VIRGINIA v. MOORE

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Syllabus
VIRGINIA v. MOORE
certiorari to the supreme court of virginia
No. 06–1082. Argued January 14, 2008—Decided April 23, 2008
Rather than issuing the summons required by Virginia law, police arrested
respondent Moore for the misdemeanor of driving on a suspended li
cense. A search incident to the arrest yielded crack cocaine, and Moore
was tried on drug charges. The trial court declined to suppress the
evidence on Fourth Amendment grounds. Moore was convicted. Ulti
mately, the Virginia Supreme Court reversed, reasoning that the search
violated the Fourth Amendment because the arresting officers should
have issued a citation under state law, and the Fourth Amendment does
not permit search incident to citation.
Held: The police did not violate the Fourth Amendment when they made
an arrest that was based on probable cause but prohibited by state law,
or when they performed a search incident to the arrest. Pp. 168–178.
(a) Because the founding era’s statutes and common law do not sup
port Moore’s view that the Fourth Amendment was intended to incorpo
rate statutes, this is “not a case in which the claimant can point to ‘a
clear answer [that] existed in 1791 and has been generally adhered to
by the traditions of our society ever since,’ ” Atwater v. Lago Vista, 532
U. S. 318, 345. Pp. 168–171.
(b) Where history provides no conclusive answer, this Court has ana
lyzed a search or seizure in light of traditional reasonableness standards
“by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests.” Wyoming v.
Houghton, 526 U. S. 295, 300. Applying that methodology, this Court
has held that when an officer has probable cause to believe a person
committed even a minor crime, the arrest is constitutionally reasonable.
Atwater, supra, at 354. This Court’s decisions counsel against changing
the calculus when a State chooses to protect privacy beyond the level
required by the Fourth Amendment. See, e. g., Whren v. United States,
517 U. S. 806. United States v. Di Re, 332 U. S. 581, distinguished.
Pp. 171–173.
(c) The Court adheres to this approach because an arrest based on
probable cause serves interests that justify seizure. Arrest ensures
that a suspect appears to answer charges and does not continue a crime,

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Syllabus
and it safeguards evidence and enables officers to conduct an in-custody
investigation. A State’s choice of a more restrictive search-and-seizure
policy does not render less restrictive ones unreasonable, and hence un
constitutional. While States are free to require their officers to engage
in nuanced determinations of the need for arrest as a matter of their
own law, the Fourth Amendment should reflect administrable bright
line rules. Incorporating state arrest rules into the Constitution
would make Fourth Amendment protections as complex as the under
lying state law, and variable from place to place and time to time.
Pp. 173–176.
(d) The Court rejects Moore’s argument that even if the Constitution
allowed his arrest, it did not allow the arresting officers to search him.
Officers may perform searches incident to constitutionally permissible
arrests in order to ensure their safety and safeguard evidence. United
States v. Robinson, 414 U. S. 218. While officers issuing citations do
not face the same danger, and thus do not have the same authority to
search, Knowles v. Iowa, 525 U. S. 113, the officers arrested Moore, and
therefore faced the risks that are “an adequate basis for treating all
custodial arrests alike for purposes of search justification,” Robinson,
supra, at 235. Pp. 176–178.
272 Va. 717, 636 S. E. 2d 395, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, Souter, Thomas, Breyer, and Alito, JJ.,
joined. Ginsburg, J., filed an opinion concurring in the judgment, post,
p. 178.
Stephen R. McCullough, Deputy State Solicitor General of
Virginia, argued the cause for petitioner. With him on the
briefs were Robert F. McDonnell, Attorney General, Wil
liam E. Thro, State Solicitor General, William C. Mims,
Chief Deputy Attorney General, Marla Graff Decker, Dep
uty Attorney General, and Leah A. Darron, Senior Assistant
Attorney General.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae. With him on the brief
were Solicitor General Clement, Assistant Attorney Gen
eral Fisher, and Matthew D. Roberts.

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Opinion of the Court
Thomas C. Goldstein argued the cause for respondent.
With him on the brief were S. Jane Chittom, Pamela S. Kar
lan, Jeffrey L. Fisher, Amy Howe, and Kevin K. Russell.*
Justice Scalia delivered the opinion of the Court.
We consider whether a police officer violates the Fourth
Amendment by making an arrest based on probable cause
but prohibited by state law.
I
On February 20, 2003, two city of Portsmouth police offi
cers stopped a car driven by David Lee Moore. They had
heard over the police radio that a person known as “Chubs”
was driving with a suspended license, and one of the officers
knew Moore by that nickname. The officers determined
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First
Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney General
for Criminal Justice, R. Ted Cruz, Solicitor General, and Susanna Dokupil
and Adam W. Aston, Assistant Solicitors General, by Roberto J. Sa´ nchez-
Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General
for their respective States as follows: Troy King of Alabama, Terry God
dard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colo
rado, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, Michael
A. Cox of Michigan, Jim Hood of Mississippi, Catherine Cortez Masto of
Nevada, Kelly A. Ayotte of New Hampshire, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylva
nia, Henry D. McMaster of South Carolina, Lawrence E. Long of South
Dakota, Mark L. Shurtleff of Utah, and Bruce A. Salzburg of Wyoming;
and for Wayne County, Michigan, by Kym L. Worthy and Timothy A.
Baughman.
Briefs of amici curiae urging affirmance were filed for the American
Bar Association by William H. Neukom and Rory K. Little; for the Amer
ican Civil Liberties Union et al. by Susan N. Herman, Steven R. Shapiro,
and Rebecca Glenberg; and for the Virginia Trial Lawyers Association by
David B. Hargett.
E. Joshua Rosenkranz, Warrington S. Parker III, and Pamela Harris
filed a brief for the National Association of Criminal Defense Lawyers as
amicus curiae.

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that Moore’s license was in fact suspended, and arrested him
for the misdemeanor of driving on a suspended license, which
is punishable under Virginia law by a year in jail and a
$2,500 fine, Va. Code Ann. §§ 18.2–11 (Lexis 2004), 18.2–272
(Supp. 2007), 46.2–301(C) (2005). The officers subsequently
searched Moore and found that he was carrying 16 grams of
crack cocaine and $516 in cash.1 See 272 Va. 717, 636 S. E.
2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d 74 (2005).
Under state law, the officers should have issued Moore a
summons instead of arresting him. Driving on a suspended
license, like some other misdemeanors, is not an arrestable
offense except as to those who “fail or refuse to discontinue”
the violation, and those whom the officer reasonably believes
to be likely to disregard a summons, or likely to harm them
selves or others. Va. Code Ann. § 19.2–74 (Lexis 2004).
The intermediate appellate court found none of these circum
stances applicable, and Virginia did not appeal that determi
nation. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396–397,
n. 3. Virginia also permits arrest for driving on a suspended
license in jurisdictions where “prior general approval has
been granted by order of the general district court,” Va.
Code Ann. § 46.2–936; Virginia has never claimed such ap
proval was in effect in the county where Moore was arrested.
Moore was charged with possessing cocaine with the
intent to distribute it in violation of Virginia law. He filed
a pretrial motion to suppress the evidence from the ar
rest search. Virginia law does not, as a general matter, re
quire suppression of evidence obtained in violation of
state law. See 45 Va. App., at 160–162, 609 S. E. 2d, at 82
1 The arresting officers did not perform a search incident to arrest imme
diately upon taking Moore into custody, because each of them mistakenly
believed that the other had done so. App. 54–55; see also id., at 33–34.
They realized their mistake after arriving with Moore at Moore’s hotel
room, which they had obtained his consent to search, and they searched
his person there. Ibid. Moore does not contend that this delay violated
the Fourth Amendment.

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(Annunziata, J., dissenting). Moore argued, however, that
suppression was required by the Fourth Amendment. The
trial court denied the motion, and after a bench trial found
Moore guilty of the drug charge and sentenced him to a
5-year prison term, with one year and six months of the sen
tence suspended. The conviction was reversed by a panel
of Virginia’s intermediate court on Fourth Amendment
grounds, id., at 149–150, 609 S. E. 2d, at 76, reinstated by
the intermediate court sitting en banc, 47 Va. App. 55, 622
S. E. 2d 253 (2005), and finally reversed again by the Virginia
Supreme Court, 272 Va., at 725, 636 S. E. 2d, at 400. The
Court reasoned that since the arresting officers should have
issued Moore a citation under state law, and the Fourth
Amendment does not permit search incident to citation, the
arrest search violated the Fourth Amendment. Ibid. We
granted certiorari. 551 U. S. 1187 (2007).
II
The Fourth Amendment protects “against unreasonable
searches and seizures” of (among other things) the person.
In determining whether a search or seizure is unreasonable,
we begin with history. We look to the statutes and common
law of the founding era to determine the norms that the
Fourth Amendment was meant to preserve. See Wyoming
v. Houghton, 526 U. S. 295, 299 (1999); Wilson v. Arkansas,
514 U. S. 927, 931 (1995).
We are aware of no historical indication that those who
ratified the Fourth Amendment understood it as a redundant
guarantee of whatever limits on search and seizure legisla
tures might have enacted.2 The immediate object of the
2 Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view Justice
Ginsburg advances that the legality of arrests for misdemeanors involv
ing no breach of the peace “depended on statutory authorization.” Post,
at 178, n. 1 (opinion concurring in judgment). Atwater cited both of the
sources on which Justice Ginsburg relies for a limited view of common
law arrest authority, but it also identified and quoted numerous treatises

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Fourth Amendment was to prohibit the general warrants
and writs of assistance that English judges had employed
against the colonists, Boyd v. United States, 116 U. S. 616,
624–627 (1886); Payton v. New York, 445 U. S. 573, 583–584
(1980). That suggests, if anything, that founding-era citi
zens were skeptical of using the rules for search and seizure
set by government actors as the index of reasonableness.
Joseph Story, among others, saw the Fourth Amendment
as “little more than the affirmance of a great constitutional
doctrine of the common law,” 3 Commentaries on the Consti
tution of the United States § 1895, p. 748 (1833), which Story
defined in opposition to statutes, see Codification of the Com
mon Law in The Miscellaneous Writings of Joseph Story 698,
699, 701 (W. Story ed. 1852). No early case or commentary,
to our knowledge, suggested the Amendment was intended
to incorporate subsequently enacted statutes. None of the
early Fourth Amendment cases that scholars have identified
sought to base a constitutional claim on a violation of a state
or federal statute concerning arrest. See Davies, Recover
ing the Original Fourth Amendment, 98 Mich. L. Rev. 547,
613–614 (1999); 3 see also T. Taylor, Two Studies in Constitu
tional Interpretation 44–45 (1969).
that described common-law authority to arrest for minor misdemeanors
without limitation to cases in which a statute authorized arrest. See 532
U. S., at 330–332. Atwater noted that many statutes authorized arrest
for misdemeanors other than breaches of the peace, but it concluded that
the view of arrest authority as extending beyond breaches of the peace
also reflected judge-made common law. Id., at 330–331. Particularly
since Atwater considered the materials on which Justice Ginsburg re
lies, we see no reason to revisit the case’s conclusion.
3 Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613,
n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to
the Fourth Amendment’s contours simply applied the principle that stat
utes enacted in the years immediately before or after the Amendment
was adopted shed light on what citizens at the time of the Amendment’s
enactment saw as reasonable. Boyd v. United States, 116 U. S. 616, 622–
623 (1886).

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Of course such a claim would not have been available
against state officers, since the Fourth Amendment was a
restriction only upon federal power, see Barron ex rel.
Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But
early Congresses tied the arrest authority of federal officers
to state laws of arrest. See United States v. Di Re, 332 U. S.
581, 589 (1948); United States v. Watson, 423 U. S. 411, 420
(1976). Moreover, even though several state constitutions
also prohibited unreasonable searches and seizures, citizens
who claimed officers had violated state restrictions on arrest
did not claim that the violations also ran afoul of the state
constitutions.4 The apparent absence of such litigation is
particularly striking in light of the fact that searches inci
dent to warrantless arrests (which is to say arrests in which
the officer was not insulated from private suit) were, as one
commentator has put it, “taken for granted” at the founding,
Taylor, supra, at 45, as were warrantless arrests themselves,
Amar, Fourth Amendment First Principles, 107 Harv. L.
Rev. 757, 764 (1994).
There are a number of possible explanations of why such
constitutional claims were not raised. Davies, for example,
argues that actions taken in violation of state law could not
qualify as state action subject to Fourth Amendment con
straints. 98 Mich. L. Rev., at 660–663. Be that as it may,
as Moore adduces neither case law nor commentaries to sup
port his view that the Fourth Amendment was intended to
incorporate statutes, this is “not a case in which the claimant
can point to ‘a clear answer [that] existed in 1791 and has
4 Massachusetts, for example, had a state constitutional provision paral
leling the Fourth Amendment, but the litigants in the earliest cases we
have identified claiming violations of arrest statutes in the Commonwealth
did not argue that their arrests violated the Commonwealth’s Constitution.
See Brock v. Stimson, 108 Mass. 520 (1871); Phillips v. Fadden, 125 Mass.
198 (1878); see also Tubbs v. Tukey, 57 Mass. 438 (1849) (asserting violation
of state common law concerning arrest but not asserting violation of
state constitution).

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been generally adhered to by the traditions of our society
ever since.’ ” Atwater v. Lago Vista, 532 U. S. 318, 345
(2001) (alteration in original).
III
A
When history has not provided a conclusive answer, we
have analyzed a search or seizure in light of traditional
standards of reasonableness “by assessing, on the one hand,
the degree to which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests. ”
Houghton, 526 U. S., at 300; see also Atwater, 532 U. S., at
346. That methodology provides no support for Moore’s
Fourth Amendment claim. In a long line of cases, we have
said that when an officer has probable cause to believe a per
son committed even a minor crime in his presence, the
balancing of private and public interests is not in doubt.
The arrest is constitutionally reasonable. Id., at 354; see
also, e. g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004);
Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v.
United States, 338 U. S. 160, 164, 170, 175–176 (1949).
Our decisions counsel against changing this calculus when
a State chooses to protect privacy beyond the level that the
Fourth Amendment requires. We have treated additional
protections exclusively as matters of state law. In Cooper
v. California, 386 U. S. 58 (1967), we reversed a state court
that had held the search of a seized vehicle to be in violation
of the Fourth Amendment because state law did not explic
itly authorize the search. We concluded that whether state
law authorized the search was irrelevant. States, we said,
remained free “to impose higher standards on searches and
seizures than required by the Federal Constitution,” id., at
62, but regardless of state rules, police could search a law
fully seized vehicle as a matter of federal constitutional law.

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In California v. Greenwood, 486 U. S. 35 (1988), we held
that search of an individual’s garbage forbidden by Califor
nia’s Constitution was not forbidden by the Fourth Amend
ment. “[W]hether or not a search is reasonable within the
meaning of the Fourth Amendment,” we said, has never “de
pend[ed] on the law of the particular State in which the
search occurs.” Id., at 43. While “[i]ndividual States may
surely construe their own constitutions as imposing more
stringent constraints on police conduct than does the Federal
Constitution,” ibid., state law did not alter the content of the
Fourth Amendment.
We have applied the same principle in the seizure context.
Whren v. United States, 517 U. S. 806 (1996), held that police
officers had acted reasonably in stopping a car, even though
their action violated regulations limiting the authority of
plainclothes officers in unmarked vehicles. We thought it
obvious that the Fourth Amendment’s meaning did not
change with local law enforcement practices—even practices
set by rule. While those practices “vary from place to place
and from time to time,” Fourth Amendment protections are
not “so variable” and cannot “be made to turn upon such
trivialities.” Id., at 815.
Some decisions earlier than these excluded evidence ob
tained in violation of state law, but those decisions rested on
our supervisory power over the federal courts, rather than
the Constitution. In Di Re, 332 U. S. 581, federal and state
officers collaborated in an investigation that led to an arrest
for a federal crime. The Government argued that the legal
ity of an arrest for a federal offense was a matter of federal
law. Id., at 589. We concluded, however, that since Con
gress had provided that arrests with warrants must be made
in accordance with state law, the legality of arrests without
warrants should also be judged according to state-law stand
ards. Id., at 589–590. This was plainly not a rule we de
rived from the Constitution, however, because we repeatedly
invited Congress to change it by statute—saying that state

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law governs the validity of a warrantless arrest “in [the] ab
sence of an applicable federal statute,” id., at 589, and that
the Di Re rule applies “except in those cases where Congress
has enacted a federal rule,” id., at 589–590.
Later decisions did not expand the rule of Di Re. John
son v. United States, 333 U. S. 10 (1948), relied on Di Re to
suppress evidence obtained under circumstances identical in
relevant respects to those in that case. See 333 U. S., at 12,
15, n. 5. And Michigan v. DeFillippo, 443 U. S. 31 (1979),
upheld a warrantless arrest in a case where compliance with
state law was not at issue. While our opinion said that
“[w]hether an officer is authorized to make an arrest ordi
narily depends, in the first instance, on state law,” it also
said that a warrantless arrest satisfies the Constitution so
long as the officer has “probable cause to believe that the
suspect has committed or is committing an offense.” Id.,
at 36. We need not pick and choose among the dicta: Nei
ther Di Re nor the cases following it held that violations of
state arrest law are also violations of the Fourth Amend
ment, and our more recent decisions, discussed above, have
indicated that when States go above the Fourth Amendment
minimum, the Constitution’s protections concerning search
and seizure remain the same.
B
We are convinced that the approach of our prior cases is
correct, because an arrest based on probable cause serves
interests that have long been seen as sufficient to justify the
seizure. Whren, supra, at 817; Atwater, supra, at 354. Ar
rest ensures that a suspect appears to answer charges and
does not continue a crime, and it safeguards evidence and
enables officers to conduct an in-custody investigation. See
W. LaFave, Arrest: The Decision to Take a Suspect Into Cus
tody 177–202 (1965).
Moore argues that a State has no interest in arrest when
it has a policy against arresting for certain crimes. That is

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not so, because arrest will still ensure a suspect’s appearance
at trial, prevent him from continuing his offense, and enable
officers to investigate the incident more thoroughly. State
arrest restrictions are more accurately characterized as
showing that the State values its interests in forgoing ar
rests more highly than its interests in making them, see, e. g.,
Dept. of Justice, National Institute of Justice, D. Whitcomb,
B. Lewin, & M. Levine, Issues and Practices: Citation Re
lease 17 (Mar. 1984) (describing cost savings as a principal
benefit of citation-release ordinances); or as showing that the
State places a higher premium on privacy than the Fourth
Amendment requires. A State is free to prefer one search
and-seizure policy among the range of constitutionally per
missible options, but its choice of a more restrictive option
does not render the less restrictive ones unreasonable, and
hence unconstitutional.
If we concluded otherwise, we would often frustrate
rather than further state policy. Virginia chooses to protect
individual privacy and dignity more than the Fourth Amend
ment requires, but it also chooses not to attach to violations
of its arrest rules the potent remedies that federal courts
have applied to Fourth Amendment violations. Virginia
does not, for example, ordinarily exclude from criminal trials
evidence obtained in violation of its statutes. See 45 Va.
App., at 161, 609 S. E. 2d, at 82 (Annunziata, J., dissenting)
(citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472
S. E. 2d 649, 652 (1996)). Moore would allow Virginia to
accord enhanced protection against arrest only on pain of
accompanying that protection with federal remedies for
Fourth Amendment violations, which often include the exclu
sionary rule. States unwilling to lose control over the rem
edy would have to abandon restrictions on arrest altogether.
This is an odd consequence of a provision designed to protect
against searches and seizures.
Even if we thought that state law changed the nature of
the Commonwealth’s interests for purposes of the Fourth

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Amendment, we would adhere to the probable-cause stand
ard. In determining what is reasonable under the Fourth
Amendment, we have given great weight to the “essential
interest in readily administrable rules.” Atwater, 532 U. S.,
at 347. In Atwater, we acknowledged that nuanced judg
ments about the need for warrantless arrest were desirable,
but we nonetheless declined to limit to felonies and disturb
ances of the peace the Fourth Amendment rule allowing ar
rest based on probable cause to believe a law has been bro
ken in the presence of the arresting officer. Id., at 346–347.
The rule extends even to minor misdemeanors, we concluded,
because of the need for a bright-line constitutional standard.
If the constitutionality of arrest for minor offenses turned in
part on inquiries as to risk of flight and danger of repetition,
officers might be deterred from making legitimate arrests.
Id., at 351. We found little to justify this cost, because there
was no “epidemic of unnecessary minor-offense arrests,”
and hence “a dearth of horribles demanding redress.” Id.,
at 353.
Incorporating state-law arrest limitations into the Consti
tution would produce a constitutional regime no less vague
and unpredictable than the one we rejected in Atwater.
The constitutional standard would be only as easy to apply
as the underlying state law, and state law can be complicated
indeed. The Virginia statute in this case, for example, calls
on law enforcement officers to weigh just the sort of case
specific factors that Atwater said would deter legitimate ar
rests if made part of the constitutional inquiry. It would
authorize arrest if a misdemeanor suspect fails or refuses to
discontinue the unlawful act, or if the officer believes the
suspect to be likely to disregard a summons. Va. Code Ann.
§ 19.2–74.A.1. Atwater specifically noted the “extremely
poor judgment” displayed in arresting a local resident who
would “almost certainly” have discontinued the offense and
who had “no place to hide and no incentive to flee.” 532
U. S., at 346–347. It nonetheless declined to make those

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considerations part of the constitutional calculus. Atwater
differs from this case in only one significant respect: It con
sidered (and rejected) federal constitutional remedies for all
minor-misdemeanor arrests; Moore seeks them in only that
subset of minor-misdemeanor arrests in which there is the
least to be gained—that is, where the State has already acted
to constrain officers’ discretion and prevent abuse. Here we
confront fewer horribles than in Atwater, and less of a need
for redress.
Finally, linking Fourth Amendment protections to state
law would cause them to “vary from place to place and from
time to time,” Whren, 517 U. S., at 815. Even at the same
place and time, the Fourth Amendment’s protections might
vary if federal officers were not subject to the same statu
tory constraints as state officers. In Elkins v. United
States, 364 U. S. 206, 210–212 (1960), we noted the practical
difficulties posed by the “silver-platter doctrine,” which had
imposed more stringent limitations on federal officers than
on state police acting independent of them. It would be
strange to construe a constitutional provision that did not
apply to the States at all when it was adopted to now restrict
state officers more than federal officers, solely because the
States have passed search-and-seizure laws that are the pre
rogative of independent sovereigns.
We conclude that warrantless arrests for crimes com
mitted in the presence of an arresting officer are reasonable
under the Constitution, and that while States are free to reg
ulate such arrests however they desire, state restrictions do
not alter the Fourth Amendment’s protections.
IV
Moore argues that even if the Constitution allowed his ar
rest, it did not allow the arresting officers to search him.
We have recognized, however, that officers may perform
searches incident to constitutionally permissible arrests in
order to ensure their safety and safeguard evidence. United

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States v. Robinson, 414 U. S. 218 (1973). We have described
this rule as covering any “lawful arrest,” id., at 235, with
constitutional law as the reference point. That is to say, we
have equated a lawful arrest with an arrest based on proba
ble cause: “A custodial arrest of a suspect based on probable
cause is a reasonable intrusion under the Fourth Amend
ment; that intrusion being lawful, a search incident to the
arrest requires no additional justification.” Ibid. (emphasis
added). Moore correctly notes that several important
state-court decisions have defined the lawfulness of arrest in
terms of compliance with state law. See Brief for Respond
ent 32–33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142
N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17–19,
150 N. E. 585, 586 (1926)). But it is not surprising that
States have used “lawful” as shorthand for compliance with
state law, while our constitutional decision in Robinson used
“lawful” as shorthand for compliance with constitutional
constraints.
The interests justifying search are present whenever an
officer makes an arrest. A search enables officers to safe
guard evidence, and, most critically, to ensure their safety
during “the extended exposure which follows the taking of
a suspect into custody and transporting him to the police
station.” Robinson, supra, at 234–235. Officers issuing ci
tations do not face the same danger, and we therefore held
in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not
have the same authority to search. We cannot agree with
the Virginia Supreme Court that Knowles controls here.
The state officers arrested Moore, and therefore faced the
risks that are “an adequate basis for treating all custodial
arrests alike for purposes of search justification.” Robin
son, supra, at 235.
The Virginia Supreme Court may have concluded that
Knowles required the exclusion of evidence seized from
Moore because, under state law, the officers who arrested
Moore should have issued him a citation instead. This argu

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178 VIRGINIA v. MOORE
Ginsburg, J., concurring in judgment
ment might have force if the Constitution forbade Moore’s
arrest, because we have sometimes excluded evidence ob
tained through unconstitutional methods in order to deter
constitutional violations. See Wong Sun v. United States,
371 U. S. 471, 484–485, 488 (1963). But the arrest rules that
the officers violated were those of state law alone, and as
we have just concluded, it is not the province of the Fourth
Amendment to enforce state law. That Amendment does
not require the exclusion of evidence obtained from a consti
tutionally permissible arrest.
* * *
We reaffirm against a novel challenge what we have sig
naled for more than half a century. When officers have
probable cause to believe that a person has committed a
crime in their presence, the Fourth Amendment permits
them to make an arrest, and to search the suspect in order
to safeguard evidence and ensure their own safety. The
judgment of the Supreme Court of Virginia is reversed, and
the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
Justice Ginsburg, concurring in the judgment.
I find in the historical record more support for Moore’s
position than the Court does, ante, at 168–171.1 Further,
1 Under the common law prevailing at the end of the 19th century, it
appears that arrests for minor misdemeanors, typically involving no
breach of the peace, depended on statutory authorization. See Wilgus,
Arrest Without a Warrant, 22 Mich. L. Rev. 541, 674 (1924) (“Neither [an
officer] nor [a citizen], without statutory authority may arrest [a defend
ant] for . . . a misdemeanor which is not a [breach of the peace]” (emphasis
added)); 9 Halsbury, Laws of England §§ 608, 611–612, 615 (1909). See
also Atwater v. Lago Vista, 532 U. S. 318, 342–345 (2001) (noting 19th
century decisions upholding statutes extending warrantless arrest author
ity to misdemeanors, other than breaches of the peace, committed in a
police officer’s presence); Wilgus, supra, at 551 (warrantless misdemeanor

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179 Cite as: 553 U. S. 164 (2008)
Ginsburg, J., concurring in judgment
our decision in United States v. Di Re, 332 U. S. 581, 587–590
(1948), requiring suppression of evidence gained in a search
incident to an unlawful arrest, seems to me pinned to the
Fourth Amendment and not to our “supervisory power,”
ante, at 172.2 And I am aware of no “long line of cases”
holding that, regardless of state law, probable cause renders
every warrantless arrest for crimes committed in the pres
ence of an arresting officer “constitutionally reasonable,”
ante, at 171.3
arrests “made under authority of a statute must conform strictly to its
provisions; otherwise they will not be valid, and the one arresting becomes
a trespasser”).
Noting colonial hostility to general warrants and writs of assistance, the
Court observes that “founding-era citizens were skeptical of using the
rules for search and seizure set by government actors as the index of
reasonableness.” Ante, at 169. The practices resisted by the citizenry,
however, served to invade the people’s privacy, not to shield it.
2 The Court attributes Di Re’s suppression ruling to our “supervisory
power,” not to “a rule we derived from the Constitution.” Ante, at 172.
Justice Jackson, author of Di Re, however, did not mention “supervisory
power,” placed the decision in a Fourth Amendment context, see 332 U. S.,
at 585, and ended with a reminder that “our Constitution [places] obstacles
in the way of a too permeating police surveillance,” id., at 595. The Di Re
opinion, I recognize, is somewhat difficult to parse. Allied to Di Re’s
Fourth Amendment instruction, the Court announced a choice-of-law rule
not derived from the Constitution: When a state officer makes a warrant
less arrest for a federal crime, federal arrest law governs the legality of
the arrest; but absent a federal statute in point, “the law of the state
where an arrest without warrant takes place determines its validity.”
Id., at 588–589.
3 Demonstrative of the “long line,” the Court lists Atwater, 532 U. S.,
at 354, Devenpeck v. Alford, 543 U. S. 146, 152 (2004), Brinegar v. United
States, 338 U. S. 160, 164, 170, 175–176 (1949), and Gerstein v. Pugh, 420
U. S. 103, 111 (1975). Ante, at 171. But in all of these cases, unlike
Moore’s case, state law authorized the arrests. The warrantless misde
meanor arrest in Atwater was authorized by Tex. Transp. Code Ann.
§ 543.001 (West 1999). See 532 U. S., at 323. The warrantless misde
meanor arrest in Devenpeck was authorized by Wash. Rev. Code Ann.
§ 10.31.100 (Michie 1997). In Brinegar, whether the warrantless arrest
was for a misdemeanor or a felony, it was authorized by state law. See

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180 VIRGINIA v. MOORE
Ginsburg, J., concurring in judgment
I agree with the Court’s conclusion and its reasoning, how
ever, to this extent. In line with the Court’s decision in At
water v. Lago Vista, 532 U. S. 318, 354 (2001), Virginia could
have made driving on a suspended license an arrestable of
fense. The Commonwealth chose not to do so. Moore asks
us to credit Virginia law on a police officer’s arrest authority,
but only in part. He emphasizes Virginia’s classification of
driving on a suspended license as a nonarrestable misde
meanor. 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 per
son 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.
The Fourth Amendment, today’s decision holds, does not
put States to an all-or-nothing choice in this regard. A
State may accord protection against arrest beyond what the
Fourth Amendment requires, yet restrict the remedies avail
able when police deny to persons they apprehend the extra
protection state law orders. See ante, at 173–174. Because
I agree that the arrest and search Moore challenges violated
Virginia law, but did not violate the Fourth Amendment,
I join the Court’s judgment.
Okla. Stat., Tit. 22, § 196 (1941). Gerstein involved a challenge to the
State’s preliminary hearing procedures, not to the validity of a particular
arrest. See 420 U. S., at 105. The record does not indicate whether the
respondents’ offenses were committed in the officer’s presence or whether
the arrests were made under warrant. See id., at 105, n. 1. But it does
indicate that the crimes involved were serious felonies, see ibid., and state
law authorized arrest without warrant when “[a] felony has been com
mitted and [the officer] reasonably believes that the [apprehended] person
committed it,” Fla. Stat. Ann. § 901.15(2) (West Supp. 1973).