# Petitioners Brief — Ricci v. Village of Arlington Heights

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 613

## Text

CW)

No. 97-501

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997

RANDALL RICCI,
Petitioner,
v.
VILLAGE OF ARLINGTON, HEIGHTS
A MUNICIPAL CORPORATION,
Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR PETITIONER

KENNETH N. FLAXMAN

122 South Michigan Avenue
Suite 1850

Chicago, Illinois 60603
(312) 427-3200

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Does the reasonableness clause of the Fourth Amend-
ment incorporate the common law rule prohibiting war-
rantless arrests in misdemeanor cases that do not
involve a breach of the peace?

May a municipality, consistent with the reasonableness
clause of the Fourth Amendment, require its police
officers to make full custodial arrests for an alleged
violation of a fine only license ordinance "in order to
ensure compliance with the ordinance?"

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JURISDICTIONAL STATEMENT 00.0.......cccccccceeeeseeeeeees 1
CONSTITUTIONAL PROVISION INVOLVED ................ 1
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SUMMARY OF ARGUMENT o000........ccccccccececseeeceeneenees 5
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TABLE OF AUTHORITIES

Bell v. Wolfish, 441 U.S. 520 (1979 ooo occcccccccccsseesesssseeeeeeeeecccc., 10
Boyd v. United States, 116 U.S 616 (1886) oocccccccccccccoooooos-., 24
Brinegar v. United States, 338 U.S. 160 i 26
California v. Hodari D., 499 U.S. 621 (1991) |... 9
Carroll v. United States, 267 U.S. 132 (1925) ooo 7
City of Greeley v. Hamman, 12 Colo. 94 (1888) oo. cccccccceeeees 11
City of Milwaukee v. Nelson, 149 Wis.2d 434,

SSD INW28 S62 (UGOD) cn aacccesccccncecccncecesssvecseesessesesossses........ 13
Commonwealth v. Baez, 42 Mass.App. 565,

678 N.E.2d 1335, 1338 (1997) ooooccccccccssescssesessveeeeeeeeeeeeccce.. 16
Commonwealth v. Wright, 158 Mass. 149,

Ue NOITU Seetitherictittiiidacaeetecianteseeee ee 16
Coupey v. Henley, 2 Esp. 540, 170 Eng.Rep. 448 (C.P.1797) ..... 10
Davis v. United States, 328 U.S. 582 (1946) ooo. 7
Delaware v. Prouse, 440 U.S. 8 ee 5,9
Fisher v. Washington Metro. Area Transit Authority,

690 F.2d 1133 (4th Cir. 1982) ooo ecccecccccccscsssesesssseeseseeeecosse.. 12
Garcia v. People, 160 Colo. 220, 416 P.2d 373 Ee 20
Garner v. Tennessee, 471 U.S.1 (1985S oooceccccccooccccseeeeoeoooe 13
Gerstein v. Pugh, 420 U.S. 103 ee ee 9
Griffin v. Wisconsin, 483 U.S. 868 (1987)... 10
Gustafson v. Florida, 414 U.S. 260 (1973) ooo 8
Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68 RE 12
Henry v. United States, 361 U.S. 98 (1959 9
Hester v. United States, 265 U.S. 57 (1924) occ 9
Higbee v. City of San Diego, 911 F.2d 377 (9th Cir. 1990) ........ 12

In re Kellam, 5S Kan. 700, 41 P. 960 (1895) .......... 11

- iii -
.
Salt Lake City v. Hanson, 19 Utah 2d 32,

In re Rottanak K., 37 Cal.App.4th 260, 425 P.2d 773 (1967) ecesccsssssseessrtssetiptteteteeeeeeeeeceecce, 19

43 Cal. Rptr.2¢ 543, $52 (1995) oo ccccccccccsssssssereeeeeeeeeeoece 25 Schaefer v. State, 31 Md.App. 437, 356 A.2d 617 (1976) -
"INWOOD , Simon v. West Virginia Deparment of Motor Vehicles,

‘W. 1021 (1879) sesscsersnerernneernse 181 W.Va. 267, 383 S.E.2d 320 (1989) 21

John Bad Elk v. United States, 177 U.S. 529 (1900) ................. 6 innit Rateaiy Adee Ginnsiten ham.
Johnson v. United States, 333 U.S. 10 (1948) .................. 25, 27 PE ce 9
Judson v. Reardon, 16 Minn. 431 (1871) coccccccocoeooe000..... 6, 24 State v. Berker, 120 R.1. 849, 391 A.2d 107 (1978) 17
Kirchoff v. Flynn, 786 F.2d 320 (1986) oooccccoocceceeee0ee000000.... 8 State v. Bowman, 124 Idaho 936, 866 P.2d 193 (1994) 19
Kurtz v. Moffitt, 15 U.S. 487 (1885) oooccccccccccccoeeeoeeeeooececc. 7 State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (1958) 18
Leach v. Three of the King’s Messengers, State v. Carroll, 131 Conn, 224, 38 A.2d 798 (1944) 15

19 How. St. Tr. 1001 (1765) soocecccooc coe. rn 9 Siete. Phenols, 295 Ken. 09, 006724503 0800 is
= - 25 904 Wenn we a 7 ee - State v. Grant, 76 MO. 236 (1882) oecoceccsoceeseeeeeeoocc.. 1
New Jersey v. T.L.O., 469 U.S. 325 (1985) coccccccccoeeooeo. 10 State v. Hurtado, 113 NJ. 1, $49 A.2d 428 (1988) ccc 16
New York v. Berger 482 U.S. 691 (1987) soscecccccceeo0-000000..... 10 State v. Jetty 176 Mont. $19, $79 P.24 1228 (1978) ccs 20
Payton v. New York, 445 U.S. $73 (1980... 9 State v. Lutz, 85 W.Va. 330, 101 S.E. 434 (1919) oe cereo i
Peaple v. Barvientes, 1997 WL NESSI (Cela.Agp. 1997)... - State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989) 20
People v. Edge, 406 Ill. 490, 94 N.E.2d 359 (1950) ....... 12, 13 State v. Ritter, 472 N.W.2d 444 (North Dakota 1996) ............ 20
ae he eoesn, wenyesien State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973) cco 20

183 N.E.2d 225 (1962) occcccccessoosiesevveceeseeteeecce coeeeeeeseecc 14 State v. Taylor, 167 Ariz. 439, 808 P.2d 324 (1991)... 18
People v. Terrero, 139 A.D.2d 830, State v. Tywayne H., 123 N.M. 42, 933 P.2d 251 (1997)... 18

537 N.Y.S.24 135 (1988) ooeccceccsosesssssssosessesstteseeeeeeeeesecee 14 fate, Vellaawes, SPIER ws
Pesterfield v. Vickers, 43 Tenn. 205 (1866) ..-cccccccccccccccccecosooeeee-. 1] State v. Vonderfecht, 284 N.J.Super. 555,
Pickett v. State, 99 Ga. 12, 25 S.E. 608 (1896) ............. 14 665 A.2d 1145 (1995) oo ccccecssorsntsersetiteteeteeeeeeecc. 16
Pierson v. Ray, 386 U.S. $47 (1967) ooooocccccccccccccseseseessoveeeeeeeeeeeee.. y Steagald v. United States, 451 U.S. 204 Pee 9
Pow v. Beckner, 3 Wd. 474 (1852) coccoccocececoceeceeeseeeeec 6, 11, 24 Thomas v. State, 614 So.2d 468 (Fla. 1993) ........... 25
Pulliam y. Allen, 466 U.S. 522 (19B4 covcccccoocccsseeseeeeeeeeecce. 27 Tomlin v. State, 869 P.2d 334 (1994) ooo... 19
Robbins v. California, 453 U.S. 420 (1981) ceecocccoccoooeeeoo.. 8 United States v. DiRe, 332 U.S. $81 (1948) 000. 27

site
United States v. Dionisio, 410 U.S. 1 (1973) cocccccccccsccssseocoseesessees 24
United States v. Marion, 404 U.S. 307 (1971) cocccccccocsocsessssseoseses 24
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) cecccccoseosc. 10
United States v. Mota, 982 F.2d 1384 (9th Cir. 1993) .ooccccccccs... 22
United States v. Philibert, 947 F.2d 1467 (11th Cir. 1991) ......... 12
United States v. United States District Court,

I Rs I UU Riera ie 9
United States v. Viale, 312 F.2d 595 (2d Cir. 1963) cooccccccccoccoseo 14
United States v. Watson, 423 U.S. 411 (1976) coocccccccccccsssosesees 7, 12
White v. Kent, 11 Ohio 3t. 550 (OWI0 1860) oo.ceccccccecceesessesseesee 23
Whren v. United States, 517 U.S. 806 (1996) oo.cccccccccccccocsssseseconeses 9
Wilson v. Arkansas, 514 U.S. 927, 931 (1995) oooccccccccccssceoseseee. 5,9
Wong Sun v. United States, 271 U.S. 471 (1963) cocccccccccccecssooeosee 26
Me i ee 18
SA Asiz. Rev. Stat. § 13-3684 oon....cccccccecoccescssessesesocscesssesessessesecose 18
SA Aiz. Rev. Stat. $13-F903 .n..n.cccccecoccscscccesessessescesesoeserseseeseee 18
Calif. Pemal Code $853.5 (1997) .o.....cccccccccscsssesecsessessesssseeeveeesesee 22
Conn. General Statute §54-1f(a) ~.........ccccccccssssecsessessesmesessessesneseeees 15
11 Del.Code Amn. $1904 (1997) oie ccccccccsssesesssmsrsverereeveesees 15
Ga.Code.Annot. §17-4-20 (1997) occ cccccccccccessessessecsrssreseesvesseseesee 15
NY TT TEEN 19
MBLCOGRAGB. GOS-BO B66 occccscncccccocceceseccsscoscevecessossenseeeeessoeosees 13
Kan.Stat.Ann. 22-2401 (1997) .....cccccccscsescesesseressecersesessrssseseeseseeees 21
Mass. Ann.Laws. Ch. 90, $21 .....ccccccssscssessssesesersesecessesssersseseeseseese 16
Md.Ann.Code of 1957, Art. 27, $594B ooocccccccceccssessssessssrsseeseoeees 15
Mont. Code Anno. §46-6-311 (1997) oooocccccccccccseccesessesseseeseeeeeeeeee 20

N.C. Gen. Stat. $15A-401 (1997) oon cccccccsesscsessesesseseeeenenens 16-17

Ne ks OS a eT 20
N.H. Rev. Stat. Amn. §594:10 (1996) ooocccccccccccccscsseossseeeeeeeeeeoeose 16
N.Y. Crim. Pro. Law §140.10 (McKinney 1997) ........................ 14
Neb.Rev.Stat. §29-404.02 (1997) ooo.ccccccccccssessssssssssessscesseeeeoeseeseee 20
Nev.Rev.Stat. $171,124 (1997) ......ccccccssssesssscssssssssesssseesseeeeseesosece 21
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TOU U TI, GEDBIID cccccsccccccccessssssssvevusnteessessesssnssatsssies ce... 21
PIII sittsenisttenncdnictnictetisiemssnicatirntammninimenittttin 19
R.1.Gen. Laws $12-7-3 (1996) o....cccccccccsssessssesssssssseessseeeeoeeeoeeses.a., 17
S.C. Code Ann. §17-13-30 (1997) o...cccccecccsesssssssosseossseeseeeecsoeecss.. 17
Utah Code Ann. §7707-2(3) ...cccccccccsssssecsssossssseesssesesveeeeeeeeeeeeeee.... 19
Va. Code Amn. 19.2-81 (1997 ...cccccccsccssesssussssssssseessscessveeeoeeoosec. 17
W.Va. Code $62-10-9 (1997) ooo cccccccccssessssseceseesee. jaiciacensuedes — 20
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Wy0.Stat. §7-2-102 (Supp. 1994) o....ccccccceccossessssessssesseseeeseeeeees... 19
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13. Illinois authorized full custodial arrests for ordinance violations
in People v. Edge, supra. In Wisconsin, full custodial arrests
for fine only violations are permitted only for offenses which
are committed in the presence of the officer. City of Milwaukee
v. Nelson, 149 Wis.2d 434, 457 439'N.W.2d 562, 571 (1989)
Indiana adheres to a modified “in the presence of" limitation,
Ind.Code.Ann. §35-33-1-1 and has long limited the power to
make arrests in ordinance violation cases to situations necessary
"to suppress riots and disorders in actual progress." Pow v.
Beckner, 3 Ind. 474, 478 (1852).

14. See Garner v. Tennessee, 471 U.S. 1, 14 (1985) (“while in
earlier times ‘the gulf between the felonies and the minor
offenses was broad and deep,’ [citations omitted], today the
distinction is minor and often arbitrary.")

15. One exhaustive study found only eight states that have sought to
authorize warrantless arrests for misdemeanors on the same
basis as for felonies. Schroeder, Warrantless Misdemeanor
Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 783
n.18 (1993).

=~ e

contemporary translations of the common law rule provide
strong evidence that respondent’s policy of using warrantless
custodial arrests to initiate prosecutions for violations of its
fine-only business ordinance is constitutionally unreasonable.

The most common limitation on an officer’s power to
make warrantless arrests for non-felonies is the requirement
that the offense has been committed "in the presence" of the
officer.'® Of the original thirteen colonies, only New York
has sought to authorize warrantless arrests for any offense,
whether or not committed in the officer’s presence, without
regard to any indicia of “breach of the peace"!”

Connecticut permits warrantless arrests for mis-
demeanors only when "the person arrested is taken or

16. Both the district court (Pet.App. 18) and the court of appeals
(Pet.App. 6) concluded that petitioner had violated the license
ordinance “in the presence” of the officers. Although this
conclusion may be literally correct, the common law
understanding of “in the presence of" required that the
wrongdoing be readily apparent to the officers. Pickett v. State,
99 Ga. 12, 25 S.E. 608, 609 (1896); The officers must see
something that is is "sufficiently indicative of a crime being in
the course of commission,” People v. Moore, 11 N.Y.2d 271,
272, 228 N.Y.S.2d 822, 823, 183 N.E.2d 225, 226 (1962);
United States v. Viale, 312 F.2d 595, 600 (2d Cir. 1963).
Respondent’s ordinance (App. 15-16) does not require display
of a business license; in this case, that petitioner did not have a
business license did not become readily apparent until petitioner
searched for, and could not locate, the license. (App. 65.)

17.N.Y. Crim. Pro. Law §140.10 (McKinney 1997) permits an
officer to make warrantless arrest for any offense “whether in
his presence or otherwise." The statute permits full custodial
arrests for minor traffic infractions. People v. Terrero, 139
A.D.2d 830, 831, 537 N.Y.S.2d 135, 136 (1988)

x

apprehended in the act or on the speedy information of oth-
ers."!® The “speedy information" provision prohibits a war-
rantless arrest 11 hours after the alleged offense. State v.
Carroll, 131 Conn, 224, 38 A.2d 798 (1944).

Delaware authorizes warrantless arrests for mis-
demeanors committed in the presence of the officer or in
situations which are a modern equivalent of “breach of the
peace." Under 11 Del.Code Ann. §1904 (1997), an arrest for
a misdemeanor may be made without warrant for offenses
committed out of the officer’s presence involving “physical
injury or the threat thereof... illegal sexual contact or
attempted sexual contact. . . violation of a protective order
issued by Family Court; or . . . misdemeanor occurring on
school property."

Georgia likewise has narrowly defined the situations in
which an officer may make a warrantless arrest for a mis-
demeanor not committed in his (or her) presence.
Ga.Code.Annot. §17-4-20 (1997) permits warrantless arrests
in cases involving “family violence," physical abuse of a
vulnerable adult, “or for other cause if there is likely to be
failure of justice for want of a judicial officer to issue a war-
rant."

In Maryland, warrantless arrests are only permitted for
offenses committed in the officer's presence or view.
Md.Ann.Code of 1957, Art. 27, §594B. Custodial arrests can
be made for ordinance violations only when “the defendant
has previously failed to respond to a summons for an offense
other than a non-moving traffic offense; or there is a substan-
tial likelihood that the defendant will not respond to a sum-
mons." Schaefer v. State, 31 Md.App. 437, 440, 356 A.2d

18. Conn. General Statute §54-1f(a)

~

617, 620 (1976).

With carefully enumerated exceptions for specific motor
vehicle violations, Mass.Ann.Laws. ch. 90, §21, Mas-
sachusetts follows the common law rule, permitting a war-
rantless arrest for a non-felony only when an offense is com-
mitted in the presence of the officer and involves a breach of
the peace. Commonwealth v. Baez, 42 Mass.App. 565, 678
N.E.2d 1335, 1338 (1997) Under this standard, an officer
may not make an arrest for driving with a defective
headlight. Jd. Nor may an officer make a warrantless arrest
for unlawful possession of an undersized lobster. Com-
monwealth v. Wright, 158 Mass. 149, 33 N. E. 82 (1893).

New Hampshire also enforces the "in the presence of"
rule, but has created two exceptions: one for cases involving
domestic violence and stalking, the other when the officer
"has probable cause to believe that the person to be arrested
has committed a misdemeanor or violation, and, if not
immediately arrested, such person will not be apprehended,
will destroy or conceal evidence of the offense, or will cause
further personal injury or damage to property. N.H. Rev.
Stat. Ann. §594:10 (1996)

New Jersey permits warrantless arrests for mis-
demeanors when three conditions are met: "(1) that the
offenses must have occurred ‘upon view’ of the arresting
officer and (2) that the offender was a disorderly person or
(3) was committing a breach of the peace." State v. Vonder-
fecht, 284 N.J.Super. 555, 557, 665 A.2d 1145, 1146 (1995).
As construed by the New Jersey Supreme Court, the statute
does not permit a warrantless arrest for littering. State v.
Hurtado, 113 N.J. 1, 549 A.2d 428 (1988), reversing on
dissent in 291 N.J.Super. 12, 23, 529 A.2d 1000, 1006
(1987).

North Carolina also retains the "in the presence of"
requirement, with two statutory exceptions: when the
offender "[w]ill not be apprehended unless immediately

= =

arrested, Or may cause physical injury to himself or others, or
damage to property unléss immediately arrested." N.C. Gen.
Stat. §15A-401 (1997).

Pennsylvania “has restricted the authority of police
officers to make warrantless arrests for crimes not committed
in their presence to a relatively narrow band of offenses. . .
police officers [in Pennsylvania] seem to possess an
extremely broad authority to arrest for some offenses that are
committed in their presence, even when these offenses are of
only the the most trivial sort, often not even crimes.
McCarthy, Warrantless Arrests in Pennslyvania, 92
Dick.L.Rev. 115, 130 (1987).

Rhode Island has abandoned the "in the presence of"
requirement, State v. Berker, 120 R.I. 849, 855, 391 A.2d
107, 111 (1978) but permits warrantless misdemeanor arrests
only when the officer "has reasonable ground to believe that
person cannot be arrested later or may cause injury to him-
self or herself or others or loss or damage to property unless
immediately arrested." R.I.Gen. Laws §12-7-3 (1996).

South Carolina authorizes warrantless arrests for
offenses committed "in view," provided that the arrest is
"made at the time of such violation of law or immediately
thereafter." S.C. Code Ann. §17-13-30 (1997).

Virginia adheres to the "in the presence" of requirement

for warrantless misdemeanor arrests. Va. Code Ann. 19.2-81
(1997. This requirement also appears in 41 federal statutes.'?

19. The statutes include 8 U.S.C. §1357, 16 U.S.C §3375, 16
U.S.C. $1172, 16 U.S.C. $1338, 16 U.S.C. §1377, 16 U.S.C.
§1540, 16 U.S.C. §1861, 16 U.S.C. §1a-6, 16 U.S.C. §5506, 16
U.S.C. §559c , 16 U.S.C. §668(b), 16 U.S.C. §670j , 16 U.S.C.
§690e, 16 U.S.C. §706, 16 U.S.C. §727, 16 U.S.C. §742j-1, 16
U.S.C. §831c-3, 16 U.S.C. §916(g), 16 U.S.C. §959, 16 U.S.C.
§971f, 16 U.S.C. §972g , 18 U.S.C. §3052 18 U.S.C. §3056 ,
18 U.S.C. $3061, 18 U.S.C. §3063 , 19 U.S.C. §1589a, 21

Many of the states without the common law history of
the original colonies have adopted different variations on the
the common law limitations on an officer’s right to make
arrests without warrant in non-felony cases. Hawaii does not
permit warrantless arrests for a motor vehicle violation that is
not a misdemeanor. State v. Vallesteros, 933 P.2d 632
(1997). Alaska permits an officer to make a warrantless
arrest for a non-felony only when "personal or property dam-
age is likely to be done unless the person is immediately
arrested," and "there is no known judicial officer empowered
to issue a warrant within a radius of 25 miles of the person
to be apprehended." Alaska Stat. §12.25.035.

New Mexico adheres to an "in the presence of" require-
ment for warrantless misdemeanor arrests, State v. Tywayne
H., 123 N.M. 42, 933 P.2d 251, 257 (1997) and requires that
"once an officer has the right to arrest without a warrant for a
misdemeanor or breach of the peace committed in his pres-
ence he must do so as soon as he reasonably can, and if he
delays for purposes disassociated with the arrest or for such a
length of time as to necessarily indicate the interposition of
other purposes, he cannot arrest without a warrant." State v.
Calanche, 91 N.M. 390, 393, 574 P.2d 1018, 1021 (1958).

Arizona authorizes warrantless arrests for misdemeanors
on probable cause, but also requires the arresting officer to
issue a complaint and notice in misdemeanor and petty
offense cases. 5A Ariz. Rev. Stat. § 13-3884, §13-3903;

U.S.C. §372, 21 U.S.C. §878, 22 U.S.C. §1978, 22 U.S.C.
§2709, 25 U.S.C. §2803, 26 U.S.C. §7608, 28 U.S.C. §566, 33
U.S.C. §452, 33 U.S.C. §466, 40 U.S.C. §212a , 40 USC.
§212a-2, 42 U.S.C. §2456a, 42 U.S.C. §7270a, 43 U.S.C.
§1733, and 49 U.S.C. §44903.

= ™

State v. Taylor, 167 Ariz. 439, 808 P.2d 324 (1991)

Oklahoma adheres to a strict "in the presence of"
requirement for misdemeanor cases, with statutory exceptions
for domestic abuse and driving while intoxicated. 22 Okl.St.
$196; Tomlin v. State, 869 P.2d 334, 338 (1994).

Utah also adheres to the “in the presence of" require-
ment, Salt Lake City v. Hanson, 19 Utah 2d 32, 34, 425 P.2d
773, 774 (1967), with exceptions for carefully delineated
emergency situations.””

Wyoming law is similar to that applied in Utah, requir-
ing that the offense has been committed "in the presence of"
the arresting officer or that there be a predefined emergency
situation, using the same list as in Utah. Wyo.Stat. §7-2-102
(Supp. 1994); Wyo.Stat. §31-5-1204(a); Nellis v. Wyoming
Department of Transportation, 932 P.2d 741, 744 (Wyoming
1997).

Idaho law also enforces the “in the presence of" require-
ment for warrantless misdemeanor arrests. State v. Bowman,
124 Idaho 936, 940, 866 P.2d 193, 197 (1994); Idaho Code §
19-603.

20. Utah Code Ann. §7707-2(3) provides for arrest without warrant
when the officer:

(3) ... has reasonable cause to believe the person has
committed a public offense, and there is reasonable cause for
believing the person may:

(a) flee or conceal himself to avoid arrest;

(b) destroy or conceal evidence of the commission of the
offense; or

(c) injure another person or damage property belonging to
another person.

In South Dakota, "an arrest for a misdemeanor must be
made upon a warrant, unless committed in the presence of
the arresting officer." State v. Spry, 87 S.D. 318, 327, 207
N.W.2d 504, 509 (1973). The same rule applies in North
Dakota. State v. Ritter, 472 N.W.2d 444, 447 (North Dakota
1996); N.D.C.C. §29-06-15

Montanta permits a warrantless arrest when an offense is
being committed or when the officer has probable cause to
believe that "the person has committed an offense and exist-
ing circumstances require immediate arrest." Mont. Code
Anno. §46-6-311 (1997). In State v. Jetty 176 Mont. 519,
579 P.2d 1228 (1978), the Montana Supreme Court held that
a person detained on a warrant for failure to pay an overdue
$1.00 parking ticket could not be subjected to a full custodial
search.

Colorado permits warrantless arrests, without the "in the
presence of" requirement, for misdemeanors, Garcia v. Peo-
ple, 160 Colo. 220, 416 P.2d 373 (1966), but not for minor
traffic infractions. People v. Barrientos, 1997 WL 703351
(Colo.App. 1997).

In Nebraska, “without an exigent circumstance, a police
officer may not arrest an individual for a misdemeanor unless
it is Committed in the officer’s presence." State v. Marcotte,
233 Neb. 533, 537, 446 N.W.2d 228, 232 (1989). The sta-
tute defines exigent circumstances as follows: “(a) will not
be apprehended unless immediately arrested; (b) may cause
injury to himself or others or damage to property unless
immediately arrested; (c) may destroy or conceal evidence
of the commission of such misdemeanor; or (d) has commit-
ted a misdemeanor in the presence of the the officer."
Neb.Rev.Stat. §29-404.02 (1997).

Nevada permits a warrantless arrest for any “public
offense" committed in the officer’s presence, and has relaxed

the “in the presence of” requirement for “a felony or gross
misdemeanor."! Nev.Rev.Stat. §171.124 (1997).

West Virginia adheres to the “in the presence of” stan-
dard. Simon v. West Virginia Department of Motor Vehicles,
181 W.Va. 267, 268, 383 S.E.2d 320, 321 (1989); W.Va.
Code §62-10-9 (1997).

Kansas expanded the "in the presence of" requirement in
1970, when it authorized warrantless misdemeanor arrests “in
certain emergency situations." State v. Flummerfelt, 235
Kan. 609, 612, 684 P.2d 363, 366 (1984); Kan.Stat.Ann.
22-2401 (1997).

At least 42 states continue to recognize some aspect of
the common law limitation on warrantless arrests in non-
felony cases. Schroeder, Warrantless Misdemeanor Arrests
and the Fourth Amendment, 58 Mo. L. Rev. 771, 783 n.18
(1993). The continued vitality of the common law limita-
tions on warrantless arrests in non-felony cases supports the
rule advanced by petitioner — that a warrantless arrest for
violation of a fine-only ordinance not involving any breach of
the peace is unreasonable under the Fourth Amendment.

-D-

In the district court, respondent sought to justify its
mandatory arrest policy because its officers do not carry ordi-
nance citation forms. When asked by respondent’s counsel
to explain the reason for the municipal policy, Commander

21. Under Nevada law, a misdemeanor is punishable by
imprisonment of not more than six months, or a fine of not
more than one thousand dollars. Nev.Rev.Stat. §193.150. The

penalties for a “gross misdemeanor" are imprisonment of up to

~ ome year or a fine of not more than two thousand dollars.

Nev.Rev.Stat. §193.140.

Fellmann answered as follows (App. 31):

Q. With regard to the local ordinance violation
policy of the Village of Arlington Heights with regard
to a business that does not have a Village of Arling-
ton Heights business license, can you state why those
persons are arrested?

A. For violation of that village ordinance.

Q. Why aren’t they just issued a ticket, do you
know?

A. We have no instrument designed for citing
them in the field. I mean, the manner in which our
department is structured is that the complaint is
prepared on a document at our station and bond is
required if this is a bondable offense.

It would not be difficult for respondent to create an
ticket book to issue field citations. Such an innovation would
be neither new nor novel.” Instead, a ticket book for viola-
tions of the business license ordinance could be the same
ticket book used by respondent’s police officers to issue

22. For example, Calif. Penal Code §853.5 (1997) provides as
follows

In all cases . . . in which a person is arrested for an infraction,
a peace officer shall only require the arrestee to present his
driver's license or other satisfactory evidence of his identity
for examination and to sign a written promise to appear. Only
if the arrestee refuses to present such identification or refuses
to sign such a written promise may the arrestee be taken into
custody.
The Ninth Circuit relied on this “expression of disinterest in
allowing warrantless arrests for mere infractions” to hold “that a
custodial arrest for such an infraction is unreasonable, and thus
unlawful, under the Fourth Amendment.” United States v. Mota,
982 F.2d 1384, 1389 (9th Cir. 1993).

3.

parking tickets.

Respondent’s policy of requiring the warrantless arrest
of persons suspected of operating a business without a
license cannot be justified by any need for emergency action
when, as here, the alleged offender operates his business
from a fixed address and the officers knew for at least two
days before making the arrest that petitioner had not been
issued a license. (App. 49.)

Nor can respondent’s policy be sustained because it is
necessary “to prevent [petitioner] from committing a mis-
demeanor which would have been a breach of the peace had
the attempt been translated into action." Stone, Arrest
Without Warrant, 1939 Wis.L.Rev 385 (1939). There is no
suggestion in the record that operating an otherwise lawful
business threatened the public peace.

Finally, respondent’s municipal policy cannot be
defended as necessary to initiate the prosecution for an ordi-
nance violation. Persons charged with the fine only ordi-
nance are neither fingerprinted nor photographed. (App. 38.)
The only paperwork required to initiate a prosecution for an
ordinance violation is a complaint which need be no different
than a parking ticket.

In addition to the administrative convenience rationale it
advanced in the district court, respondent may seek to uphold
its municipal policy on the ground articulated by the Seventh
Circuit and argue that a custodial arrest is necessary "in order
to ensure compliance with the ordinance." (Pet.App. 7.) This
theory was embraced by the Ohio Supreme Court in White v.
Kent, 11 Ohio St. 550 (Ohio 1860) when it upheld a local
ordinance that prohibited auction sales on the public way:

It is evident that many ordinances necessary for good
order and general convenience, as well as for the
preservation of morals and decency, would be almost
nugatory, if offenders could only be arrested upon

warrant. Such is clearly not the policy of the statute.
11 Ohio St. at 553.

Other jurisdictions rejected this rationale long ago,
because “it is to all intents and purposes a separate and
independent punishment for the offenses specified," Judson v.
Reardon, 16 Minn. 431, 434 (1871) and because vesting
officers with such power is “liable to great abuses." Pow v.
Beckner, 3 Ind. 474, 478 (1852). The record in this case
leaves no doubt about the potential for abuse — Officer
Lehnert revealed that the officers were enforcing the business
license ordinance “based on numerous complaints that our
department had received in conjunction with [petitioner’s]
business." (App. 55.) Although none of the complaints pro-
vided a lawful basis for interfering with petitioner’s business,
the officers were able to summarily punish petitioner by
exploiting respondent’s full custodial arrest policy.

The central purpose of the Fourth Amendment was to
curb the discretion vested by "general warrants: that placed
"the liberty of every man in the hands of every petty officer."
Boyd v. United States, 116 U.S 616, 625 (1886), quoting the
remarks of James Otis. This is precisely the result of the
rule adopted by the Seventh Circuit in this case.

Requiring full custodial arrests to compel compliance
with a fine only ordinance imposes significant costs on the
person arrested. An arrest — even one “to ensure compli-
ance" — "is abrupt, is effected with force or threat of it, and
often in demeaning circumstances." United States v. Dion-
isio, 410 U.S. 1, 10 (1973). “An arrest is a public act that
may seriously interfere with the defendant's liberty, whether
he is free on bail or not, and that may disrupt his employ-
ment, drain his financial resources, curtail his associations,
subject him to public obloquy, and create anxiety in him, his
family, and his friends." United States v. Marion, 404 U.S.
307, 320 (1971).

- 23 -

In this case, respondent exploited the trauma of arrest
"to stop the telemarketing firm from causing the kind of
complaints you had received about them." (App. 25.) The
police adopted this goal because petitioner’s firm "was nega-
tively reflecting upon the image of the department.” /d.
These totalitarian tactics undercut the role of the Fourth
Amendment of preserving "one of the most fundamental dis-
tinctions between our form of government, where officers act
under the law, and the police state where they are the law."
Johnson v. United States, 333 U.S. 10, 17 (1948).

Respondent’s use of its mandatory arrest policy because
petitioner’s firm "was negatively reflecting upon the image of
the [police] department," (App. 25), exemplifies the "arbitrary
and discriminatory enforcement" that underlies the decision
of the Florida Supreme Court to prohibit full custodial arrests
for violation of a municipal ordinance requiring that all bicy-
cles be equipped with gongs. Thomas v. State, 614 So.2d
468, 470-71 (Fla. 1993).

The lack of any legitimate justification for respondent's
mandatory arrest policy is made plain by a comparison with
the efficient citation procedure employed in California. There,
"[wJhen an adult is arrested for an infraction (with the excep-
tion of a few specified Veh.Code violations), the arresting
officer requires that the person present a driver’s license or
other satisfactory evidence of identification and sign a prom-
ise to appear. Only if the person refuses to present
identification or to sign the promise to appear can he or she
be taken into custody." In re Rottanak K., 37 Cal.App.4th
260, 276, 43 Cal.Rptr.2d 543, 552 (1995). "[WJhen an adult
is arrested for a misdemeanor and does not demand to be
taken before a magistrate, he or she must be released once
the arresting officer has prepared a written notice to appear in
court and the arrestee has given a written promise to appear
as specified in the notice, unless the officer makes special
findings." Jd.

-_ *

There is no legitimate basis to vest policy officers with
the authority to make full custodial arrests "in order to ensure
compliance with the ordinance." This unregulated power
makes the arresting officer the prosecutor and judge in a
summary prosecution for an alleged violation of a fine-only
ordinance. As this Court observed in Wong Sun v. United
States, 371 U.S. 471 (1963), "[t]he history of the use, and not
infrequent abuse, of the power to arrest cautions that a relax-
ation of the fundamental requirements of probable cause
would ‘leave law-abiding citizens at the mercy of the
officers’ whim or caprice,"" quoting Brinegar v. United
States, 338 U.S. 160, 176 (1949). Those who framed the
Fourth Amendment would be appalled that a federal court
had endorsed warrantless seizures "to ensure compliance"
with an ordinance punishable by fine only.

-lll-

The appropriate translation of the common law limita-
tions on warrantless arrests in non-felony cases to fine-only
infractions is that a custodial arrest is constitutionally unrea-
sonable unless there is an actual or threatened breach of the
peace: the Fourth Amendment should not be warped to per-
mit arrests "to ensure compliance" with a fine-only ordinance.

The Seventh Circuit expressed the view that petitioner
had been lawfully arrested because "a neutral magistrate fol-
lowing Illinois law would surely have issued a warrant in the
case." (Pet.App. 8 n.l.) This view greviously misconceives
the warrant clause: “Any assumption that evidence sufficient
to support a magistrate’s disinterested determination to issue
a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity

27.

and leave the people’s homes secure only in the discretion of
police officers."*? Johnson v. United States, 333 U.S. 10, 14
(1947).

The framers “after consulting the lessons of history,
designed our Constitution to place obstacles in the way of a
too permeating police surveillance." United States v. DiRe,
332 U.S. 581, 595 (1948). Respondent’s mandatory arrest
policy resurrects the roving commission of the general war-
rants that were vilified by the framers and cannot stand.

CONCLUSION

It is therefore respectfully submitted that the decision of
the Court of Appeals should be reversed and the case
remanded to the district court.

February, 1998
KENNETH N. FLAXMAN
122 South Michigan Avenue
Suite 1850
Chicago, Illinois 60603
Attorney for Petitioner

23. Because respondent’s policy did not include any involvement by
a judicial officer, this case does not present any question about
whether a judge, consistent with the Fourth Amendment, could
issue an arrest warrant for violation of a fine-only ordinance. Cf.
Pulliam v. Allen, 466 U.S. 522 (1984) (upholding fee award
against local magistrate after injunction to end magistrate’s
practice of incarcerating persons unable to post bail on fine-only
offenses).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0125%3A05. Public record. Not legal advice.