WASHINGTON
A seemingly routine traffic stop in Portsmouth five years ago has morphed into a major constitutional confrontation to be played out today in the nation’s highest court .
The case of David Lee Moore began with an offense so mundane that state law instructs police to hold most suspects only long enough to write a ticket. It could end with new limits on police tactics in pursuing more serious crimes or a redefinition of the Constitution’s protection against “unreasonable” searches.
The case has attracted the attention of the U.S. Justice Department and attorneys general in 18 states. All back Virginia’s claim that Portsmouth police acted properly when they arrested and searched Moore after pulling him over for driving with a suspended license.
The American Bar Association and the American Civil Liberties Union have come to Moore’s defense. Their briefs to the U.S. Supreme Court argue that the traffic stop was little more than a pretext for police to pursue suspicions that Moore was involved with illegal drugs.
The arrest on Feb. 20, 2003, was “just our prerogative,” one detective testified in a pretrial hearing. Officers handcuffed Moore rather than writing him a summons because “the investigation was not complete yet. We were … also conducting a narcotics investigation,” added the officer, Mark Anthony.
When Moore, then 32, emptied his pockets for them, authorities found 16 grams of crack cocaine and $516. The drug charge that followed – possession of cocaine with the intent to distribute – brought Moore a five-year prison term.
Moore, who also was sentenced to 90 days in jail on the original traffic charge, was released more than a year ago; his lawyers, hired by the Virginia appellate defender’s office, said they don’t know his current whereabouts.
His defenders acknowledge that Moore was carrying crack but say the drug conviction should be overturned because the police had no right to arrest and then search Moore – gaining the key evidence in his pocket – on the traffic charge. They cite a state law that explicitly bars arrests on such minor violations except in a handful of circumstances – none of which applied to Moore.
Evidence at Moore’s trial established that police knew Moore and believed he was involved with drugs, said Tom Goldstein, a Washington lawyer who will handle Moore’s Supreme Court argument.
“They were clearly looking for an excuse to search him,” Goldstein said .
“We don’t think the police are evil, but sometimes you get some who are overaggressive,” he added. If the Moore arrest and search are upheld, police will effectively gain the right to search anyone whose only “crime” is uttering a obscenity in public, jaywalking or driving one mph over the speed limit, Goldstein said.
“There are so many ways you can accidentally trip up,” he said.
A Virginia Supreme Court ruling in Moore’s favor has created a substantial obstacle for police, Portsmouth Commonwealth’s Attorney Earle Mobley said. When officers stop suspected drug dealers on driving, trespassing and other minor charges in drug-plagued neighborhoods, their ability to investigate for more serious offenses is limited, he said.
Jim Swan, president of the Portsmouth Fraternal Order of Police, said police have some leeway, however.
An officer may still make an arrest and conduct a search if he reasonably believes the suspect will resume his illegal activity once released, Swan said. That’s often the case when stops are made for violations such as driving with a suspended license, particularly when the suspect is traveling alone.
In other cases – for example, if the traffic stop is made in an area where the car can’t be parked – police may be able to put the driver under arrest and have the vehicle moved to an impound lot or other safe spot, Swan suggested.
Even with such options available, the state’s prosecutors have asked the General Assembly to give them additional flexibility. A bill introduced last week by Del. Jackson Miller, R-Manassas, would give police discretion to handle minor offenses by issuing tickets or making arrests.
In a brief asking the justices to overturn the state decision, Attorney General Bob McDonnell’s office conceded that the initial arrest of Moore violated current state law.
But the fact that the arrest was illegal doesn’t necessarily make the search that followed it unconstitutional or require the court to ignore the drugs that search uncovered, the state argued.
Regardless of state law, the Constitution permits an arrest whenever police have “probable cause” to believe a crime has been committed, David Clementson, a spokesman for McDonnell, said in a prepared statement. A long series of state and federal court decisions have established the right of police to search people properly placed under arrest, he added.
Goldstein countered that the state’s argument asks the Supreme Court “to approve things that are illegal” under state law. That’s “kind of frightening,” he said .
McDonnell’s decision to carry the case to the U.S. Supreme Court is in line with the tough-on-crime reputation he cultivated during 14 years representing Virginia Beach in the House of Delegates and campaigned on to win his current office in 2005.
However, the appeal also risks creating a precedent that police and prosecutors nationwide will find confining if the high court sides with Moore. Had McDonnell chosen to let the Virginia Supreme Court’s ruling stand unchallenged, the limits that ruling places on police would apply only in the Old Dominion.
Dale Eisman, (703) 913-9872, dale.eisman@pilotonline.com
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Police Abuses result in Decisions affecting all police actions
Every time the police act in an egregious manner, it results in a Supreme Court decision that hampers all police powers, i.e. Miranda vs. Arizona, Mapp vs. Ohio, et al, ad nauseum. This decision being taken to the Supreme Court is going to be upheld and will become the law of the land instead of just the law of Virginia. Way to go idiots! I don't care that I have nothing to hide, the police do NOT have the right to search me or my vehicle because they feel like it. This is NOT Iran and your police will NOT break the law to search my property in the hope of finding something to arrest me for. Not in this country!
voting over?
I wasn't given the option to vote, it just shows the results. I agree the question was written in such away to make people vote no. If the person is a known criminal and/or acting suspicious: really nervous (admittedly a lot of people get nervous when stopped), argumentative, if the officer sees drusg and or weapons, and/or appears to be hiding/disposing of something, yes the officer should be able to search them.
Can't See The Forest For the Trees
Everyone commenting so far has lost sight of the true problem: Expansion of police powers for unreasonable search and seizure. It doesn't matter if the person in question is "riff-raff" or a lowly drug dealer. This impacts ALL of our rights. Today a drug dealer, tomorrow an average citizen. Many I'm sure will hide their heads in the sand claiming they have nothing to hide but it's a short slippery slope.
In NO way should the police be allowed to use a traffic stop as a PRETEXT to conduct a fishing expedition. All of you who style themselves as conservatives seem to be perfectly willing to overlook the Fourth Amendment and the prohibition of unreasonable search and seizure. Those were protections given to the citizenry by our Founding Fathers who were well acquainted with abuses of government power. Protect your rights folks or lose them.
Curtis J
How else would you expect a Liberal newspaper to ask the survey question. The question should have been stated, If a person is stopped for any traffic violation and the officers suspects some foul play by the driver, does the officer have the right to inspect the car for evidence of foul play? YES should then be the overwhelming answer, but once again you see how the writer of the question feels about getting drug dealers and other rift-raft off the streets.
Let the ABC do it!
Back around eighty years ago, we had something called prohibition, where it was illegal to have liquor. Millions of dollars were spent chasing the crooks, who supplied what the people still wanted. Additional law enforcement resources did nothing to curtail the use of booze. That lasted for 13 years, until wiser people had the law abolished. Around the same time that booze was legalized, in the early 1930's, a big drive began to make certain drugs illegal. That expanded through the years, until around 1971, when President Nixon coined the term "the war on drugs", and created the DEA to fight this war. Today, after billions of dollars, millions of arrests, and countless killings, anyone can buy drugs who wants them. The whole thing is a farce. We should regulate drugs like we regulate hard liquor...under the Virginia ABC. Same rules, same regulations, same penalties. Druggies per se aren't criminals; they should get treatment, not prison. BTW, I don't use any drugs, but I do believe in the Libertarian principles of freedom and common sense.
It's the Constitution
that guides our conduct as a people, including the police. A law enforcement representative must present a justified reason (probable cause) to conduct a search, and that usually must be authorized by someone other than the cop, mostly a judge. If the common practice is to write a ticket for an offense, if there is no warrant, then arrest is illegal. McDonnel shows his true stripes as someone who ignores the Constitution for political expediency. Do we really want law enforcement deciding probable cause? If they had their choice your house would be subject to search 24/7.
What the heck...let drug dealers skate...
Portsmouth Police acted properly and they took a drug dealer off our streets. A drug dealer, people!!!! Someone who preys on others....oftentimes children....and is the root cause of all kinds of drug related crimes. The police are to be commended, not condemned, and this dirtbag and others like him need to be off our streets!
I agree
I didnt even answer the poll. Your so right it is worded wrong. If police know a person is a known drug dealer then YES they should be able to search them and their car. If it is a person they have never seen or heard of and has a valid drivers license then NO they should not.
Last time I checked....
....pre-textual traffic stops were completely legal and there's case law out there to back that up. The police needed a legal reason to stop and search the man without violating his rights against "unreasonable search and seizure" and Mr. Moore handed it to them on a silver platter by driving on a suspended license. How many times had he been charged and convicted of that before? If it was more than once the detectives could reasonably assume if they just wrote him a summons and let him go he would do it again. How many innocent people have been killed or maimed by persons that continued to drive after multiple convictions for Driving on a Suspended License? By taking the actions they did in this instance they accomplished 2 goals at one time- got someone off the roadway that wasn't supposed to be driving and TOOK ANOTHER DRUG DEALER OFF THE STREETS OF PORTSMOUTH! There is nothing "over aggressive" with what the detectives did, they did their job. Unfortunately, in today's bleeding heart liberal crybaby society, the criminals have organizations like the ACLU to come to their defense whenever someone does society a favor and someone else cries foul. I pray the U.S. Supreme Court see
Who Cares?
If your not doing anything wrong, why should you care if you get searched? Seems this case is going to provide additional protection to the scoff-law.
Poll Question
Don't you just love the way the poll question was asked. It's almost a sure best that people would say no.