Fourth Amendment Protection
Disappears if Police Have Probable Cause

The Supreme Court of the United States (“SCOTUS”) decided Virginia v. Moore on April 23, 2008.

The Ruling: If law enforcement sees you commit a crime – any crime – even if it only calls for a citation or summons under state law, you may no longer be protected from search and seizure under the Fourth Amendment[1] to the U.S. Constitution. You can be summarily arrested and searched. Hello, loiterers and other mundane miscreants:  THIS IS ABOUT YOU !

The Facts:    Moore was stopped in the City of Portsmouth, Virginia in 2003 for driving on a suspended license.  Under Virginia state law, he was supposed to receive a summons, but the police made a mistake and arrested him. Then, the police took him to his hotel room and he gave consent for them to search it.  At that point, the police realized they had not searched him because each of them thought the other had done it; so they searched him and found 16 grams of crack and $516.00. Moore was convicted of possession of cocaine with intent to distribute, and sentenced to 5 years with 3½ to serve.

The Issue: Do police violate the Fourth Amendment to the U.S. Constitution when they see a crime (meaning they have probable cause) and arrest and search the person, but the arrest is illegal under state law?

Discussion: This was a 9-0 ruling, with Justice Scalia delivering the opinion for eight Justices, and Justice Ginsburg concurring. 

Their formula is simple enough — if probable cause exists under the Federal standard, then law enforcement can ignore state law and immediately arrest an individual and search them.

Why?  Because ruling otherwise would constrain Federal law applying the Fourth Amendment, making enforcement different in each state (and maybe even from county to county). It would be too complicated to untangle a varying the impact of Federal and state rights upon each other in every situation.

So, look around next time you are thinking of pitching a cigarette butt or jaywalking. If the police see the smallest offense, you may have just lost your Fourth Amendment rights.


[1] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amd., U.S. Constitution.