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Rose v. City of Mulberry: 1983 | 4TH AMENDMENT - officer had probable cause for arrest, even without authority to make traffic stops

1The Honorable Robert Dawson, United States District Judge for the Western
District of Arkansas.
United States Court of Appeals
No. 07-1645
Thomas Matthew Rose, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
City of Mulberry, Arkansas, *
Appellee. *
Submitted: January 18, 2008
Filed: July 9, 2008
Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
WOLLMAN, Circuit Judge.
Thomas Matthew Rose sued the city of Mulberry, Arkansas, under 42 U.S.C.
1983, 1988, for violating his Fourth Amendment right to be free from unreasonable
searches and seizures. Rose appeals from the adverse jury verdict on his claim,
arguing that the district court1 erred in several of its rulings. We affirm.
As Rose was passing through Mulberry on Interstate Highway 40 on August 1,
2005, Mulberry police officer Robert Limbocker stopped him for driving twenty-two
miles per hour over the speed limit. Rose denied Limbockers request to search his
vehicle. Two other officers arrived with a police dog, which did not alert on Roses
vehicle. Police dispatch notified Limbocker that there was an outstanding California
warrant on Rose, though California apparently did not want him extradited.
Limbocker arrested Rose for reckless driving and impounded his vehicle, whereupon
the other officers departed. Limbocker then searched Roses vehicle and found no
contraband. Limbocker took Rose to the Van Buren, Arkansas, jail, from which he
was released on bond after having been in custody for approximately two-and-onehalf
hours. The charges against him were subsequently dismissed.
Roses suit is based on his claim that because Limbocker was without
jurisdiction to arrest him on Interstate 40, the stop and subsequent search violated the
Fourth Amendment. See Bissonette v. Haig, 800 F.2d 812, 816 (8th Cir. 1986) (en
At the time of Roses arrest, Arkansas law provided that [m]unicipal police are
prohibited from patrolling limited access highways except as may be authorized by
the director [of the Department of Arkansas State Police]. Ark. Code Ann. 12-8-
106(h)(1) (2005). Mulberry had not received such permission (indeed, its request for
such permission was specifically denied).
Limbocker had probable cause to detain and arrest Rose because he witnessed
Rose commit a traffic violation. See Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001); Whren v. United States, 517 U.S. 806, 819 (1996); Sherbrooke v. City of
Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008). Thus, the determinative issue is
whether an arrest by a city police officer outside of his jurisdiction but made with
probable cause violates the Fourth Amendment as a matter of law.
Our cases on this issue have been mixed. In Bissonette, we noted in dicta that
a search unauthorized by state law would ipso facto violate the Fourth Amendment.
800 F.2d at 816. We have held or made statements to that effect in other cases. E.g.,
United States v. Belcher, 288 F.3d 1068, 1070 (8th Cir. 2002) (holding that a violation
of state law made the action presumptively unreasonable); Brock v. Logan County
Sheriffs Dept., 3 F.3d 1215, 1216 (8th Cir. 1993) (per curiam); Cole v. Neb. State Bd.
of Parole, 997 F.2d 442, 444. (8th Cir. 1993). Nevertheless, we have also held that
[c]onduct by a government official that violates some state statutory or administrative
provision is not necessarily constitutionally unreasonable. Cole v. Bone, 993 F.2d
1328, 1334 (8th Cir. 1993). This position, too, has support within our cases. E.g.,
Abbott v. City of Crocker, Mo., 30 F.3d 994, 997 (8th Cir 1994); United States v.
Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994).
Whatever the state of our circuit law has been on this question, the Supreme
Court recently held that a police officer who makes an arrest that is based on probable
cause but who is prohibited by state law from doing so does not violate the Fourth
Amendment. Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008). Moore was arrested
for the misdemeanor of driving with a suspended license despite the fact that in the
circumstances of his case Virginia law authorized only the issuance of a summons.
The Court held that although a state may provide more protection from warrantless
arrests than the federal Constitution, that enhanced protection does not govern the
scope of the protections afforded by the Fourth Amendment. Id. at 1606-07. If state
laws could define the contours of the Fourth Amendment, its protections would vary
from place to place and from time to time. Id. at 1607 (quoting Whren, 517 U.S. at
The Court noted that this rule was implicit in its earlier decisions. Id. at 1604-
05. In Whren, the warrantless arrest based on probable cause was upheld even though
plainclothes officers in unmarked cars were not generally permitted by the District of
Columbias police regulations to enforce traffic laws. 517 U.S. at 815. Just as a
search authorized by state law may be an unreasonable one under [the Fourth
Amendment], so may a search not expressly authorized by state law be justified as a
constitutionally reasonable one. Cooper v. California, 386 U.S. 58, 61 (1967). In
Atwater, the Court held that:
[T]he standard of probable cause applie[s] to all arrests, without the
need to balance the interests and circumstances involved in particular
situations. If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.
532 U.S. at 354 (citation omitted) (quoting Dunaway v. New York, 442 U.S. 200, 208
(1979)). Concluding its discussion of the officers authority to make the arrest, the
Court held that warrantless arrests for crimes committed in the presence of an
arresting officer are reasonable under the Constitution, and that while States are free
to regulate such arrests however they desire, state restrictions do not alter the Fourth
Amendments protections. Moore, 128 S. Ct. at 1607.
Limbocker lacked the authority under Arkansas law to make traffic stops and
arrests on the Interstate. Nevertheless, because he had probable cause to arrest for the
offense of reckless driving committed in his presence, no Fourth Amendment
violation occurred, with the result that Roses cause of action fails as a matter of law.
Because our holding on this issue renders moot the other issues raised by the
appeal, we need not discuss them.
The judgment is affirmed.


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