US Supreme Court: Even More Moore

OK, while the rest of you have been obsessing on the federal supreme court accepting the lethal injection case, I noticed that a case which has been followed with some interest here has gained cert: Virginia v. Moore.

You'll recall that this is the case wherein the officers made an arrest which was not allowed under Virginia law and in the search subsequent found drugs. The trial court relied on Atwater and found that the arrest was illegal but not unconstitutional and therefore the search was constitutional. A three judge panel in the Virginia Court of Appeals overturned the trial judge relying on Knowles and saying that since there was no legally allowable arrest this was like a citation and therefore the search subsequent was unconstitutional. En banc, the Virginia Court of Appeals ruled that Atwater applied and the fact that the arrest was illegal but not unconstitutional meant that the search was constitutional. The Virginia Supreme Court took the appeal and ruled, 7-0, that the arrest was forbidden and the summons required was subject to the same rules as a citation per Knowles.

The federal supreme court accepted cert (06-1082).

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The difficulty here is that their is a continuum of activities which an officer can be allowed or required to do. As I see it, the continuum is something like this:

Citation - Required Summons - Discretionary Summons / Arrest - Required Arrest

Citations cannot give rise to a search incident. Arrests always give rise to the search incident. Summons aren't really a citation because the charge on the summons can lead to imprisonment (at least in Virginia). Summons aren't arrests because the officer does not take the offender into continuing custody (there is some custody in any involuntary police encounter - including those resolved with a citation).

I think I'm going to have to go back and reread the Virginia Supreme Court's decision in this matter. If the Va SCt found as a matter of State law that a summons under Virginia's statutory scheme is the same as a citation then cert may have been granted improvidently.

I'm reading the briefs for and against granting cert right now, so I hope to have more comment on this in the future - but probably not until after Monday because of a jury trial.