{"id":4036,"date":"2010-05-18T23:22:32","date_gmt":"2010-04-06T07:00:28","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-06T07:00:28","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4036","title":{"rendered":"CA8: Open container violation supports arrest under Fourth Amendment, even if not under state law"},"content":{"rendered":"

Arrest for an infraction of driving with an open container did not offend the Fourth Amendment, despite state law, applying Virginia v. Moore<\/a>. United States v. Burtton<\/a>, 599 F.3d 823 (8th Cir. 2010):<\/p>\n

Here, Burtton’s violation of the open container law constituted an “infraction,” not a misdemeanor. Therefore, the question is whether the commission of an “infraction” in the presence of officers supplied the officers with probable cause to arrest Burtton under the Fourth Amendment. “In a long line of cases, [the Supreme Court has] said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore<\/a>, 553 U.S. 164, 128 S. Ct. 1598, 1604, 170 L. Ed. 2d 559 (2008) (emphasis added) (citing Atwater v. City of Lago Vista<\/a>, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001); Devenpeck v. Alford<\/a>, 543 U.S. 146, 152, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004); Gerstein v. Pugh<\/a>, 420 U.S. 103, 111, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); Brinegar v. United States<\/a>, 338 U.S. 160, 164, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)).<\/p>\n

. . .<\/p>\n

In light of Moore, “if an arrest is otherwise reasonable, the fact that it is not for an ‘arrestable’ offense does not make it unconstitutional.” Thomas v. City of Peoria<\/a>, 580 F.3d 633, 637 (7th Cir. 2009) (citing Moore, 128 S. Ct. at 1606-07). “[T]he Fourth Amendment does not forbid an arrest for a ‘nonjailable’ offense.” Id. at 638 (rejecting argument of arrestee, who was stopped by a city police officer for a traffic violation and arrested after the officer mistakenly identified him as an individual who had nine unpaid parking tickets and a warrant for his arrest, that the city had an unconstitutional policy of arresting people for not paying their parking tickets).<\/p>\n

Applying the rationale of Moore, Bell, and Rose, Burtton unquestionably committed a “minor crime”–violation of an open container law–in the presence of Officer Maloney when he was holding a 12-ounce plastic cup suspected of containing an alcoholic beverage in close proximity to a liquor bottle on the floor near Burtton. As a result, Officer Maloney had probable cause under the Fourth Amendment to arrest Burtton and conduct a search incident to arrest. See United States v. Pratt<\/a>, 355 F.3d 1119, 1121 (8th Cir. 2004) (“[I]f an officer has arrested the individual, the officer may search the individual’s person incident to that arrest and may reach into his pockets.”). Therefore, no redaction of evidence is required from the affidavit tendered in support of the search warrant application, and Burtton’s Mirandized statement at the police station, admitting that there was marijuana residue at his home, is not the fruit of an illegal search.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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