On Wednesday, April 23, 2008, the United States Supreme Court in Virginia v. Moore (06-1082) unanimously reversed the Supreme Court of Virginia, which held that the Fourth Amendment’s prohibition on unreasonable searches and seizures warranted suppression of evidence seized as the result of a search incident to arrest where the police officer did not have the authority to arrest for a misdemeanor under state law.

In Moore, during a traffic stop a police officer determined that the driver was operating his vehicle with a suspended license. The officer arrested Moore for the violation, which was a misdemeanor in Virginia, punishable under Virginia law by a year in jail and $2,500 fine. However, under Virginia law, the officer was supposed to issue Moore a summons, and not arrest Moore, because that offense was not an offense for which an arrest was authorized under the circumstances. The police officer should have only issued a ticket according to Virginia law.

The majority opinion, written by Justice Scalia, concludes that neither the history of the prohibition of unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution, nor tradition require a finding of a search and seizure violation. Justice Scalia’s opinion notes 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 interests is not in doubt . . . [t]he arrest is consitutionally reasonable.” The opinion reiterated that the safeguards afforded by the Fourth Amendment are not determined by state law. Also, it noted that states are permitted to provide more protections against unreasonable searches and seizures, but that does not change Fourth Amendment analysis.

Here, although the arrest was not authorized by state law for the particular offense, the arrest was based on probable cause. The majority held that while Virginia could have authorized an arrest for the offense but did not, the fact that the arrest was not authorized does not make it an unreasonable seizure under the Fourth Amendment.

You can read Virginia v. Moore by clicking here. The majority’s holding in this case permits a search incident to an unauthorized arrest. That is, where a police officer does not have the authority to arrest for offenses in his or her presence under state law, for relatively minor offenses for instance, contraband found as the result of a search incident to an arrest is not a violation for purposes of the Fourth Amendment. However, many states afford more protection under their individual constitutions.

In Pennsylvania, if an arrest is not authorized for a particular offense, any evidence seized as a result of a search incident to that arrest may be suppressed. See Commonwealth v. Bullers, 637 A.2d 1326 (Pa. 1994). Thus, in Pennsylvania, defendants and defense lawyers must be aware of a police officer’s authority to arrest when contraband is found after the arrest pursuant to a search.