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.
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