When the Supremes granted cert in Virginia v. Moore, we cringed.  Nothing good could come of this, was the overwhelming sense of the criminal defense bar.  After all, the Virginia Supreme Court had reversed the lower court and held that a cop who had unlawfully arrested Moore for driving with a suspended license (an offense in Virginia for which arrested are not permitted under state law) and then, in a search incident to arrest, found cocaine, violated the Constitution.  This was a good decision.  Cert did not bode well.

Then came  oral argument in the case, with the classic  “wow” exchange with Justice Scalia.  There was hope.  There was hope!

And then the world of the idealists came crashing down.  The cynics won again.  Unanimously reversed.

There’s already much discussion of Virginia v. Moore around the blawgosphere.  See Court-o-Rama, Robert Guest, Jon Katz,  Orin Kerr and, of course, Lyle at SCOTUSBlog. [Edit:  Add Howard Wasserman at  PrawfsBlawg to the list.]

Cutting to the chase, the decision of SCOTUS is that probable cause to search, not to mention the time honored search incident exception, trumps the fact that the police officer’s arrest is not authorized by state law.  While the officer’s conduct in arresting the defendant might subject him to some degree of discipline for the “infraction”, it does not extend as far as providing the defendant with the benefit of suppression, as long as there was probable cause under the 4th Amendment to search otherwise.

Even Justice Ginsburg went along with the result (though concurring to reject the originalist argument of Justice Scalia’s majority decision).

Moore would have us ignore, however, the limited consequences Virginia attaches to a police officer’s failure to follow the Commonwealth’s summons-only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons.

Given the decision of the Virginia Supreme Court, that suppression was indeed the consequence of the officer’s violation of Virginia state law, this is particularly curious.  On the other hand, given how the precedent of SCOTUS favors approving automobile searches, including pretextual, as long as they come up with some drugs, it’s not curious at all.

Here’s my problem, as plainly as I can write it.  The “authority” for a Virginia police officer to stop someone on the road derives from the law passed by the state.  Without it, he’s just another bandit on the highway with a gun.  The cop only has the power and authority that Virginia chooses to allow him.  There is no “inherent right,” as is so often claimed, to either create or ignore the law.  It is whatever the state tells them it is.  It’s their job to abide by it.  They get no choice in the matter.

When a police officer decides to do something beyond the scope of the law, meaning outside his authority, he is no longer cloaked in the power given him by his employer, the government that enables him to act on its behalf.  When he sheds that cloak of authority, he is a state actor engaging in unlawful conduct.  Unlawful conduct, no matter how one twists it, cannot enjoy the protection afforded lawful conduct.  If it does, then why would anyone in the employ of the state ever abide the law?  They become free-range cowboys, off to enforce their personal version of right and wrong with a state-purchased car and gun.

So once they act beyond the scope of their authority, rendering their actions outside the protection of the very law that allows them to act in the first instance, they are outlaws.  Their conduct cannot, by definition, be “reasonable” under the 4th Amendment because it is unreasonable for anyone to break the law and derive a benefit from doing so.

But the Supreme Court of the United States says I’m wrong.  What else is new?