Moore v. Commonwealth

¶1dissenting.

¶2I agree with the majority that Moore was arrested in violation of Code § 19.2-74. However, I cannot concur in the judgment to reverse. I would hold that, because Moore was placed under full custodial arrest supported by probable cause to believe a criminal offense was committed, Moore’s arrest did not violate the United States Constitution. The exclusionary rule therefore does not apply, and Moore’s conviction should be affirmed.

¶3*160The evidence in this case establishes beyond dispute that Moore was placed under a full custodial arrest supported by probable cause that a criminal offense had been committed. After stopping Moore in his vehicle, an officer on the scene determined that Moore’s driving license was suspended. Thus, the police had probable cause to believe that Moore was driving on a suspended license, a misdemeanor violation of Code § 46.2-801(C). Moore was subsequently placed in handcuffs, made to wait forty-five minutes by his car until animal control arrived, and then transported to his hotel room.

¶4I.

¶5Because Moore’s arrest was based on probable cause that he committed the offense of driving on a suspended license, the arrest did not violate the Fourth Amendment to the United States Constitution. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) (holding that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender” (emphasis added)); see also Penn v. Commonwealth, 13 Va.App. 399, 407, 412 S.E.2d 189, 194 (1991) (holding that “probable cause is the standard for testing the constitutional validity of an arrest”).

¶6Furthermore, it is clear that the Fourth Amendment to the United States Constitution is not violated as a result of a state law violation. The principle that state law is not relevant to a determination of whether the Fourth Amendment is violated, and thus whether the concomitant exclusionary rule is implicated, is firmly rooted in jurisprudence. See California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 1630, 100 L.Ed.2d 30 (1988) (holding that evidence obtained in violation of California law should not have been excluded under the Fourth Amendment because the Court has “never intimated ... that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs”); see also Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir.2002) (holding that “[tjhere *161is no federal right not to be arrested in violation of state law”); United States v. Van Metre, 150 F.3d 339, 347 (4th Cir.1998) (holding that whether the arrest was “conducted in accordance with Tennessee state law is irrelevant to our analysis” of whether to suppress the evidence pursuant to the federal exclusionary rule); United States v. Bell, 54 F.3d 502, 504 (8th Cir.1995) (holding the lower court erred by looking to state law to determine that the arrest was invalid, and thus excluding the evidence, because “[a]n arrest by state officers is reasonable in the Fourth Amendment sense if it is based on probable cause”); United States v. Wright, 16 F.3d 1429, 1437 (6th Cir.1994) (holding that “[t]he fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended ... because the exclusionary rule is only concerned with deterring Constitutional violations”); United States v. Walker, 960 F.2d 409, 415 (5th Cir.1992) (holding that “[w]hether the Fourth Amendment has been violated is determined solely by looking to federal law on the subject” (emphasis added)); Anderson v. Haas, 341 F.2d 497, 499 (3d Cir.1965) (evaluating civil rights claim and holding that whether an arrest violates the federal constitution requires reference to federal law and that it is “immaterial whether [the police officer’s] conduct is legal or illegal as a matter of state law” (internal quotations omitted)); Horne v. Commonwealth, 230 Va. 512, 519, 339 S.E.2d 186, 191 (1986); Penn, 13 Va.App. at 406, 412 S.E.2d at 194.

¶7Moreover, this Court has held that exclusion is not an appropriate remedy when a state statute is violated “ ‘absent an express statutory provision for suppression.’ ” Janis v. Commonwealth, 22 Va.App. 646, 651, 472 S.E.2d 649, 652 (quoting Troncoso v. Commonwealth, 12 Va.App. 942, 944, 407 S.E.2d 349, 350 (1991)), aff'd on reh’g en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996).3 Code § 19.2-74 does not direct that evidence obtained in violation of its provisions must be sup*162pressed. I would therefore find that the exclusion of evidence in this case is without legal support.

¶8II.

¶9That Moore was arrested based on probable cause is not a factor in the majority’s calculus. Instead, the majority concludes that Moore was, “in effect,” searched incident to a citation because Code § 19.2-74 does not permit a full custodial arrest. It cites Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), in support of the fiction it creates and does so in order to avail itself of the Knowlesholding. In Knowles, a case originating in Iowa, a state statute gave the police the discretionary authority to either arrest or issue a citation for the minor traffic violation of speeding. Id. at 115, 119 S.Ct. at 486. The Supreme Court held that a search conducted incident to the issuance of a citation violates the United States Constitution. Id. at 114, 119 S.Ct. at 486. The majority in this case concludes that, because Code § 19.2-74 does not authorize an arrest and limits police discretion to the issuance of a summons, the search in this case can only be denominated as incident to the issuance of a citation, in which *163case the Knowlesholding would require exclusion of the seized evidence. I cannot concur in this reasoning.

¶10It is undeniable that the Supreme Court in Knowlesnoted the Iowa statutory provision permitting a police officer to issue a citation for speeding rather than effecting an arrest. Id. at 115, 119 S.Ct. at 486. However, the majority places undue reliance on this factual distinction because the statutory authority to arrest had no bearing whatsoever on the decision. See id. at 114, 119 S.Ct. at 486. The Supreme Court confined itself to determining “whether [a search incident to a citation] authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car,” id.,and the question was answered in the negative. Id.(“We answer this question ‘no.’ ”). A careful reading of Knowlesdiscloses not a single reference to the discretionary authority granted to the Iowa police force to arrest as a reason for the Supreme Court’s conclusions. Rather, the critical fact for the Supreme Court was that the defendant was not arrested and, because the defendant was not arrested, that the “historic rationales” underlying the search incident to arrest exception were not present. Id. at 116-17,119 S.Ct. at 487 (“The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest.” (Emphasis added)). The Supreme Court’s reasoning makes abundantly clear that the search incident to arrest exception applies only when an actual arrest takes place because only then are the historic rationales underlying the exception present. This reading of Knowlescomports not only with the language of the opinion itself but also with prior Supreme Court precedent. See, e.g., United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973) (“It is the fact of the lawful arrest which establishes the authority to search----” (emphasis added)). On the other hand, the majority’s reading of Knowlesrequires the conclusion that the decision signified, sub silentio, a sea change in federal law.4Cf. supra Part I.

¶11*164In the present case, we must address a question not addressed in Knowles. The facts establish that an arrest occurred, not that a citation was issued. The question formulated by those facts is whether an arrest that occurs in violation of state law also violates the Fourth Amendment to the United States Constitution, triggering the exclusionary rule.

¶12We answered this question in the negative in Penn. In Penn, this Court considered whether to exclude evidence obtained by a police officer incident to an arrest that violated Code § 19.2-81, a statute granting police the authority to arrest for misdemeanors only when committed in their presence. Penn, 13 Va.App. at 401, 412 S.E.2d at 190. We determined that the police officer’s arrest of the defendant violated Code § 19.2-81 because the crime did not take place in the police officer’s presence. Id. at 402, 412 S.E.2d at 190. We affirmed the conviction, however, reasoning that, although the arresting police officer was not in the presence of the defendant when the crime was committed, the officer had probable cause to believe that a crime had been committed because he was informed of the crime by another police officer. Id. at 408, 412 S.E.2d at 194. Because the officer had probable cause to believe the defendant committed a crime, we held that his arrest did not violate the Fourth Amendment and that the evidence obtained incident to the arrest could not be suppressed. Id.

¶13Although this case arose under a different statute, Code § 19.2-74 rather than Code § 19.2-81,1 perceive no principled distinction than can be made which would compel a result different from that reached in Penn. Indeed, nothing in Virginia case law interpreting Code § 19.2-74 requires a different result. To the extent the majority relies on Virginia cases to reach a different result, the reliance is misplaced; none of the cases cited involved a full custodial arrest of the defendant in violation of Code § 19.2-74, the circumstances presented here. In Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), the defendant was not placed under custodial arrest. Id. at 592, 522 S.E.2d at 857. The Court thus rejected “the Commonwealth’s argument that the existence of probable *165cause to charge Lovelace with drinking an alcoholic beverage in public allowed Womack to search him.”5Id. at 596, 522 S.E.2d at 860. In West v. Commonwealth, 36 Va.App. 237, 549 S.E.2d 605 (2001), a search conducted immediately after the officer was “filling out the summonses” and before an arrest could be effected was not justified by the search incident to arrest exception. Id. at 240-42, 549 S.E.2d at 606-07. Finally, in Rhodes v. Commonwealth, 29 Va.App. 641, 513 S.E.2d 904 (1999) (en banc), we held that the search incident to arrest exception could not apply where the defendant was searched during a “non-eustodial detention.” Id. at 645, 513 S.E.2d at 906.6

¶14Because Moore’s arrest was based on probable cause, I am compelled to conclude that his Fourth Amendment rights were not violated. In the absence of a violation of Moore’s Fourth Amendment rights, the federal exclusionary rule cannot apply, and neither the statute nor Virginia case law provides for an exclusionary rule.7 Accordingly, I would vote to affirm Moore’s conviction.