01 December 2005

More Moore

Rick, whose letter I talked about in this week's LexCast, follows up with a further inquiry:
An avenue to explore with the facts in Moore might be a due process violation. I am loathe to argue substantive due process, but this strikes me, arguably, as a PROCEDURAL due process claim: if Virginia wishes to authorize warrantless arrests for misdemeanors, they may, without offending the federal constitution. But since Virginia explicitly prohibits such arrests, the Commonwealth creates a procedural due process right which is enforceable under the federal constitution.

Probably wasn't argued below, so even if the idea has legs, it's likely waived now anyway. But what do you think, theoretically?
It's an interesting thought but I haven't the time to explore it at the moment so I'll leave it to ya'll to comment upon (while I'm spending the day driving to Kentucky).

2 comments:

Sandy said...

Interesting Lexcast. After listening to it, I decided to read the Moore case you refer to and it seems to me that the analysis (whether you like it or not) was pretty simple.

You didn't discuss the nuances of the exclusionary rule in your Lexcast but if I remember correctly, going all the way back to Weeks v. U.S and Silverthorne Lumber v. U.S., the Supreme Court of the United States has always said that the exclusionary rule is to be applied very sparingly and only for constitutional violations (and not always even for those). The states have always free to set their own rules and provide their own sanctions for their violation which was apparently not done in this case.

Atwater v. City of Lago Vista says that the constitution is not offended as long is there is probable cause that a crime is being committed. In Moore, there was probable cause that a crime was being committed but a state statute apparently says that you cannot be arrested for that particular crime. I don't think the Supreme Court or any court has found a federal constitutional violation in the failure to follow a state statute involving conduct that was otherwise constitutional. If I read the opinion correctly, the majority opinion seems to be hinting that the legislature, which prohibited the arrest but provided no sanction for doing so, could amend the staute to provide that evidence be excluded under state law if that is the remedy they want.

I don't see why every statutory violation has to become a trampling of constitutional rights. The right to be free from arrest here was purely a statutory creature and you seem to be mixing apples and oranges where, I believe, the Supreme Court has been very careful to keep them seperate.

Rick said...

Sandy said: If I read the opinion correctly, the majority opinion seems to be hinting that the legislature, which prohibited the arrest but provided no sanction for doing so, could amend the staute to provide that evidence be excluded under state law if that is the remedy they want.

Yes, Sandy, that's true.

The Supreme Court faced a similar condundrum back in 1914, when it considered Weeks v. United States. Then, as now, there was no exclusionary remedy in place by statute OR constitutional law. The Fourth Amendment simply didn't provide for exclusion as a remedy. As Ken's apt phraseology put it, it was a right without a remedy.

Of course, as we all know, Weeks was the seminal case for creating an excusionary rule when violence was done to Fourth Amendment rights. And eventually (somewhat tardily, in my view) Mapp extended that right to state prosecutions.

What, Sandy, is the principled distinction here between the logic used in Weeks and this case? In both circumstances, the courts were faced with a legal right that was violated. The Court in Weeks created a prophylactic rule to ensure that the government was highly motivated to avoid future enfringement of that right. What's the reason to suggest that a similar remedy is inappropriate here?