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Floor or Ceiling?

The Supreme Court recently heard oral argument in a case that sits at the intersection of federalism and the search and seizure jurisprudence. The question is: what happens if a state law gives criminal suspects more privacy rights than those guaranteed under the 4th Amendment? Here are the facts of the case:

In this case, the police in Virginia arrested a man for driving with a suspended license. Under Virginia law, that offense is a misdemeanor that does not justify an arrest, except in unusual circumstances. Ordinarily, the police are limited to issuing a summons and a notice to appear in court.

Nonetheless, the police took the man, David L. Moore, into custody and in the search that followed found 16 grams of crack cocaine (about a half ounce) and $516 in cash. Mr. Moore was convicted of the drug offense and sentenced to five years in prison. The Virginia Supreme Court dismissed all charges, ruling that because the arrest was unlawful, so was the search.

But, under the U.S. Supreme Court's precedent, searches that are "incident to a lawful arrest" are valid. Thus, the question is: was the arrest lawful? Under Virginia law, it was not.

The 4th Amendment tells a different story. Arrests can be made if there is probable cause that a crime took place. In this case, there is general agreement that there was probable cause, so as far as a federal court is concerned, the arrest was lawful.

AARRGH! This is one of the messy problems with the doctrine of incorporation, a series of Supreme Courts decisions that ruled that the Bill of Rights applies to state governments as well as to the feds. In particular, Mapp v. Ohio held that the exclusionary rule (evidence seized from an unlawful search cannot be entered into evidence) applies to the states.

The rationale behind the incorporation doctrine was to apply basic individual rights to state policy because the states must provide due process under the 14th Amendment. And the rights protected under the Bill of Rights are examples of due process obligations state have to their citizens. In other words, the purpose of the incorporation doctrine is to expand rights, not to contract them.

My position is that since these were state charges in a state court, the Court should respect the relevant state law surrounding the arrest, unless the state law does not uphold the minimum standards set forth in the 4th Amendment. If a state goes further than the Bill of Rights, they should be allowed to do because of the basic tenets of federalism.

For example, many state constitutions go further than the 1st Amendment in enforcing a separation of church and state. The Constitution of the State of Washington mandates that no public monies be used for the training of priests. Because of that constitutional principle, the legislature put a restriction on a recent publicly-funded college scholarship program: you could not use state money to get a theology degree.

The United States Supreme Court, in Locke v. Davey, found that there was not a violation of the Free Exercise Clause posed by this structure of the scholarship program. Even if there was a threat to Free Exercise, Washington had a "substantial state interest" in not funding "devotional degrees" based on the principles of federalism.

It would have been silly for the Supreme Court to substitute a more minimal 1st Amendment Establishment Clause standard for the standard the state had set for itself (through the democratic process, I might add). The same logic should apply here.

And I think the Supreme Court is likely to agree. Check out this exchange with Justice Scalia. It demonstrates the sweeping nature of the opposing position:

Justice Antonin Scalia asked whether, as a Supreme Court justice, he could search a neighbor?s house on suspicion that marijuana was being grown there. Yes, if the justice, as a federal employee acting on behalf of the government, had probable cause, [Virginia prosecutor] Mr. McCullough said. How about a ?federally employed janitor?? Justice Scalia asked. ?His neighbor is growing marijuana, and he?s just as offended as a Supreme Court justice would be. Can he conduct a search?? The lawyer replied, ?I think if he?s doing it on behalf of the state, the answer is yes.? Justice Scalia said, ?Wow.?

Wow, indeed. N.B. This is one of the very few times I ever agree with Justice Scalia. I wonder if there will be a blue moon tonight.

Full post as published by Supreme Dicta on January 15, 2008 (boomark / email).