Victory from the Jaws of Defeat, from the Jaws of Victory, from the Jaws of Defeat . . .Understanding Virginia v. Moore and Virginia’s Uniform Summons Rule
by H. Lee Harrell
Deputy Commonwealth's Attorney
Wythe County, VA
In a single case, Virginia’s law enforcement experienced defeat snatched from the jaws of victory, victory taken back, the reemergence of defeat, and then, finally, permanent victory. The ping-ponging of what began as Commonwealth v. Moore1 resolved with a bright line rule in Virginia v. Moore2: so long as an officer has probable cause, a search incident to a resulting arrest is constitutional no matter the statutory restrictions imposed by the States’ legislatures. Although this bright line rule is useful to anyone involved in law enforcement, Virginia’s statutory scheme for arrests, which caused all the trouble to begin with, remains muddled.
David Lee Moore was convicted of possession of cocaine with the intent to distribute in the Circuit Court of the City of Portsmouth. The conviction stemmed from an arrest made by two investigators in Portsmouth, Virginia, who stopped Moore for operating his vehicle while his driver’s license was suspended, a Class 1 misdemeanor. Moore was arrested and subsequently searched incident to his arrest, whereupon the officers found sixteen grams of crack cocaine and $516 in his pockets. The Circuit Court of Portsmouth heard a motion to suppress the drug evidence based on the search incident to arrest, denied the motion and found Moore guilty. He was given a 5-year prison sentence with one year and six months of the sentence suspended. That conviction was overturned by a panel decision of Virginia’s Court of Appeals invoking Virginia’s statutory arrest rules by holding that Moore’s, “. . . search was unconstitutional because the Code made clear that, absent additional facts, the detectives were required to issue appellant a summons for the misdemeanor offense of driving on a suspended license.”3 An en banc decision reinstated Moore’s conviction, holding that although his arrest violated Virginia’s arrest statutes, exclusion of evidence was not the remedy because the Fourth Amendment’s requirement for probable cause was satisfied. Moore then appealed to the Virginia Supreme Court, which tersely overturned his conviction by holding the arrest was unlawful and the officers had no right to search him. The Commonwealth appealed that decision to the Supreme Court.
In its final iteration, Virginia v. Moore considered whether police officers violate the Fourth Amendment by making an arrest that is based on probable cause but prohibited by state law.4 The Commonwealth conceded the statutory violation but asserted that no constitutional guarantees had been violated by the police. Specifically at issue was §19.2-74, which prohibits custodial arrests for Class 1 misdemeanors committed in the presence of an officer such as the violation that formed the basis of the officers’ stop of Moore. Virginia has mandated that law enforcement shall issue a summons except for those who fail to cease their unlawful behavior and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. 5 Thus the gravamen of Moore’s complaint was, “You weren’t allowed to arrest me for this offense, so you should have issued me a summons and released me. Instead, you unlawfully searched me and so none of the fruits of your search can be used as evidence against me.” A unanimous Supreme Court of the United States felt otherwise reaffirming “against a novel challenge what we have signaled for more than half a century.”6
The Court took exception to the Virginia Supreme Court’s reliance on Knowles v. Iowa.7 Knowles held that when an officer releases an accused on a summons, no authority to search that person exists. This counterbalanced the Court’s rationale in United States v. Robinson, where the Court recognized that in the context of an arrest, a search enables officers to safeguard evidence and ensure their safety during, “the extended exposure which follows the taking of a suspect into custody and transporting him to the police stations.”8 The Court found that the Virginia Supreme Court missed the point by relying on Knowles because the officers arrested Moore and therefore faced all of those risks attendant with a custodial arrest that form the “adequate basis for treating all custodial arrests alike for the purposes of search justification.”9 The Virginia Supreme Court bootstrapped Moore’s situation into the Knowles’ holding, but this rationale failed once the U.S. Supreme Court found that his arrest was constitutionally valid. Yes, the officers should have released him on a summons, but because the officer had probable cause, Moore’s arrest satisfied the requirements of the Fourth Amendment. The Court was unwilling to extend constitutional guarantees into Virginia’s statutory scheme. Unlawful may not mean unconstitutional; here it did not. The Court recognized (and note the Court’s emphasis on the point that the exclusionary rule need not always be the remedy) that, “we have sometimes excluded evidence obtained through unconstitutional violations.”10 But the Court held that that state law is “not the province of the Fourth Amendment” and, [t]hat Amendment does not require the exclusion of evidence obtained by a constitutionally permissible arrest.”11 To date, the remedy for a violation of state law, such at §19.2-74, is not exclusion. We are left with the obvious and unanswered question: what is the remedy for an arrest that is unlawful in the eyes of state law but lawful in the eyes of the Constitution?
At the heart of the opinion, penned by Justice Scalia, is the concern that if constitutional principles are applied to state statutory rules for arrests, searches, and seizures, they will be hopelessly mired in state-to-state variations. He makes it clear that the States certainly have the right to extend greater protections to their citizens than those contemplated in the Constitution and its subsequent Amendments. Those greater protections, however, shall not be subjected to review using constitutional scrutiny. The Court has “treated additional protections exclusively as matters of state law.”12 The Court is surprised that this issue is even before it stating, “[w]e thought it obvious that the Fourth Amendment protections are not ‘so variable’ and cannot be ‘made to turn upon such trivialities.’”13 Justice Scalia aptly provides support for his position by looking to Virginia’s own jurisprudence. Referring to Janis v. Commonwealth,14 he points out that the Commonwealth does not ordinarily exclude from criminal trials evidence that was obtained in violation of its statutes. The Court declined to do just that for Mr. Moore. The result is a nice piece of black letter law: “. . . 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.”15
Adding to the strength of the opinion is the notion that Moore’s interpretation of constitutional jurisprudence would impair the States’ rights. States are free to go above the Fourth Amendment’s basic requirement for the existence of probable cause, but choosing to become more restrictive, as Virginia did, does not alter that baseline protection. Applying federal constitutional jurisprudence to Virginia’s statutory scheme of arrests would require application of the exclusionary rule as the remedy for violations. States that are unwilling to accept the pain of the exclusionary rule would have to abandon their statutory restrictions on arrest altogether suggests Justice Scalia. To do so would impinge on the prerogative of our independent state sovereigns. Leave it to Justice Scalia to cogently swat away a state statute in the name of state’s rights.
What remains from Moore is the confusion of Virginia’s statutory scheme for arrests and summons. That scheme is largely controlled by two code sections. Section 19.2-74 deals with arrests versus summons and the officer presence (or absence) requirement. Section 19.2-81 deals with the warrant requirement.
The officers in the Moore case were not rookies, but rather detectives. They presumably had more training and experience than most. Many law enforcement officers believe that they can custodially arrest for violations that occur in their presence, especially those that are jailable. This notion is directly countered in the first section of §19.2-74, which disfavors arrest for jailable misdemeanors committed in the presence of the officer (Class 1 and Class 2 misdemeanors). There are exceptions, however, where the individual will not discontinue his actions or where the officer reasonably believers the person will ignore a summons or is a danger to himself or others. The non-jailable offenses (except for public drunkenness) disallow custodial arrests. This answers the arrest versus summons question. The next question facing an officer is whether a warrantless arrest can be effectuated.
Warrantless arrests are contemplated under §19.2-81. The presence requirement of §19.2-74 is not part of the calculus under this section. Instead, §19.2-81 creates several exceptions to the warrant requirement regardless of officer presence. An officer who has probable cause can arrest someone absent a warrant for the following crimes:
Shoplifting (although a summons can be issued if the officer desires)
Assault and Battery
Destruction of Property (only at business property, not residential)
Carrying a Weapon on School Property
Brandishing a Firearm
Driving While Intoxicated
It is no wonder that confusion exists under this statutory scheme. That confusion led to the unlawful (but constitutionally valid) arrest of David Moore. Having to undergo the above determinations in the midst of the confusion that usually surrounds unlawful activity is unduly burdensome on law enforcement and likely to lead erroneous arrests such as in the Moore case. Exclusion of evidence is not the answer, so what is? Civil liability? The United States Supreme Court deftly forged clarity for all 50 States in the Moore opinion. The time has come for Virginia’s legislature to distill its statutory arrest scheme to similar clarity.
45 Va. App. 146, 609 S.E.2d 74 (2005) (panel decision).
 553 U.S. ___(2008).
 Moore v. Commonwealth, 45 Va. App. 146, 157 (2005)
 Virginia v. Moore, 553 U.S. ____ at ____ (2008).
 Interestingly, the Code of Virginia offers a solution in the form of §46.2-936, which allows for custodial arrests for §46.2-301 (driving on a suspended or revoked license) in jurisdictions where approval has been granted by order of the general district court.
 Virginia v. Moore, 553 U.S. ____ at ____ (2008).
 525 U.S. 11 (1998).
 414 U.S. 218 at 234-235 (1973).
 Moore, at ____(2008).
 i.d. at ____ (emphasis added).
 i.d. at ____.
 i.d. at ____ (quoting Whren v. United States, 517 U.s. 806, 815 (1996).
 22 Va. App. 646 (1996).
 Moore, at ____(2008).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.