U.S. Supreme Court hears arguments on searching Portsmouth suspect after traffic stop

WASHINGTON

Even when state law doesn't permit them to make an arrest, the Constitution allows police to hold and search someone suspected of a minor offense, lawyers for Virginia and the federal government argued Monday in a Portsmouth case that has made its way to the U.S. Supreme Court.

"A violation of state law does not equate to a violation of the Constitution," said Michael Dreeben, the Justice Department's deputy solicitor general.

Dreeben and Stephen McCullough, Virginia's deputy solicitor general, urged the justices to reinstate the drug conviction of David Lee Moore, who Portsmouth police found was carrying 16 grams of crack cocaine when they pulled him over for driving on a suspended license in February 2003.

The Virginia Supreme Court threw out the drug case in 2006, ruling that because Virginia law explicitly bars arrests in most cases for that offense, police had no authority to search him and find the cocaine.

The case, which is likely to be decided by summer, raises questions about the relationship between state laws and the federal Constitution as well as the limits of the Constitution's protection against "unreasonable" searches by police or other government agencies. Police and prosecutors argue that a ruling in Moore's favor will make it more difficult for them to obtain evidence of serious crimes.

Tom Goldstein, a Washington lawyer who argued on Moore's behalf Monday, said police pulled his client over on the traffic charge as a pretext for a search of both Moore and his hotel room; officers testified that they suspected that Moore was involved with illegal drugs.

Goldstein told the justices that a ruling against Moore would encourage police to make illegal arrests on a range of trivial offenses for no other reason than that it would allow them to search for evidence of other, more serious crimes.

Goldstein told reporters after Monday's court session that Virginia is among a number of states to bar or limit arrests for such minor violations of state law. The laws are an attempt by legislators to direct police attention and resources to more serious crimes, he suggested.

But McCullough and Dreeben said that, regardless of state laws, the Constitution and a long line of court decisions interpreting it permit police to conduct a search and make use of evidence it produces when they have probable cause to believe any crime has been committed.

Both sides in the hourlong argument were peppered with questions from the justices.

At one point, McCullough conceded to Justice Ruth Bader Ginsberg that the drug evidence against Moore could not have been used in court had police simply written Moore a ticket on the traffic charge, as state law directs.

Then Ginsberg pounced. "Would you explain the logic of saying that when the police violate state law, then the evidence can come in, but when they comply with state law, it can't?" she asked.

McCullough answered that the Portsmouth officers who searched Moore could have been sued by him for trespassing or disciplined by the police department.

"State law provides remedies," he told reporters later. "It's just that the remedy isn't to let the guilty go free just because the constable blundered."

Justice Stephen Breyer meanwhile, focused on portions of the state law that allow searches in some cases but ban them in others, even though the crime involved is the same.

Breyer said there would be no question about the propriety of the search if police had determined that Moore was a threat to others or was likely to continue driving illegally once released. Goldstein acknowledged that was correct.

Moore completed his jail terms - five years on the drug charge and 90 days on the traffic count - in 2006. He was not present for Monday's proceedings. His lawyers said they are not in contact with him.

Dale Eisman, (703) 913-9872, dale.eisman@pilotonline.com