Later this month, the Supreme Court will hear oral argument in the case of Virginia v. Moore, about Tom Goldstein has this post with links to the briefs of the Commonwealth and the respondent. The brief for the U.S. is here, the brief for the ABA is here, the brief for the VTLA is here.
In this case, the defendant Moore was arrested, instead of being given a summons, under circumstances where Virginia law requires that he be given a summons, and so the issue is whether for purposes of the Fourth Amendment the search incident to his unlawful but not unconstitutional arrest was unreasonable and the evidence obtained subject to exclusion.
The en banc Virginia Court of Appeals by 7-4 vote said the evidence was in, the Virginia Supreme Court said it was out.
It is an interesting area, the relationship between the guarantees of the Bill of Rights and state law. We know that in the area of property rights, state law defines whose property is whose, but federal law defines what process is due in connection with deprivations of property. State law defines what the crimes are, but federal law defines what is an unreasonable seizure in connection with persons suspected of committing state law crimes. Doesn't it?
Suppose the General Assembly takes an interest in this case and decides to amend the arrest statute, so it allows an arrest instead of a summons whenever there has been a misdemeanor committed in the officer's presence and he feels like conducting a search. Can constitutional rights be altered in so crude a fashion? I wonder.