Today, we're filing this brief for the respondent in Virginia v. Moore, which is a Fourth Amendment case. Police officers stopped and arrested respondent for the misdemeanor offense of driving with a suspended license. They eventually searched him, finding crack cocaine.Virginia law prohibits an arrest for misdemeanors, absent special circumstances not present here. The Virginia Supreme Court held that, because the arrest was unlawful, the search violated the Fourth Amendment. The U.S. Supreme Court granted certiorari.

The State's brief is here. It argues principally that "probable cause" to believe an offense has occurred justifies an arrest. Our principal response is that the Fourth Amendment requires a balancing of individual and governmental interests, and when state law makes an offense nonarrestable there necessarily is no governmental interest to render it "reasonable" to take the person into custody.

S. Jane Chittom of the Office of the Appellate Defender in Virginia is counsel of record. With her on the brief are Stacie A. Cass, also of that office; Pam Karlan and Jeff Fisher of the Stanford Supreme Court Clinic; Amy Howe and Kevin Russell of Howe & Rusell; and me and Steven Wu from Akin. The Stanford Clinic students who contributed to this brief were Anna Neill, Steven Siger, Scott Stewart, and Tom Zimpleman.

Oral argument is set for January 14.

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