State laws don't create U.S. constitutional rights

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An officer’s violation of state law governing arrest does not equate to a violation of the Fourth Amendment.

In reaching that conclusion, the court consigned a long-standing Fourth Amend-ment precedent, U.S. v. Di Re, 332 U.S. 581 (1948), to a mere exercise of the Court’s supervisory power.

In addition, despite reaffirming the continuing validity of its decision in Knowles v. Iowa, 525 U.S. 113 (1998), the Court’s reasoning greatly undermines that decision.

In the case at bar, David Lee Moore was arrested in Virginia for driving with a suspended license. State law provides that, subject to exceptions not relevant to his case, an officer can only issue a citation for that offense, but cannot arrest the suspect.

Nevertheless, the officer arrested Moore and discovered crack cocaine.

The state-provided remedy is not suppression, however, but officer discipline and suit against the officer in tort.

After Moore’s prosecution in state court, the Virginia Supreme Court held that the fruits of the subsequent search incident to arrest must be suppressed.

However, the U.S. Supreme Court reversed, in a decision by Justice Antonin Scalia.

Supervisory Power

In Di Re, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The court held that, since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards.

In Moore’s case, however, the Court dismissed the relevance of Di Re as follows: “This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute — saying that state law governs the validity of a warrantless arrest ‘in [the] absence of an applicable federal statute,’ and that the Di Re rule applies ‘except in those cases where Congress has enacted a federal rule.’”

In a concurrence, Justice Ruth Bader Ginsburg took issue with this characterization.

Ginsburg noted that the Court’s opinion in Di Re nowhere mentions its supervisory powers, but is replete with references to the Constitution.

She agreed with the ultimate holding, however, because Virginia limited the remedies for a violation of the law so as not to include suppression of evidence.

Probable Cause

Turning to the merits, the court held that the search did not violate the Fourth Amendment.

The court concluded, “warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution… [W]hile States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.”

The court distinguished Knowles. In Knowles, the officer could have arrested the suspect, but chose a less intrusive option — issuing a citation. However, the officer searched the suspect, nonetheless.

Even though the officer could have arrested and searched Knowles, the Supreme Court held that he could not issue him a citation and search him, because the issuance of a citation poses a much lower risk to the officer than arrest does.

Moore, on the other hand, was arrested, and the officers thus faced the same dangers as in any other custodial arrest, even though the arrest itself was contrary to state law.

Because the officers had probable cause to believe that Moore committed a crime, and did in fact arrest him, the Court held the search incident to that arrest was lawful.

Case analysis

The court’s classification of Di Re as an exercise of the Court’s supervisory power, rather than an interpretation of the Fourth Amendment, is an example of projection.

When a court exercises its supervisory powers, it promulgates a rule not required by the Constitution, but as a matter of policy.

For example, the Wisconsin Supreme Court recently exercised its supervisory powers to require the recording of confessions in felonies (while still permitting the evidence to be admitted).

Were Di Re to come to the Court today, as a matter of first impression, the Court would not decide the case as a matter involving the Fourth Amendment, but as a matter of its supervisory powers.

The case involved a federal statute, limiting the powers of its own officers, not the Fourth Amendment per se. The exclusionary rule only applies to constitutional violations, however.

Therefore, today’s Court concludes, the Supreme Court in 1948 must have done and thought the same.

However, this projection of modern motivations to a court sitting 60 years ago, lacks any basis in historical fact.

As Justice Ginsburg noted, the term “supervisory powers” is wholly absent in Di Re.
Instead, the Di Re court concluded, “It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.” Di Re, 332 U.S. at 595.

Such language leaves no doubt that the Court in Di Re was interpreting the Constitution (whether correctly or not), not exercising its supervisory power to bar admission of evidence even when its gathering did not violate the Constitution.

The second noteworthy aspect of the case is that the reasoning of Knowles is seriously undermined, even though the continuing validity of Knowles was reaffirmed.

The court wrote, “A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.”

We could easily paraphrase this statement to read: “A [police officer] is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but [the legal availability] of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.”

In fact, the paraphrased version, had it been stated in Knowles, seems more indisputably correct than the Court’s statement last week in Moore.

Yet, the Court reaffirmed its holding in Knowles to the contrary — even though an officer could arrest and search the suspect, he may not choose the less restrictive option of issuing a citation and searching the suspect.