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The Honorable Robert Dawson, United States District Judge for the Western

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1645

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Thomas Matthew Rose, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

City of Mulberry, Arkansas, *

*

Appellee. *

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Submitted: January 18, 2008

Filed: July 9, 2008

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Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

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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
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miles per hour over the speed limit. Rose denied Limbocker’s request to search his

vehicle. Two other officers arrived with a police dog, which did not alert on Rose’s

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 Rose’s 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.

Rose’s 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

banc). 

At the time of Rose’s 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.”
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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

Sheriff’s 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

815). 

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

Columbia’s 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
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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

Amendment’s 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 Rose’s 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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