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Greetings, Court fans!

After a busy week last week, the Court left us with just one decision and a couple of cert grants this week. Justice Scalia wrote for a nearly unanimous Court in Virginia v. Moore (06-1082), where it held that a search incident to an arrest that was unlawful under state law did not violate the Fourth Amendment. Moore was arrested for driving under a suspended license. Under Virginia law, Moore should have been issued a citation for this misdemeanor – but arrested he was, and a search incident to the arrest found drugs . . . which led to Moore’s prosecution for possession with intent to distribute. Seeking to exclude the drug evidence, Moore argued that the search violated the Fourth Amendment, which does not permit searches incident to citation (what should have happened to Moore under Virginia law). The Virginia Supreme Court agreed with Moore, but the Court reversed, setting forth a black-and-white rule for assessing warrantless arrests and the resulting searches.

In short, a warrantless arrest is reasonable and lawful under the Fourth Amendment if the officer has probable cause to believe that a crime has been committed, regardless of the severity of the crime. So Moore’s arrest did not violate the Fourth Amendment, regardless of its status under Virginia law. A state may choose to set a higher bar for arrests – as Virginia did here – but this is a matter of state law, and state law (not the federal Constitution) sets the penalties for violating those requirements. Virginia chose not to authorize arrests for driving under a suspended license, but also chose not to require exclusion of evidence seized in violation of that rule. Virginia was free to adopt that path without being hamstrung by the Fourth Amendment’s exclusionary rule. As to the legality of the search, the Court held that a search incident to an arrest that is lawful under the Fourth Amendment is always constitutionally permissible because of an officer’s interests in ensuring his safety and securing evidence. Because Moore’s arrest did not violate the Fourth Amendment, neither did the search. End of story. Justice Ginsburg concurred in the judgment. She did not agree with the Court’s historical analysis (which we have spared you) of the interplay between the Fourth Amendment and statutory requirements. However, she agreed that Virginia had the right to adopt more stringent rules for arrests than those imposed by the Constitution, but also to elect remedies other than exclusion of evidence for those rules and thus, joined in the judgment.

The Court granted cert to deal with two new issues. In Chambers v. United States (06-11206), the Court will yet again hear a case under the Armed Career Criminal Act (“ACCA”), this time asking “[w]hether a defendant’s failure to report for confinement ‘involves conduct that presents a serious potential risk of physical injury to another’ such that a conviction for escape based on that failure to report is a ‘violent felony’ within the meaning of [ACCA]?”

The consolidated cases of United States v. Eurodif S.A. (07-1059) and USEC Inc. v. Eurodif S.A. (07-1078) deal with the Commerce Department’s authority, under 19 U.S.C. § 1673, to impose duties on foreign goods sold in the United States at less than fair market value. The Court will decide whether the Department has authority under Section 1673 to impose these “anti-dumping” duties where a U.S. purchaser provides raw materials and monetary payments to a foreign manufacturer who then performs a manufacturing process that adds substantial value to the merchandise.

We expect to be back next week with more decisions to report. Until then, enjoy the spring weather!

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400