionality of the arrest vel non, which is at issue in Atwater, for example, and at issue… not even in Whren, which is just a traffic stop.

I am focusing on the somewhat different point.

There is a line of cases that deals with the constitutionality of the search incident to arrest and it says because at common law you could not search someone pursuant to an arrest that was a trespass, the search itself is unconstitutional.

So if at the time of the framing a Federal officer, a Federal marshal, at the time of the framing had the power to arrest them for State law offenses, as they still do under the OLC opinions.

If a Federal marshal had gone up to someone who’s committing a completely trivial offense, Atwater recognizes there are offenses at common law that are not arrestable.

That would be a trespass and to search the person incident to that arrest would have violated the Fourth Amendment, we believe.

It would have been unreasonable.

When Mapp applies the Fourth Amendment to the States, it would have been–

John G. Roberts, Jr.:

What if the State makes a trivial offense arrestable, as in Atwater?

You’re suggesting in that situation the common law rule we have doesn’t apply.

It’s a trivial offense, but it’s made arrestable and therefore it doesn’t violate the Fourth Amendment to search incident to that arrest.

Thomas C. Goldstein:

–That’s right.

At common law and under the Fourth Amendment, that’s right.

You look to the positive source of authority, which is State law authority to arrest or a common law authority to arrest.

That would not be unconstitutional.

That… that rule also make sense as a question of the structure of our democracy.

Remember, it puts in the hands of the legislature, which can be held responsible for the decision to make a trivial offense–

John G. Roberts, Jr.:

Well, what if the legislature… this was the hypothetical Mr. Dreeben posed.

What if the legislature says yes, you can arrest for this offense but you cannot search incident to the arrest, because we think that’s too much of an intrusion given the fact that it’s a relatively trivial offense?

In that case, would our doctrine saying under the Fourth Amendment you can search incident to a valid arrest be reversed preempted, preempted by the State law?

Thomas C. Goldstein:

–No.

There are times–

John G. Roberts, Jr.:

So the State can define the circumstances under which you can have an arrest, but the State can’t define and limit the consequences of the arrest?

Thomas C. Goldstein:

–That’s right.

That is… there are traditions that are rooted in the common law, that the search incident to arrest here was pursuant to a trespass at common law that was completely unreasonable.

David H. Souter:

But isn’t… isn’t the difficulty with that argument that we… we have rejected the, in effect, the trespass rationale; and what you’re telling us now, it seems to me, based on in effect trespass concepts, is that so far as the Fourth Amendment is concerned an arrest may constitutionally be made, but the officer following that arrest may not take the step of determining whether the individual arrested has on his person anything that can be used to hurt the officer like a knife or a gun?

And why should be we draw what seems to me… if we scrap, as we have done, the trespass analogy, why should we make what seems to me at least an irrational distinction of saying the Fourth Amendment says it’s okay to arrest but it’s not okay to protect yourself after you have arrested?

Why should we accept such a rule?

Thomas C. Goldstein:

This is I think the hardest question for us, and so if I could have the time to give you a couple of answers.

The first is remember your instrumental point is that the officer has the person, they need to protect themselves.

We know that is not itself… and I’m going to give you a couple of answers… that is not itself to make the search constitutional because everyone agrees that if the arrest was unconstitutional, then the search, notwithstanding the exigencies that exist under Chimel and like cases all the way back, exist.

So it’s not enough that the officer has to protect himself.

The reason–

David H. Souter:

Right.

But we’re starting with a different premise.

Thomas C. Goldstein:

–I–

David H. Souter:

We’re starting with a constitutional premise.

Thomas C. Goldstein:

–Yes.

I understand this.

Justice Souter, I understand.

I was just trying to get to your… what I think is the greatest sort of logical force: The officer need to protect himself.

Now, to get to the harder case, which is yours, and that is accept that the arrest is constitutional.

We of course don’t do that.

We believe that there isn’t a sufficient interest to make it reasonable, but you posit otherwise.

The reason is given by Justice Powell’s concurrence in Robinson, which is the fundamental search and seizure arrest case, and he says when the person is lawfully arrested they have engaged in conduct that they know can subject them to arrest, they have a reduced expectation of privacy.

So while it’s the case that the governmental interest remains the same… protect the officer, find the evidence… the other side of the Fourth Amendment balance is fundamentally different, because when a person has engaged in conduct which they know does not subject them to arrest they do not have a reduced expectation of privacy.

This individual had every reason to believe dating back to the traditions of common law, to positive State law, that they would not be searched incident to arrest.

David H. Souter:

If that… if that logic is sound and that logic depends on Justice Powell’s use of the word unlawfully, then it seems to me the… the only way to arrest an irrational system would to be conclude that, in fact, the arrest is not constitutionally lawful.

Because on… on your logic, you’re still left with the problem that I raised; and a constitutional arrest in which the officer does not violate the Fourth Amendment by apprehending the person, and yet the officer is disabled from protecting himself, if we’re going to have a sensible rule, we’ve either got to say the Fourth Amendment allows him to make the search incident and protect himself, or we’ve got to have a rule that says the Fourth Amendment doesn’t allow him to make the search… make the arrest in the first place.

Otherwise we’ve got a crazy system.

Thomas C. Goldstein:

Can I just correct one thing?

And that is it does not depend on Justice Powell’s use of the word unlawful.

I believe to rule against us, Justice Souter, that you will have to overrule the line of cases from Di Re to DeFillipo.

Those are on point.

Now you may decide–

Anthony M. Kennedy:

Don’t you think we have to, if not overrule, at least back away from the holding in California versus Greenwood?

Thomas C. Goldstein:

–No, Justice Kennedy, and that’s why I focused so much on searches incident to arrest.

There are times when State law is incorporated into the Fourth Amendment, and everybody agrees that regulatory searches are; inventory searches are, there are times when it isn’t.

Thomas C. Goldstein:

And California v Greenwood is not one and there’s a logical reason for it.

And that is that the premise of when you were deciding in a… in a trash search, this Court’s document looked at two things.

The first is, is there a reasonable expectation of privacy, and if there is do we balance the interest?

California v Greenwood says there was no reasonable expectation of privacy because that’s evaluated as a societal matter.

I’m focusing on a very narrow question that doesn’t disturb any other doctrines.

Antonin Scalia:

What about Cooper… Cooper v California?

Thomas C. Goldstein:

I think Cooper v California is a very good case for us, because Cooper and all its progeny say that State law has to authorize and determine the validity of the inventory search.

If you violate the State regulations on when you conduct an inventory search, you violated the Fourth Amendment.

Stephen G. Breyer:

Can we go back for a second?

Because, the reason I asked my question is I was thinking about this very differently, and I just want to have an answer, and I want your best thinking on this.

My thought is that the answer to the question of whether it violates the Fourth Amendment when a State… when a person is arrested in violation of State law, the answer is: it depends.

Sometimes yes, sometimes no.

Obviously, if there is no probable cause or if there wasn’t a crime at all, as just defined, the answer is yes; but then I look at Whren and it says if all that was at stake was a kind of arrest procedure State law, herein… there embodied in a rule, the answer is no.

So I look at this one.

And this one it seems to me there is probable cause; it is a crime; moreover, it is a crime for which the State permits arrest where the officer subjectively thinks he’s likely to keep driving.

So it seems to me that’s maybe much more close to what we had in Whren.

Now I want you to say… I want your comments on what I… it’s hypothetical, my statement, because I want to get your reaction to that point of view.

I’m not saying I hold it.

But I’m putting it forward so that I can get your reaction and argument.

Thomas C. Goldstein:

Well, I think it is a terribly difficult rule to administer when you try to decide, well if this is a law that sometimes allows arrest and sometimes does not.

It is an infinitely more administrable rule on our side, where we say to the police officers, you have the power to arrest or not and that’s what determines–

Anthony M. Kennedy:

I think it is much easier to administer, to have a uniform Federal standard, rather than whether or not an officer can arrest in one county for something and not in another county whether he has to have a badge or not.

Those are the kind of trivialities we talked about in Whren.

Thomas C. Goldstein:

–Well, Justice Kennedy, remember, we have one standard for an officer on the street, and that is, look… do, if you’re allowed to arrest, you can arrest, and that’s what will determine the constitutionality of the search incident to arrest.

The Government posits two different standards that govern the officer’s conduct: a Federal one and State one.

But let me also get to your point, Justice Kennedy, that you are worried that are all kinds of these State laws.

There’s… you know, are you out of your jurisdiction, are you wearing a uniform?

What we think that the common law was concerned with, and this line… this Court’s court line of cases from Di Re to DeFillipo is a more fundamental judgment.

It’s like the judgment whether it’s a crime at all.

The police power of the State is most fundamentally, is this a crime, can we arrest for it, someone for it, so that we will hold them?

Thomas C. Goldstein:

And those are the judgments: is its arrestable or not?

And not these other little things that–

John Paul Stevens:

But under that analysis, it seems to you we rely on the citizen’s expectation of privacy as the justification.

And I think Justice Kennedy makes a rather strong response to that, because it’s unrealistic to assume that a citizen in certain counties in Virginia had such an expectation but did not in other counties, because most citizens don’t know the sophisticated aspects of the Virginia law.

Thomas C. Goldstein:

–This is a very… just as a court note, there’s no other State that has one of these statutes.

Just in terms of your thinking about whether this is a common practice, we haven’t been able to find any others, and even in Virginia, it’s only to a small body of offenses.

But even taking as a given… Justice Stevens, I think doctrinally, as Justice Powell says in Robinson, the notion is that people go out into the world and engage in conduct, and we expect them to know the law.

Sometimes that’s an unreasonable expectation, but it’s the only premise that this Court–

John G. Roberts, Jr.:

Counsel, can I get back to your discussion of Cooper?

In Cooper, you said that if it violates the State law for an inventory search, then you can’t search incident to that.

But that’s because it is then not an inventory search.

Here there’s no doubt that this was an arrest, whether it complied with State law or not.

Thomas C. Goldstein:

–Chief Justice Roberts, I do disagree.

Post-Cooper, in South Dakota v. Opperman, even if the police officers label it an inventory search… the person says, oh, we were just trying to keep track of everything, so nobody doubts they were really inventorying things… the Court has said it’s the… the practice is, the State practice is–

John G. Roberts, Jr.:

No, but just… it gets to… I mean, if you don’t follow the State rules, it doesn’t comply with the rules for an inventory search.

But here you’re saying if don’t… you’re not saying if you don’t follow the State rules, it’s not an arrest.

It’s not a lawful arrest.

But that’s a different question than whether or not it is an arrest.

Our precedents say if it’s an arrest, you can search incident to the arrest.

Thomas C. Goldstein:

–Mr. Chief Justice, I disagree.

This Court has said many times, and indeed squarely held in Johnson, where the evidence was suppressed, that it has to be an arrest that is lawful under State law.

Antonin Scalia:

Mr. Goldstein, can I bring you back to Cooper v. California?

Thomas C. Goldstein:

Yes.

Antonin Scalia:

Which you say is a good case for you.

I don’t see how you can say that.

This was a case of a car impounded.

The State court had said that there was no authority to search the car, simply because it was impounded, and we said the question here is not whether the search was authorized by State law; the question is rather whether the search was a reasonable one under the Fourth Amendment.

Just as a search authorized by State law may be an unreasonable one under that amendment, so may a search not expressly authorized by State law be justified as a constitutional reasonable one.

And you think that helps your case?

Thomas C. Goldstein:

Not… I don’t think that language is relevant for the following reason: What the Court said in Cooper was that the seizure of the car, which is analogous to the arrest here, right?

Thomas C. Goldstein:

They seized my client’s person; they seized the car.

The Court said because the seizure of the car was lawful under State law, then the search incident to was.

And let me just read to you from Coolidge versus–

Antonin Scalia:

Even though the State law did not authorize it.

Thomas C. Goldstein:

–The State law did not speak to it either way, but… it didn’t speak to it either way.

Antonin Scalia:

They were assume ing, in that passage, that the State law did not authorize it, or otherwise the passage makes no sense.

Thomas C. Goldstein:

Justice Scalia, I disagree.

In any event, post-Cooper, South Dakota v. Opperman, as the conversation between the Chief Justice and I was just explaining, is perfectly clear that the inventory search has to be authorized pursuant to State regulation.

If after Cooper this is perfectly settled, there really isn’t–

John G. Roberts, Jr.:

Counsel, if we assume, contrary to your footnote 13, that the exclusionary rule is implicated in this case, could you explain why, under the Federal Constitution, there should be imposed on the State an exclusionary rule for a violation of State law when State law does not impose an exclusionary rule for the violation of its law?

Thomas C. Goldstein:

–Assuming the Court decides that the question was not waived because it wasn’t briefed, the reason is that this Court’s exclusionary rule precedents look to something else, and that is: Did the evidence follow directly from the unconstitutional conduct?

And here it did.

John G. Roberts, Jr.:

Well, I guess the question would be: Why doesn’t our jurisprudence on whether there’s an arrest also look to something else, rather than whether it’s permitted or violated under State law?

In other words, the State doesn’t… the State law does not provide for the exclusionary rule, but we say the Fourth Amendment does.

Under… this is not a valid arrest under State law, but your brothers say under the Fourth Amendment it is because there’s probable cause to believe a crime has been committed.

Thomas C. Goldstein:

Mr. Chief Justice, I think that illustrates the point I am willing to accept, and that is there are times that State law is relevant under this Court’s doctrines; there are times it isn’t.

Welsh v. Wisconsin, for example, is another example where the Court looks squarely to the State law of whether and how serious the offense is.

My point is that there is a very particular doctrine that is in play here that deals with searches incident to arrest.

Samuel A. Alito, Jr.:

What if Virginia has a statute that said it’s unlawful to arrest for a traffic violation, but that it is lawful under Virginia law for an officer to conduct a search incident to any arrest, whether it’s lawful under Virginia law or not?

Would we follow that latter Virginia law?

Thomas C. Goldstein:

I don’t know.

That is the true answer, because no State has such a law.

It would depend, I think, on whether the arrest itself satisfied constitutional–

Samuel A. Alito, Jr.:

What is the difference between that law and in effect what Virginia has in place?

They say the arrest is unlawful, but they don’t provide for the exclusion of evidence that’s obtained as a result of that arrest under Virginia law.

Thomas C. Goldstein:

–The reason is I think the one… that the Court has never looked to the State law remedies in Di Re, Miller, Johnson, Ker, and DeFillippo, and that it looks to what the common law would look to, which is: Is the arrest legal or not?

I also would repeat what I said to Justice Breyer, and that is I would not assume that Virginia believes that the exclusionary rule wouldn’t apply because those precedents trigger the Fourth Amendment.

But, Justice Breyer, I do want to come back to your question about, okay, Whren.

The important differences are: Remember Whren didn’t just say that things about whether people can be arrested are trivialities.

It’s at the core of the Fourth Amendment.

Thomas C. Goldstein:

The Court would never say that arrest is a triviality.

What it’s talking about is what concerned Justice Kennedy, and that is the kind of rule in Whren, which is the guy had to be in a police uniform and driving around in a marked police cruiser, which could vary from jurisdiction to jurisdiction, the Court felt that was more of a triviality.

This is a much more fundamental statement–

Anthony M. Kennedy:

And both arrests are illegal, but you’re saying that there’s a difference.

So your bright-line rule now seems to evaporate.

Thomas C. Goldstein:

–Justice Kennedy, I don’t–

Anthony M. Kennedy:

I mean I’m assuming that your answer to my question about the badge or the wrong county and so forth would not result in suppression.

Correct me if I have misinterpreted your argument.

Thomas C. Goldstein:

–We have proposed two alternative rules.

Fundamentally, that’s right.

And that is–

Anthony M. Kennedy:

What’s right?

Thomas C. Goldstein:

–I’m sorry.

You’re right: On our core condition, the evidence would not be suppressed.

The reason is that we think the most fundamental State judgment here is whether this offense is arrestable.

Alternatively, the Court could apply a rule that just says State officers, if they’re allowed to arrest lawfully, then that will generate a constitutional search incident to arrest.

We would win under either either rule.

I think the core of our case is a much simpler rule that simply says if the State has decided this thing is not arrestable, it obviously doesn’t have an interest in the arrest that would outweigh the individual’s expectation of privacy… remember search incident to arrest is an exigency.

There is no–

Anthony M. Kennedy:

But then if you… do you accept the proposition then, in some of these minor cases, the arrest might be valid, then you’re whole argument about the Framers and the trespass and so forth is wrong.

Thomas C. Goldstein:

–To… that’s correct.

If we are going to follow the common law and the rule that is articulated, I think, in every single search-incident-to-arrest case, that it has to be a lawful arrest, that’s right.

It will take up all of State arrest law.

I’m not trying to hide from that fact.

But the Court has never had a problem with that.

In all of those cases all through time, it has never had any problem with administerability or anything else with a rule that simply says to the police officer: If you’re allowed to arrest him, arrest him; if you’re not, you’re not, and you can’t search him constitutionally.

That is–

John G. Roberts, Jr.:

I think your friend agreed that the cases didn’t establish whether our references to probable cause meant to probable cause to arrest or probable cause to believe that a crime had been committed.

You don’t agree with that?

Do you think that the cases foreclose their position?

Thomas C. Goldstein:

–I do when it comes to the search-incident-to-arrest cases.

I think two things.

This is my understanding of the Court’s precedents.

The Court has said if you have probable cause, you can arrest.

In every case that it has said that, it has been lawful at State law to arrest… to arrest.

So the Court has confronted this question when it comes to the constitutionality of the arrest vel non.

There is a second line of cases that deals specifically with this search-incident-to-arrest doctrine, and in every one of those, it has both said it has to be a lawful arrest.

And then in five separate cases, it has explained what it meant by a “lawful arrest”.

And it can’t be dictum.

The evidence in Johnson versus the United States was suppressed.

It has to have been the holding of the court.

We think that that is a sensible rule for two reasons: It is what Framers meant.

It cannot be the case that a Federal marshal, at the time of the framing, could go and just arrest somebody for a completely trivial offense… that was a trespass… and then search them.

And, second, Justice Powell’s concurrence in Robinson makes a lot of sense.

But if you engage in constitutional–

Samuel A. Alito, Jr.:

In Johnson, the search was illegal because they illegally entered the hotel room.

Isn’t that right?

So it didn’t matter what happened after that point.

Thomas C. Goldstein:

–That is not what the Court said.

The Court was quite clear on this, Justice Alito.

I just don’t think there’s two ways about it.

It was quite on all five of these cases.

I’m not saying the Court couldn’t have decided the case otherwise.

That’s true.

I think the Court could have had a different rationale, but the point is it didn’t.

All of these cases cite each other.

It’s a uniform line of authority.

It’s not an accident.

It’s not–

Anthony M. Kennedy:

The Court simply said we’re going to use our Federal supervisory power and incorporate the State law of arrest.

Anthony M. Kennedy:

If we don’t have another body of law, we’re going to do it.

It didn’t say it was required to by the Constitution.

That’s not the way I read Di Re.

Thomas C. Goldstein:

–Well, then… I don’t know how you pronounce it either, but I do know that Johnson, Ker, and DeFillippo are cases that are against the State.

They are not supervisory authority cases.

Anthony M. Kennedy:

Then you have three cases, not five.

Thomas C. Goldstein:

Well, I disagree.

Stephen G. Breyer:

Putting cases aside for the moment–

Thomas C. Goldstein:

Yes.

Stephen G. Breyer:

–I mean if we reach this question, you must have lost on the first question.

I mean you win… if you win on the first question, you win.

If you… all right.

If you have lost on the first question, this is not an unreasonable search… arrest, rather, under the Fourth Amendment.

And, moreover, it’s not enough of a big deal, so the State makes it suppressible.

Otherwise, a… and so now we’re talking about minor things under State law that is secondary at the least.

And there, when the policeman make a mistake about that, the reason we let him search is he might be hurt, the policeman.

There’s danger involved.

And so I don’t see why at the moment that rationale wouldn’t apply just as strongly with a reason for it being unlawful under State but not Federal law is a violation of one of these subsidiary rules whether he, you know, thought the guy was going to keep driving under the suspended license or, you know, might be risky or might not show up.

Thomas C. Goldstein:

May I?

There is no claim of good faith here which could be raised to a Fourth Amendment argument in a later case.

There’s absolutely no mistake.

And we don’t want to encourage officers to conduct illegal arrests and search people.

John G. Roberts, Jr.:

You can finish your answer.

Thomas C. Goldstein:

That’s it.

John G. Roberts, Jr.:

All right.

Thank you, Mr. Goldstein.

Mr. McCullough, you have four minutes remaining.

Stephen B. McCullough:

Thank you.

First, when counsel says that this is some kind of a unique Virginia statute, that’s wrong.

The brief filed by the ABA shows that all but nine States have enacted provisions that are similar, that involve restrictions on their officers’ authority, and each of those has exceptions, and so on and so forth.

Stephen B. McCullough:

So it is not a unique situation.

You have clear rules.

Why would you trade them in for a morass?

An arrest is constitutional if the officers have probable cause to believe a crime has been committed.

Ruth Bader Ginsburg:

Any crime at all?

Stephen B. McCullough:

I’m sorry?

Ruth Bader Ginsburg:

Any crime at all; jaywalking, for example?

Stephen B. McCullough:

That’s… that’s correct.

David H. Souter:

We would never know about it if the… if the misdemeanor, or jaywalking offense, was not committed in the officer’s presence.

Stephen B. McCullough:

That’s right.

In the case–

David H. Souter:

That’s not a problem for you here, but that is a limitation on what we have held.

Stephen B. McCullough:

–That’s correct.

In Atwater, a jaywalking arrest is constitutionally permissible.

Atwater did not reach the in-the-presence question, and it is not presented here because the offense occurred in the officer’s presence.

So–

Antonin Scalia:

Mr. McCullough, what is here, for some reason the Commonwealth did not cite Cooper v. California, which I can’t understand unless you agree with your friend that it has been overruled by later cases.

Stephen B. McCullough:

–No.

I think… we relied on Greenwood, and so I–

Antonin Scalia:

I understand.

Why didn’t you cite Cooper v. California?

Stephen B. McCullough:

–I don’t have an explanation for that.

We certainly think it strongly… as the United States points out in their brief, that it strongly supports our position.

And as the lower courts have noted when facing a similar argument, you’ve already held that when it comes to a search, that under Greenwood and Cooper, that State-law considerations aren’t going to be what the constitutional inquiry turns on.

Why would you have this incongruity where that’s true in Greenwood and Cooper with a search of a residence or an automobile but then you have a different rule when it comes to an arrest?

The States have been handling this problem, but it’s an issue of State law.

And the State here has never held, going back to 1924, that a violation of State law rises to the level of a constitutional arrest and… or, excuse me… that… let me restate that.

That a violation of State law warrants the exclusionary rule at the State level.

So when the legislature enacted this, they contemplated that specific set of remedies.

So, at the end of the day, we just ask the Court to adhere to its jurisprudence; that the arrest is constitutional because it is made with probable cause.

Stephen B. McCullough:

There was a violation of state law, but it wasn’t a constitutional problem.

And so we would ask the Court to reverse the judgment below.

Ruth Bader Ginsburg:

Mr. McCullough, there is one thing that I was curious about.

It is this Virginia law that allows the custodial arrest pursuant to an order of a general district court.

Stephen B. McCullough:

Yes.

Ruth Bader Ginsburg:

When is that used?

Stephen B. McCullough:

That is used with some frequency, and we certainly saw an increase in the wake of the Moore decision.

I can’t go county by county and city by city, but it has common currency.

And one example is Portsmouth evidently, although it is not clear… we have gotten conflicting answers.

When Mr. Moore was arrested, there is no such order.

But a few miles down the road the City of Virginia Beach does have such an order.

And this just shows the complexities the Court would be stepping in where, if Mr. Moore is arrested in Portsmouth for the exact same crime on the exact same facts, it is unconstitutional under Moore’s rule.

But he goes a few miles down the road to the City of Virginia Beach, and the arrest is perfectly constitutional because the district court has entered such an order.

And it just doesn’t make sense, as the Court noted in Whren, for constitutional provisions to be so variable.

Ruth Bader Ginsburg:

What would be the basis of a… can a district court enter such an order just because it thinks it’s a good idea?

Are there any grounds in–

Stephen B. McCullough:

The statute… I see my time has expired.

The statute at issue, 46.2-936, does not really lay out particular criteria.

So it is… and the issue hasn’t been litigated in the Virginia courts as to the criteria that’s required.

But it seems to be broad discretion by the general district judge.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.