Editorial: Federal remedy for a state issue

The U.S. Supreme Court's unanimous decision recently in Virginia v. Moore, allowing police to search a suspect even though arresting him was illegal under state law, at first looked like a simple case of expanding what we have called the drug law exception to the Fourth Amendment. It is certainly true that the high court has systematically narrowed that amendment's protection against "unreasonable search and seizure" to justify convictions under drug laws. But this case is a little more arcane, and ultimately, rightly decided from a freedom point of view.

David Moore was stopped in Portsmouth, Va., after officers in a patrol car thought they recognized him as somebody whose driver's license had been suspended. Virginia law authorizes issuing a citation and a summons for that offense, not arresting people. But the officers arrested him anyway, which was illegal under state law. When they took him back to his hotel room and searched him in the course of making the arrest, they found cocaine and $512 in cash, and charged him for possession with intent to distribute. He was convicted on that charge.

He appealed in state court, and here's where it gets convoluted. State law did not provide the remedy of exclusion of evidence to deter officers from making that kind of illegal arrest. But the Virginia Supreme Court reversed his conviction on the grounds that under the Fourth Amendment to the U.S. Constitution, the evidence should have been excluded from consideration and the cocaine charge dismissed. The state of Virginia itself appealed that decision to the U.S. Supreme Court, which took it because lower courts had been divided on the issue.

The high court decided that while the arrest may have violated Virginia state law, it did not violate the U.S. Constitution, which does not forbid arresting a person and then searching him or her for violating a law in the presence of police officer. You can argue that Virginia should have had a stronger remedy in the case of officers who make an arrest that is illegal under state law that is stricter than federal law, but it didn't.

Justice Antonin Scalia's opinion noted that different states have different laws and rules regarding arrests and privacy rights, and that if you invoked the Fourth Amendment to enforce them all, you could theoretically have 50 different interpretations. The whole purpose of a national constitution is to have uniform standards rather than protections that "vary from place to place and from time to time."

As Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute put it to us, "Mr. Moore sought a federal remedy for a constitutional wrong - but there was no constitutional wrong."

We reluctantly agree. The search of Moore in the course of an illegal arrest seems wrong on its face, but the arrest was illegal under Virginia rather than federal law, and it is up to Virginia to provide mechanisms to enforce its law. Those mechanisms strike us as wholly inadequate, but that doesn't make it a federal case.