A GOOD CASE TO KNOW ABOUT

By Lt. John Garrido

On 2 Nov 08, 25th District officers arrested 2 offenders for drinking on the public way. A custodial search incident to the arrest revealed the offenders to be in possession of fictitious SS cards and fictitious green cards. When Detective Sofrenovic sought the appropriate felony charge, ASA Essig rejected charges, citing "Prosecutorial Discretion"
and "4th Amendment issues" in regard to the arrest.

Being the W/C that day, I contacted her supervisor, ASA Grawth. Aside from the b.s. discretion nonsense, I was more concerned about the 4th Amendment argument. He alleged that when officers make a physical arrest for a charge that is less than a misdemeanor (like drinking on the public way or a traffic citation) and it leads to another charge due to the search, they are actually violating the offender's constitutional rights under the 4th amendment. Believing he was wrong, I went for the over-ride; thank you Commander Welch.

I did a little research and confirmed that not only is he wrong, but there is a recent United States Supreme Court case to support the argument that there is no 4th Amendment Violation; the case couldn't be more on point and it was decided on April 23, 2008.

http://caselaw.lp.findlaw.com/scripts/
getcase.pl?court=US&vol=000&invol=06-1082

VIRGINIA, Petitioner v. DAVID LEE MOORE

No. 06-1082

SUPREME COURT OF THE UNITED STATES

128 S. Ct. 1598; 170 L. Ed. 2d 559; 2008 U.S. LEXIS 3674; 76 U.S.L.W. 4237; 21 Fla.

L. Weekly Fed. S 195

January 14, 2008, Argued
April 23, 2008, Decided

NOTICE: The LEXIS pagination of this document is subject to change pending release of the final
published version.
PRIOR HISTORY: [***1] ON WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA.

Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 2006 Va. LEXIS 99 (2006)

DISPOSITION: Reversed and remanded.

Case in Brief

Time-saving, comprehensive research tool. Includes expanded summary, extensive research and analysis, and links to LexisNexis® content and available court documents.

Expert Commentary

Sean F. Connolly on Analyzing State Arrest Statutes Under Virginia v. Moore Until recently, plaintiff's lawyers and criminal defense practitioners had been crying "foul" for arrests made by police officers that, while permissible under the United States Constitution, violated specific state-law arrest statutes. The United States Supreme Court
has now put to rest the argument that a violation of state law may form the basis for a federal Constitutional violation. This Expert Commentary analyzes this Supreme Court ruling.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant was convicted for possessing cocaine with the intent to distribute, but his conviction was reversed by the Virginia Supreme Court. The court reasoned that since arresting officers should have issued defendant a citation for driving with a suspended license under state law rather than arresting him and the Fourth Amendment did not permit search incident to citation, an arrest search violated the Fourth Amendment. Certiorari was granted.

OVERVIEW: Defendant was stopped by police officers who suspected he was driving with a suspended license. After they confirmed his license was suspended, they arrested him for the misdemeanor even though under Va. Code Ann. § 19.2-74, they should have only issued him a summons. A search subsequent to arrest revealed he was carrying crack cocaine. The Court noted that its decisions counseled against changing the calculus that the arrest was constitutionally reasonable because there was probable cause to believe defendant committed the minor crime in the officer's presence. The Court had treated additional protections exclusively as matters of state law. Virginia chose to protect individual privacy and dignity more than the Fourth Amendment required, but it also chose not to attach to violations of its arrest rules the potent remedies that federal courts had applied to Fourth Amendment violations. Linking Fourth Amendment protections to state law would have meant losing a bright-line constitutional standard as well as causing those protection to vary from place to place and from time to time. Because the arrest was constitutional, the search incident to the arrest was also constitutional.

OUTCOME: The judgment of the Supreme Court of Virginia was reversed, and the case was remanded for further proceedings not inconsistent with the opinion. 9-0 decision; 1 concurrence.

CORE TERMS: arrest, state law, misdemeanor, probable cause, warrantless arrests, searches and seizures, arresting officers, search incident, arrested, driving, privacy, common law, suspended license, evidence obtained, state officers, safeguard, seizure, police officer, suppression, summons, lawful, constitutionally permissible, federal officers, supervisory power, reasonableness, restrictive, arresting, legality, seized, felony

LEXISNEXIS® HEADNOTES

HN1

Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who fail or refuse to discontinue the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. § 19.2-74 (2004).

HN2

Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law.

HN3

The Fourth Amendment protects against unreasonable searches and seizures of (among other things) the person. In determining whether a search or seizure is unreasonable, the United States Supreme Court begins with history. It looks to the statutes and common law of the founding era to determine the norms that the
Fourth Amendment was meant to preserve.

HN4

 

When history has not provided a conclusive answer, the United States Supreme Court has analyzed a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests.

HN5

When an officer has probable cause to believe a person committed even a minor
crime in his presence, the balancing of private and public interests is not in
doubt. The arrest is constitutionally reasonable.

HN6

Whether or not a search is reasonable within the meaning of the Fourth Amendment, has never depended on the law of the particular state in which the search occurs. While individual states may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution, state law does not alter the content of the Fourth Amendment.

HN7

The Fourth Amendment's meaning does not change with local law enforcement practices--even practices set by rule. While those practices vary from place to place and from time to time, Fourth Amendment protections are not so variable and cannot be made to turn upon such trivialities.

HN8

Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law; a warrantless arrest satisfies the Federal Constitution so long as the officer has probable cause to believe that the suspect has committed or is committing a crime.

HN9

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.

HN10

Virginia does not ordinarily exclude from criminal trials evidence obtained in
violation of its statutes.

HN11

In determining what is reasonable under the Fourth Amendment, the United
States Supreme Court has given great weight to the essential interest in readily administrable rules. It has acknowledged that nuanced judgments about the need for warrantless arrest are desirable, but the Court nonetheless has declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. The rule extends even to minor misdemeanor because of the need for a bright-line constitutional standard.

HN12

Warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.

HN13

Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. This rule covers any lawful arrest with constitutional law as the reference point. That is to say, a lawful arrest is equated with an arrest based on probable cause. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

HN14

The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during the extended exposure which follows the taking of a suspect into custody and transporting him to the police station. Officers issuing citations do not face the same danger, and, therefore, they do not have the same authority to search.

 

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Dear Superintendent Weis,

I was reading the Lieutenants Association Newsletter and was very happy to see Lieutenant Robert Stasch's article about the Saint Jude March. He is absolutely right in wanting the Saint Jude March back on Michigan Avenue.

Last year I sent an E-Mail to Superintendant Cline expressing the opinion of myself and several other officers that the Saint Jude March should be on Michigan Avenue. I received a polite respond and that was the end of it.

The decision to move the Saint Jude March to the Memorial was made by a small group of people. I think that the entire department should have been polled on this matter.

The bottom line is that we get so much negative press and I feel that when the Chicago Police Department is doing something so wonderful as honoring their fallen members that they should be in their full glory on Michigan Avenue for the whole world to see.

Thank you for taking the time to read this and thank you in advance for any consideration given to this matter.

Lieutenant Maureen E. Ziegenhorn
18th District

The letter from Lt. Ziegenhorn was sent to the Superintendent on 21 May 2008. The Superintendent has responded since then to her that he is working to ensure that the St. Judes March will be held next year back on Michigan Ave. where it belongs.