John Mumma

October, 2008

I’m pleased to announce that I am succeeding Director Jack Cota as your Legal Chairman at the League. I extend my congratulations to Jack on his retirement and for a job well done these past two years, and I look forward to serving you in that capacity.

Along legal lines, a case was recently brought to my attention that should be of interest to you. On April 23, 2008, the United States Supreme Court ruled 15-0 in Moore v. Virginia, 128 S. Ct. 1598 (2008), that as long as police have probable cause to believe that a person committed a crime in their presence, the police may constitutionally search and arrest that individual even if the arrest violates state law. For you lawyers out there, this overrules a 15-year precedent of our own Ninth Circuit Court of Appeals in United States v. Mata, 982 F.2d 1384. This would be the court that, by the time you read this, will probably have ruled on the League’s challenge to the Financial Disclosure aspect of the Consent Decree …

Michael J. Raphael, Chief of the Criminal Appeals Section of the United States Attorney’s Office in the Central District of California, discusses this in an article published July 21, 2008 in the Los Angeles Daily Journal:

In Moore, David Lee Moore had been stopped in his car by police officers in Virginia, who had a tip that he was driving with a suspended license. They arrested Moore, and, in a search subsequent to the arrest, found that he was carrying 16 grams of crack cocaine. This seizure led to Moore’s drug conviction and a five-year sentence.

The problem was that the officers violated Virginia law when they arrested Moore. Under that state’s law, driving with a suspended license, like most misdemeanors, is not an arrestable offense (except in certain circumstances, such as where the driver is likely to cause harm). The officers should have issued Moore a citation and summons instead of arresting him. Had they followed state law, they would not have performed a search incident to arrest and would not have found the drugs.

The Virginia Supreme Court overturned Moore’s conviction on Fourth Amendment grounds. Because the arrest was illegal, that court reasoned, the search incident to arrest was improper. And because the Fourth Amendment does not allow for a search incident to a citation, the search violated the Fourth Amendment.

A unanimous Supreme Court reversed the Virginia determination. The Fourth Amendment, the court held, allows for an arrest whenever an officer has probable cause to believe a crime occurred in his presence, even if the crime is minor. The court reasoned that this constitutional rule should not change just because a state provides additional restrictions on the arrest power. The court explained that an arrest serves important interests, the constitutional rule should be a bright-line one, and Fourth Amendment protections should not vary from state to state. With a constitutionally valid arrest, the search incident to the arrest also was permissible.

In Mata, the Ninth Circuit had held the opposite. Juan and Francisco Mata had been operating a food cart in Santa Ana, Calif. After determining that the Matas lacked a business license, officers arrested the brothers and, in a search incident to the arrest, found 41 counterfeit $20 bills in their pockets. This led to a federal prosecution for possession of counterfeit notes.

As with Virginia law in Moore, California Penal Code 853.5 did not permit an arrest for the business-license infraction in Mata. The Ninth Circuit concluded that because the arrest was impermissible under state law, it was unreasonable, and therefore unlawful, under the Fourth Amendment. Consequently, the circuit reversed the Matas’ convictions, holding that the search incident to arrest was unlawful and the counterfeit bills should have been suppressed.

Through February of this year, the Ninth Circuit had continued to rule on Mata-based challenges to searches that were arguably improper under state law. See United States v. Jennings, 515 F.3d 980, 985 (Ninth Cir. 2008); United States v. Lopez, 482 F.3d 1067, 1077 n.10 (Ninth Cir. 2007). It has occasionally reversed a conviction on the basis of Mata. See United States v. Campos, 105 Fed. Appx. 184 (Ninth Cir. 2004). And it has applied Mata in the context of Section 1983 lawsuits against police officers for violations of constitutional rights. Bingham v. City of Manhattan Beach, 341 F.3d 939, 950 (Ninth Cir. 2003).

The Ninth Circuit’s law was not followed elsewhere. It has been the only federal circuit with such a rule, and nearly every state’s law was to the contrary as well. Several years ago, the California Supreme Court expressly rejected Mata’s Fourth Amendment interpretation. See People v. McKay, 117 Cal.Fourth 601 (2002).

After Moore, Mata is no longer good law, though the Ninth Circuit has yet to recognize as much, having not yet cited Mata since the Supreme Court issued its Moore opinion.

Supreme Court opinions often identify when the court is resolving a “circuit split,” but the court’s opinion in Moore nowhere indicated that along with reversing the Virginia Supreme Court, it also was overturning a Ninth Circuit constitutional rule. Most of the time, when the Supreme Court overrules a circuit’s interpretation of a constitutional provision, it is significant enough to make headlines – at least in the legal press read by judges and practitioners. It is unusual that a circuit’s constitutional precedent is overruled by the Supreme Court without either the court or commentators noticing. But because the Moore court did not mention Mata or the Ninth Circuit, this precedent disappeared without even a whimper.

["9th Circuit Should Acknowledge New Police Search Precedent," by Michael Raphael. Reprinted with the permission of Daily Journal Corp. (2008).]v