Fourth Amendment Federalism and the Silencing of the American Poor

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant.

Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz argues in this essay, however, that the Amendment's meaning does, and should, sometimes so vary. Indeed, he explains, Moore itself illustrates how a place-blind jurisprudence can disempower poor racial minorities, whose voice, articulating a more therapeutic approach to crime, is heard more clearly by local legislatures than by the more distant and punitive state ones. Permitting the state to declare the injustice of arrest for minor offenses while providing no remedy when that injustice nevertheless occurs frees police to arrest the politically weak for such offenses while merely citing the politically powerful.

A more geography-centric view of the Fourth Amendment would minimize these and other risks of unequal and unreasonable state invasions of the privacy, property, and locomotive rights that the Amendment protects.