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Penn v. Commonwealth12/10/1991
warrantless misdemeanor arrest is valid when the offense was not committed in an officer's presence." Thompson, 10 Va. App. at 121, 390 S.E.2d at 201 (citing Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir. 1974)). However, the Fourth Circuit has stated: "We do not think the fourth amendment should now be interpreted to prohibit warrantless arrests for misdemeanors committed outside an officer's presence." Street, 492 F.2d at 372. In other words, there is no fourth amendment violation for misdemeanor arrests committed outside the presence of the arresting state officer. See id. at 371-72.
(10) Moreover, the fact that Virginia has adopted a more stringent statutory requirement for warrantless misdemeanor arrests committed outside the officer's presence does not mean that Penn has acquired a constitutional right. "Although the states are free to impose greater protections for an arrest than those embodied in the federal constitution, by imposing such a requirement the States do not thereby also create a right of constitutional dimension." Thompson, 10 Va. App. at 122, 390 S.E.2d at 201. Under Virginia law, no suppression of evidence is required when evidence is obtained in violation of state law but when no constitutional violation has occurred. See id. at 121-22, 390 S.E.2d at 201. "While violations of state procedural statutes are viewed with disfavor, Campbell v. Commonwealth, 194 Va. 825, 831, 75 S.E.2d 468, 472 (1953), neither the Virginia Supreme Court nor the legislature has adopted an exclusionary rule for such violations." Thompson, 10 Va. App. at 122, 390 S.E.2d at 201.
(11) Although Penn does not challenge the constitutionality of the arrest, it is evident that the arrest did not implicate his fourth amendment rights. The fourth amendment permits an officer who has probable cause to make a warrantless arrest. See id. Accordingly, probable cause is the standard for testing the constitutional validity of the arrest. Id. at 121, 390 S.E.2d at 201. Officer Meechum had probable cause to arrest Penn for littering. "' he
test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed.'" DePriest, 4 Va. App. at 583-84, 359 S.E.2d at 543 (quoting Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970)). The radio message from Officer Smith, which was based on Smith's personal observations, was sufficient to give Officer Meechum probable cause to believe that Penn was guilty of littering.
We find that Penn was arrested in violation of Code § 19.2-81, but that his arrest was nonetheless constitutionally valid. In the absence of any deprivation of constitutional rights, an arrest in violation of state statute does not require exclusion of any evidence obtained as a result of the arrest. Therefore, the trial court properly admitted the evidence seized pursuant to the arrest. For these reasons, we affirm Penn's conviction.
Affirmed.
Disposition
Affirmed.
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