SCOTUS cert grants: Is a violation of state law also a Fourth Amendment violation? and a generic consent case

The Supreme Court has granted cert in Virginia v. Moore (06-1082) on whether a violation of state law is a Fourth Amendment violation. This is an issue of first impression, and it involves tension between Knowles v. Iowa and Atwater v. City of Lago Vista (a particularly insideous and perplexing decision in itself).

Under Virginia law, driving on a suspended license is a class 1 misdemeanor, and the officers should have written a citation. Instead, Moore was arrested. After his arrest, he was Mirandized and a consent to search his hotel room was obtained.

The officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore.

Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 400 (2006).

See SCOTUSBlog with commentary and links to the petition and response.

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Cert was also granted in United States v. Rodriguez (06-1646) involving the Armed Career Criminal Act which has included in the cert grant a consent search issue of no real import. SCOTUSBlog did not feel like expounding, but the petition and response are there. The case below is United States v. Rodriguez, 464 F.3d 1072, 1077-78 (9th Cir. 2006):

Based on the totality of the circumstances and after considering the applicable factors, we conclude that Tammi voluntarily consented to the search. As to the first factor, the district court concluded, and Rodriquez conceded in his brief, that Tammi was not in custody when she consented to the search. Second, the court determined that there was no “indication that firearms were exhibited or drawn,” a conclusion with which Rodriquez also agreed. Third, because Tammi was not in custody, “Miranda warnings were inapposite …” Id. at 504 (citation omitted). Fourth, the court found, and Rodriquez acknowledged, that Tammi knew she had the right to refuse consent. “Knowledge of the right to refuse consent is highly relevant in determining whether a consent is valid.” Id. (alteration and citations omitted). Moreover, where, as here, “the officers themselves informed [Tammi] that she was free to withhold her consent,” “the probability that their conduct could reasonably have appeared to her to be coercive “is “substantially lessened.” United States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (emphasis added).

Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A “statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi’s] consent involuntary as a matter of law.” United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (citations omitted). Rather, application of this factor “hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner.” Soriano, 361 F.3d at 504 (citations omitted). “Even assuming, however, that [Deputy Thompson’s statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists, the weight of the fifth factor is significantly diminished.” Id. at 504-05 (citations omitted).

Probable cause to justify a warrant existed in this case. …