By Elliot B. Spector, Attorney at Law; and Associate Professor, University of Connecticut, Storrs, Connecticut
lmost every state limits police authority to arrest, especially without warrants&emdash;even when the officers have probable cause. Some of these statutory limitations are complicated, allowing arrests at certain times, with various jurisdictional limitations, and for particular crimes, and many of the statutes are peppered with a number of exceptions. Police academies spend appreciable time ensuring that their officers understand these statutory restrictions and place great import on compliance with such statutes. It seems that in Virginia v. Moore, the U.S. Supreme Court has done a great favor to law enforcement officers and administrators in eliminating many of the concerns about violations of state statute arrest procedural rules.1
Reasonable Suspicion in Moore
David Lee Moore was stopped by two officers with reasonable suspicion that he was driving with a suspended license. Upon confirming that his license was suspended, the officers made a custodial arrest and conducted a delayed search incident to arrest, finding 16 grams of crack cocaine and $516 in cash. Moore was found guilty on the drug charge and sentenced to a term of imprisonment of five years, with 18 months of the sentence suspended. Under state law, the officers should have only issued Moore a summons for driving with a suspended license, as it is not an arrestable offense, except for some specific circumstances that did not apply in this case.
The Supreme Court found that the violation of the state procedural arrest rule did not make the arrest unreasonable under the Fourth Amendment. The Court found no early Fourth Amendment cases basing a constitutional claim on a violation of state or federal statute concerning arrest. Failing to find any historical basis to support the defendant’s claims, the Court analyzed the search and seizure issue in light of traditional standards of reasonableness. Citing a long line of cases, the Court stated that “when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interest is not in doubt. The arrest is constitutionally reasonable.”2
The Court concluded, “[W]hen officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and to ensure their own safety.”3
The clear benefit to law enforcement officers from this ruling is that if they violate state procedural arrest rules but have probable cause, the arrest will be lawful, evidence seized will be admissible, and there will be no liability under the Fourth Amendment.
Significance of State Statutes
Discounting the significance of state statutes has been the rule in federal courts when evaluating liability under 42 U.S.C. Section 1983. For example, in Hopper v. Rinaldi, the plaintiff alleged an unlawful arrest because it was made outside the officers’ geographic boundary. The court rejected the plaintiff’s claim, stating, “The federal courts consistently held that an arrest performed by police officers outside the officers’ jurisdiction, especially in exigent circumstances, cannot amount to a claim of constitutional magnitude.” The court then cited cases from the 6th, 7th, 8th, and 10th Circuit Courts finding that violations of state law do not amount to violations of the Fourth Amendment.4
In Herrera v. City of Brunswick, the plaintiff claimed her custodial arrest and the subsequent search were unlawful because under state statute the officer should have issued her a summons. The court noted, “It is well established that a ‘mere violation of state statute does not infringe the Federal Constitution.’ Snowden v. Hughes, 321 U.S. 1, 11 (1944). Similarly, the mere fact that an arrest was done in violation of police procedures can not, without more, establish a constitutional violation.”5
Simply put, if an officer makes an arrest in violation of a state procedural rule, the arrest will be constitutional; evidence seized will be admissible under the Fourth Amendment; and the arresting officers will not be held liable under Section 1983, as long as they had probable cause to make the arrest. However, there are multiple unanswered questions under state law. Will evidence be suppressed under state law? Can officers be held liable pursuant to state constitutional provisions? Will cases be successfully prosecuted if officers violate their state statutes? Finally, as Justice Ginsburg noted in her concurring opinion, an officer may be disciplined and the person arrested may bring a tort suit against the officer.6
In conclusion, Moore does not provide officers with a carte blanche to ignore state procedural rules, and officers should always attempt to conform with statutes; however, the case does significantly diminish the potential effect of such violations. The case also does not bring most states within the realm of brilliantly simplistic state statutes such as that found in Hawaii Revised Statutes Section 803-5—which authorizes officers anywhere in the state to make an arrest when they have probable cause to believe an offense occurred—but it significantly removes the risk of mistaken procedural violations.7
The Supreme Court’s ruling should allow for the exercise of greater discretion among officers when they have to balance the potential risk of a state statutory violation against the interests of society. For example, let us assume that a state statute prohibits a warrantless misdemeanor arrest for an offense not witnessed by officers or outside their municipalities. Further assume that officers find a husband outside their jurisdiction who several hours earlier had assaulted his wife. The officers know they are not authorized to make the arrest, but they do not want to risk allowing the offender to remain free, at the risk that he might return home and again assault his wife. Such an arrest would be lawful under the U.S. Constitution, and any evidence found subsequent to the arrest would be admissible under the Fourth Amendment. Knowing that they cannot be held liable under Section 1983, the officers might be more willing to take the minimal risk of facing some state tort claim to protect the potential victim.
Chiefs and other law enforcement leaders should get answers to the following questions to determine if there are any potential negative consequences in making an arrest in violation of state statute.
- Will the arrest be prosecuted if we have probable cause?
- Will evidence seized be admissible under state law?
- Is such an arrest a violation of our state constitution?
- Can we be sued for a state constitutional violation or some other state tort?
- Are there immunities available for such claims?
- Can plaintiff attorneys recover fees for state lawsuits?
Officers should never intentionally ignore state statutes; however, understanding the negative ramifications of such mistakes will reduce the fear of acting when the countervailing interest is the protection of the public. ■
1Virginia v. Moore, 128 S.Ct. 1598 (2008).
2Id. at 1604.
3Id. at 1608.
4Hopper v. Rinaldi, 2008 WL 559049 (D.N.J.).
5Herrera v. City of Brunswick, 2008 WL 305275.
6Moore, 128 S.Ct. at 1609.
7The IACP Model Statutes Project, prepared by the Legal Officers Section, provides sample legislative language on issues important to the law enforcement community. See http://www.theiacp.org/documents/pdfs/Publications/2002modelstatutes.pdf for examples.