April 23, 2008
Thoughts on Virginia v. Moore
The U.S. Supreme Court decided Virginia v. Moore today. The Court rejected Moore's claim that his arrest, and the search incident thereto, violated the Fourth Amendment by virtue of the fact that the arrest was made in violation of state law. Virginia law provides that the misdemeanor for which Moore was arrested is generally a non-arrestable offense. When the officers mistakenly arrested him, they found crack cocaine and a large sum of money in a search incident to the arrest, leading to a possession with intent to distribute charge.
The virtually unanimous result -- Justice Ginsburg concurred only in the judgment -- was expected but, I think, unfortunate. The opinion, written by Justice Scalia, gives short shrift to the notion that "unreasonable" searches and seizures under the Fourth Amendment may encompass those that are not allowed by state law. After all, the Fourth Amendment, and the rest of the Bill of Rights, originated as a result of the anti-federalist's fears of a powerful federal government. They insisted on the inclusion of the Bill as a condition of ratification of the Constitution in several key States. The Bill of Rights thus aligns state power and individual liberties against the awsome power of the new and fear-inducing central government.
Given this, is it so unnatural to think that the Fourth Amendment's use of the term "unreasonable searches and seizures" is shorthand for "searches and seizures prohibited by the laws of each respective State?" In this way, federal power would be constrained because federal officers could search and seize only to the extent that state officers could do the same. State norms would dictate federal norms.
The Court's initial observation that "if anything . . . founding-era citizens were skeptical of using the rules for search and seizures set by government actors as the index of reasonableness," slip op. at 4, misses the mark because it elides the distinction between federal actors and state actors, combining them into one category -- surely, one foreign to the framers and ratifiers -- of "government actors." Founding-era citizens were indeed skeptical of federal actors; but they were far more sanguine about state actors, who were likely to be their friends and neighbors and in whose selection they might have some say.
Of course, that might explain Fourth Amendment constraints on federal actors. Moore, of course, complained of an unlawful seizure by state actors so his claim is technically one grounded in the Fourteenth, not the Fourth, Amendment. But it also seems sensible to me that the Fourteenth Amendment's requirement of "due process of law," like its predecessor in Magna Carta, which referred to "the law of the land," might simply require no more and no less than that States actually follow their own law. After all, the primary concern of the framers and ratifiers of that Amendment was the disparate treatment of freed African-American slaves and relocated Northern Unionists. What better way to assure their protection, to paraphrase Justice Jackson's famous concurrence in the Railway Express case, than to require, not particular substantive standards of search and seizure law, but simply that everyone be subjected to the same standards, whatever they may be? If this view were to take root, our Fourth Amendment law would look very different. Indeed, it would be turned on its head -- there would be no uniform Fourth Amendment doctrine and the only question, in both federal and state court, would be whether state law was followed. Notice the elegant symmetry: both state and federal officers would be constitutionally required to follow the same (state) rules.
As the Court notes, "linking Fourth Amendment protections to state law would cause them to `vary from place to place and from time to time.'" Slip op. at 11 (quoting Whren v. United States, 517 U.S. 806, 815 (1996). But so what? First of all, this is already true to some extent. For example, running from the police in Washington Heights, NY (a "high-crime area"), without more, probably generates reasonable suspicion while doing the same thing in Scarsdale, NY (a "low-crime area"), without more, probably does not. Moreover, other constitutional provisions incorporate local standards, most notably the First Amendment definition of obscenity and the Sixth Amendment requirement of effective assistance of counsel. But most powerfully, the notion that the Fourth Amendment can vary, at least from time to time, was put forth by none other than the author of Moore, Justice Scalia, in his dissenting opinion in Georgia v. Randolph (2006):
"There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ” Phillips v. Washington Legal Foundation, 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The same is true of the Fourteenth Amendment Due Process Clause's protection of “property.” See Castle Rock v. Gonzales, 545 U.S. 748, ----, 125 S.Ct. 2796, ----, 162 L.Ed.2d 658 (2005). This reference to changeable law presents no problem for the originalist."
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