What Counts as a "Crime" For Fourth Amendment Purposes? Why Arrests for "No Arrest Offenses" Violate the Fourth Amendment
By SHERRY F. COLB
|Wednesday, Nov. 14, 2007|
The U.S. Supreme Court recently agreed to hear Virginia v. Moore. The case raises the following question: If state law prohibits arrests for some offense, may police nonetheless arrest a suspect for that particular offense and search him without violating the Fourth Amendment? The case implicates the proper state/federal division of labor in giving content to the federal guarantee against unreasonable searches and seizures.
In February 2003, two Virginia police officers detained David Lee Moore for driving with a suspended license, an act for which Virginia law does not authorize arrest. The officers nonetheless arrested Moore and searched him incident to the arrest. During the search, police discovered crack cocaine, and Moore was consequently prosecuted and convicted of possession with intent to distribute the drug.
On appeal, however, the Virginia Supreme Court dismissed the indictment against Moore, holding that under the Fourth Amendment exclusionary rule, the trial judge should have suppressed the evidence seized after the arrest.
Dividing Responsibility Between Federal Constitutional Law and State Law
To determine whether an arrest or search by state officers violates the Fourth Amendment, one must know something about both the Fourth Amendment and the law of the state in question. Federal constitutional law tells us that police may not arrest a suspect in the absence of probable cause to believe that he has committed a crime. We must look to state law, though, to learn whether the conduct that the police had probable cause to believe took place corresponded with conduct that the particular state classifies as a crime.
To illustrate, suppose that the police arrest John Doe. They claim that they complied with the obligations of the Fourth Amendment because they had probable cause to believe that Doe smoked a cigarette in a private building. Even if police did have such probable cause, however, it would not necessarily follow that police complied with the obligations of the Fourth Amendment in arresting him. If smoking in a private building is permissible under the relevant state law, then "probable cause" to believe that this act took place does not empower the police to carry out a "search" or "seizure" on the basis of the smoking. If smoking is impermissible, moreover, but only because it violates civil rather than criminal statutes, then the Fourth Amendment still bars police from arresting Doe.
By deciding not to pass criminal legislation against smoking in a private building, then, a state can effectively prohibit police from arresting anyone for smoking in a private building, and this prohibition stands as a matter not only of state law, but of Fourth Amendment law as well.
Though states have the power to decide which conduct to classify as criminal, and such classifications will have decisive Fourth Amendment implications, states cannot dictate the federal procedural requirements that follow from classifying conduct as criminal.
Instead of permitting smoking in private buildings, for example, Virginia could decide to classify smoking in a private building as a crime but to require more than probable cause (say, proof by a preponderance of the evidence) to support an arrest of a person for this crime. If Virginia did this, however, the state procedural standard would have no effect on the Fourth Amendment legality of arrests for the crime. Police could arrest Doe on the basis of mere probable cause for smoking in a private building without violating the Fourth Amendment, even though they would thereby be flouting the state's procedural requirements.
Though this distinction may, at first glance, seem arbitrary, it is not. As long as a state does not violate substantive constitutional principles (for example, by banning free speech), it has the power to decide which conduct to criminalize, which conduct to subject to civil but not criminal regulation, and which conduct to permit outright. This power of each state, to design its own substantive criminal law, means that an activity violating the criminal law in Michigan - such as physician-assisted suicide - might be legal in the state of Oregon.
Arresting a doctor on the basis of probable cause to believe that she had assisted in a suicide would, accordingly, violate the Fourth Amendment in Oregon, but would not violate the Fourth Amendment in Michigan. This is another way of saying that when states classify specific conduct as a crime, they necessarily activate the Fourth Amendment procedural apparatus (probable cause, a warrant, etc.) as both a necessary and sufficient condition for police search and seizure in connection with that crime. The converse is true as well: When a state chooses not to classify conduct as a crime, it simultaneously triggers a Fourth Amendment ban on all arrests and searches premised upon that conduct.
Citation-only Misdemeanors: The Class of Conduct at Issue Before the Court
The case before the Supreme Court involves a "hybrid" classification of driver misconduct. Virginia law considers driving with a suspended license a misdemeanor - a kind of crime - but it also says that police may not arrest anyone solely for driving with a suspended license. When a police officer stops a driver for this offense alone, she may only issue a citation.
Because the police in Moore's case carried out an arrest as well as a search incident to that arrest, they plainly acted in violation of state law. The question, however, is what Fourth Amendment consequences - if any - should follow from that violation.
The government's perspective is that no consequences should follow: If the state of Virginia wants to impose heightened requirements on its law enforcement officers, requirements that exceed those of the Fourth Amendment, then it is free to do so. Doing so does not, however, convert a mere violation of state law into a violation of the federal Fourth Amendment. State legislatures, in other words, may provide additional safeguards as a matter of state law, but they do not have the power to alter the procedural demands of the Fourth Amendment.
The "Question Presented" to the Supreme Court by the State of Virginia reflects this view. It asks: 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? The answer, of course, depends on what sort of "provision of state law" is at issue - a procedural or a substantive one?
The government concedes - as it must - that a state retains the power to trigger the procedural requirements of the Fourth Amendment through its substantive law. State A can choose to permit conduct that is criminal in State B and thereby render an arrest on the basis of probable cause to believe a person has engaged in that conduct - a lawful arrest in State B - a violation of the Fourth Amendment in State A.
The government argues, however, that the state's power in this regard is limited to designating an act as a "crime," and that once this designation attaches, the Fourth Amendment automatically permits arrest (and, by extension, searches incident to arrest) for the act in question, on the basis of probable cause to believe the arrestee has committed the act.
The weakness in this argument is that the label "civil" or "criminal" does not tell us the whole story. If, for example, a state called killing a "civil offense" but nonetheless allowed for the arrest and later incarceration (or execution) of people for killing, then the federal Constitution would properly treat killing in the relevant state as a crime, requiring the whole panoply of procedural protections that attach to the imposition of criminal sanctions, regardless of what the state chose to call the conduct. What matters, then, is not the use of the word "crime" but the substance of the state's classification of the conduct in question.
On this approach, in the state of Virginia, the act of driving with a suspended license looks very much like a civil offense, rather than a criminal offense, conduct that therefore never gives rise to "probable cause" for an arrest, any more than does an act of smoking in a private building. The State makes this clear by denying the police the most basic incident of criminal treatment - the power to arrest a criminal - in the case of this conduct. No matter how certain the police might be that a person violated the law against driving with a suspended license, they still lack the authority to arrest him for it.
The Impact of the Supreme Court's Precedent: Atwater v. City of Lago Vista
The Justices might still be inclined to reject this argument and rest their conclusion on the name "misdemeanor" that attaches to the conduct in question. In defense of such a conclusion, they might rely on Atwater v. City of Lago Vista, a case in which a woman was arrested for driving without securing either herself or her passenger children in the front seat with seatbelts.
There, Texas law allowed police to arrest people for this conduct but punished the crime with a fine rather than imprisonment. In an appeal of a lawsuit filed by the woman arrested for the seatbelt violation, the Supreme Court held that the Fourth Amendment permits arrest for such an offense, even though incarceration is unavailable as a punishment. This decision might appear to stand for the proposition that arrest for a crime - no matter how minor - is lawful, for Fourth Amendment purposes, as long as there is probable cause.
I disagree with the Atwater decision. If a crime is not punishable by the loss of liberty, then it appears necessarily unreasonable - in my view - to deprive a person of her liberty on the basis of probable cause to believe she has committed the offense. Nonetheless, even assuming that Atwater was correctly decided, there is an important distinction between Atwater and Moore - the case currently before the Supreme Court -- that bears on any implications one might draw from one to the other.
Texas law gives police the authority to arrest a person for a seatbelt violation and thereby renders the conduct "criminal" for all investigative purposes. Texas's designation of a punishment for such a crime lies outside the expertise of the police. Indeed, Atwater, the seatbelt-law violator, might have been eligible for prison time for her actions if she had had a particular criminal history, and a police officer would have no reason to know whether or not she satisfied this condition.
The police have every reason to know, by contrast, whether they are allowed to arrest a person for a particular offense. Their authority to arrest depends entirely on facts that are necessarily available to them: the facts that establish whether they have probable cause to believe that a person committed an act subject to arrest under state law. A person's criminal history - information that prosecutors may later present to a jury or a judge to support a given penalty - plays no role at this stage and may be entirely unknown to the police.
The most sensible reading of Atwater is therefore that regardless of how a state punishes an offense, probable cause to arrest - that is, probable cause to believe that a person has committed an offense subject to arrest under state law - satisfies the Fourth Amendment. And in Moore, the police lacked this very probable cause to arrest: they did not have any basis for believing that Moore had committed an act that state law classifies as a crime subject to arrest.
For that reason, the U.S. Supreme Court should affirm the judgment of the Virginia Supreme Court and reverse Moore's conviction.