RENEE MONTAGNE, host:
Roughly half the states have laws that make it illegal for police to arrest misdemeanor traffic offenders. Instead, officers are supposed to issue a summons and send the motorist on his or her way. But what happens when police violate state law and arrest an errant motorist anyway and then search the motorist and find drugs? The U.S. Supreme Court is reviewing whether the drugs may be used to prosecute that motorist now for a drug crime.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: In 2005, police near Portsmouth, Virginia, stopped David Lee Moore for driving on a suspended license. They arrested him, took him to his hotel room, searched him, and found crack cocaine in his pocket, whereupon they charged him with a drug offense. The Virginia Supreme Court ruled that since the arrest was illegal, so was the search, that it violated the Constitution's ban on unreasonable searches, and that the drugs could not be used at trial against Moore.
Yesterday, on the steps of the U.S. Supreme Court, Moore's lawyer, Thomas Goldstein, reiterated that argument.
Mr. THOMAS GOLDSTEIN (Attorney): We don't want to encourage cops out there to be violating the law, to arrest people when they're not allowed, just to get the chance to search them in the hope of finding something.
TOTENBERG: Inside the Supreme Court, Goldstein had a hard time selling that argument, particularly since a few years ago the court said a state could constitutionally arrest a driver and hold her in jail for a seatbelt law violation. Justice Souter: If the Constitution allows that, isn't it irrational to say it's not okay for police to conduct a search to ensure the person is not carrying a weapon that might be used to hurt the police officer? Justice Kennedy: Isn't it easier to have one uniform federal rule under the Constitution dealing with searches? Chief Justice Roberts: You're not saying this wasn't an arrest. You're saying it wasn't a lawful arrest. Our precedents say you can search incident to arrest. Answer: This court has consistently held that arrest has to be lawful under state law. If you're allowed to arrest him, arrest him. If you're not, you're not, and you can't search him constitutionally.
The state of Virginia's Stephen McCullough countered those arguments, contending that all Virginia had done here was to add a procedure limiting arrests under state law, and that those procedures cannot change what's a permissible search under the federal Constitution. Justice Ginsburg: If the officers had issued a summons, as they were supposed to, you agree they could not have conducted a search. Answer: Yes. Justice Ginsburg: So would you explain the logic to saying that when the police violate state law, then the evidence can be used at trial, but when they follow state law, it cannot be used? Answer: Under the Constitution, an arrest is permissible if the officers have probable cause to believe a crime has been committed. Justice Ginsburg: Any crime at all? Jaywalking, for example? Answer: That's correct. Justice Stevens: You say the officers made a custodial arrest. Did they search the defendant at the time of the arrest? Answer: No. The search took place later at the hotel. Justice Stevens, caustically: So it was incident to an ongoing arrest? That's a new concept.
Justice Scalia drew a comparison to others who might conduct searches. Suppose I think my neighbor is growing marijuana and I go and search his house, and sure enough, I find marijuana and I bring it to the police. I'm a state actor, you know. A Supreme Court justice should not be living next door to someone growing marijuana. Is it rendered an unreasonable search by the fact that I'm not a law enforcement officer? Answer: No. Justice Scalia: That's fantastic. You really think that? What about a janitor - a federally employed janitor? His neighbor is growing marijuana. Can he conduct a search? Answer: Yes. Justice Scalia: Wow.
At this point, U.S. Deputy Solicitor General Michael Dreeben came riding to the rescue, telling the justices that if the state enacts more protections from arrest than are in the Constitution, that doesn't affect what's a legal search under the federal Constitution.
Instead, it's up to the states to enact legal remedies, like firing police who make illegal arrests. So were the police who made this illegal arrest and conducted this search fired? After the argument, the state's Mr. McCullough conceded they were not.
Mr. STEPHEN McCULLOUGH (Virginia's Deputy Solicitor General): They made a judgment call at the scene. The court, state courts concluded it was wrong. That doesn't mean they're horrible cops. In fact, one of them was awarded Cop of the Year in Portsmouth in 2005.
TOTENBERG: That was the year of the Moore arrest.
Nina Totenberg, NPR News, Washington.