Respondents Brief — Ricci v. Village of Arlington Heights

| Supreme Court of the United State:

October Term, 1997 - ;

@

RANDALL RICCI,

Petitioner,

Vv.

VILLAGE OF ARLINGTON HEIGHTS,

A MUNICIPAL CORPORATION,

re Respondent.

‘e 2

Es On Writ Of Certiorari To The

f United States Court Of Is

For The Seventh Circuit

ol rs

BRIEF FOR THE RESPONDENT

2: Daviw A. Strauss

% Counsel of Record

he 1111 East 60th Street

‘ , IL 60637

¥ Jerrrsy Epwarp Ken

Yeuton & Kem, Lrv.

One East Wacker Drive

IL 60601 |

my h (312). 832-9255

QUESTION PRESENTED

Whether an arrest that is supported by probable

cause is per se unreasonable under the Fourth Amend-

ment solely because the underlying offense is punishable

by a fine and not by incarceration.

TABLE OF CONTENTS

Page

Question Peesemted .....scccsccceccstuuannueneene i

Table of Awlhorblles .....cccssessccuseusueeeeneunee iii

er 1

Summary Of Argument ......cccsscnssccsssceesenen 6

Argument:

AN ARREST SUPPORTED BY PROBABLE CAUSE

DOES NOT VIOLATE THE FOURTH AMEND-

MENT MERELY BECAUSE THE UNDERLYING

OFFENSE IS PUNISHABLE ONLY BY A FINE... 8

A. An Arrest That Is Based On Probable Cause

And Is Reasonable In Manner And Duration

Satisfies The Fourth Amendnient ............ 8

B. A Per Se Constitutional Limit On The Power To

Arrest For “Minor” Offenses Would Seriously

Undermine Important Law Enforcement Objec-

VES 2. cccccccveccccesseesess supe nEME—EEEEE 14

1. Stationhouse arrests for “minor” of-

fenses serve important law enforcement

DUSPOOGS. 2... ccc cccdcvecescevccnsuceess 15

2. A nationwide constitutional limit on

arrests for fine-only offenses is both

unnecessary and harmful in view of the

valuable diversity of approaches among

Fs ee” 25

3. Effective police work against so-called

minor offenses is a crucial law enforce-

mem priogity ......cecsessssenasshaunan 32

C. Traditional Common Law Limitations, To The

Extent They Are Incorporated In The Fourth

Amendment, Do Not Invalidate The Arrest In

1) B® Wee 37

Comcbeshem oo. ccccescccccesceusheeuen ne 49

TABLE OF AUTHORITIES

Page

Cases:

Allen v. City of Portland, 73 F.3d 232 (9th Cir. 1995) .... 41

Bad Elk v. United States, 177 U.S. 529 (1900)...... 40, 47

Berkemer v. McCarthy, 468 U.S. 420 (1984)............ 19

Bundy v. State, 455 So.2d 330 (Fla. 1984, cert.

denied, 476 U.S. 1109 (1986)........... 6.6660 ee eee 18

Cady v. Dombrowksi, 413 U.S. 433 (1973)............. 11

Carroll v. United States, 267 U.S. 132 (1925).......... 39

County of Riverside v. McLaughlin, 500 U.S. 44

ES Ee Ne PPT TTT CITT ELLE CC OOLe 30, 45

Fields v. City of South Houston, 922 F.2d 1183 (5th

SPER bree eabeecehseeesorcosccccccescss 42

Fisher v. Washington Area Metropolitan Transit

Authority, 690 F.2d 1133 (4th Cir. 1982)............ 42

Florida v. Jimeno, 500 U.S. 248 (1991) ................ 14

Gerstein v. Pugh, 420 U.S. 103 (1975) .......... 8, 23, 41

Higbee v. City of San Diego, 911 F.2d 377 (9th Cir.

CG h idee eeseseecessoececccoccccecs 42, 46

Illinois v. Lafayette, 462 U.S. 640 (1983) .............. 10

Johnson v. United States, 333 U.S. 10 (1948) ....... 29, 41

Kurtz v. Moffitt, 115 U.S. 487 (1885).............. 40, 47

Maryland v. Wilson, 117 S. Ct. 882 (1997)......... 22, 31

Michigan v. Summers, 452 U.S. 692 (1981)............ 22

Ohio v. Robinette, 117 S. Ct. 417 (1996) ....... 14, 28, 31

Parke v. Raley, 506 U.S. 20 (1992)......... 6.666 e ee ee. 18

iv

TABLE OF AUTHORITIES - Continued

Page

Payton v. New York, 445 U.S. 573 (1980) ........ 8, 9, 45

Pennsylvania v. Mimms, 434 U.S. 106 (1977).......... 31

People v. Datacom Systems Corp., 585 N.E.2d 51 (Ill.

BE. co ccxcenceebncnintendndsccsazsasdenbiusesnas 44

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974)........ 42

Tennessee v. Garner, 471 U.S. 1 (1985).......... 8, 23, 45

Terry v. Ohio, 392 U.S. 1 (1968)... . 2.2.6.6 e cece eee eee 11

United States v. Robinson, 414 U.S. 218 (1973)........ 44

United States v. Sharpe, 470 U.S. 675 (1985) ....... 11, 20

United States v. Smith, 73 F.3d 1414 (6th Cir. 1996) .... 42

United States v. Watson, 423 U.S. 411 (1976)

scceccedéseticbbuedeendsessuuouseel 8, 23, 41, 45, 47

Welsh v. Wisconsin, 466 U.S. 740 (1984)........ 8, 19, 38

Whren v. United States, 116 S. Ct. 1769 (1996)..9, 31, 44

Wilson v. Arkansas, 514 U.S. 927 (1995) .............. 45

CONSTITUTION, STATUTES, AND ORDINANCES:

U.S. Constitution, Amendment IV............... passim

GB DOE. Tic bivsic kccbiabedwcddcccessccosscticsccnns 3

Cab. Famed Gate 6 GG cc cccccvceccccccsesecessasas 26

Tree Tr rT 17

Illinois Supreme Court Rule 526(a).................. 16

Illinois Supreme Court Rule 528 .................... 17

Vv

TABLE OF AUTHORITIES - Continued

Arlington Heights, Village of, Municipal Ordi-

nances:

I ae

Page

vi

TABLE OF AUTHORITIES - Continued

Page

ee 35

DD hdc dvccddcccdivvccestccdedecensencanseas 35

I odbc concccecuséscccnceceduckpecdesecaian 35

ED a Sdccnccdcccesacccnusceuccenadaccneoncey 37

fh PP acacancetkucusccecusececssanssqnsceness 35

PE becdtuccccdccsiatbadeeesedunvnsdboumhens 35

MISCELLANEOUS:

ALI Model Code of Pre-Arraignment Procedure ..... 47

Blackstone, William, Commentaries on the Laws of

BES oc ccccccccccccccesccccesesecccesces 15, 39, 43

Braun, Stephen, Trooper's Vigilance Led to Arrest of

Blast Suspect, LA Times Al (Apr. 22, 1995)........ 18

Fisher, Edward, Laws of Arrest (1967)......... 38, 40, 46

Hawkins, William, A Treatise of Pleas of the Crown

CPOE ccnpediccuccccdbadsdenscccedenascsoseuned 38, 39

Kahan, Dan M. Social Influence, Social Meaning, and

Deterrence, 83 U. Va. L. Rev. 349 (1997) ........... 32

Kelling, George and Catherine M. Coles, Fixing

Broken Windows: Restoring Order and Reducing

Crime in Our Communities (1996)............... 32, 34

LaFave, Wayne R., Search and Seizure: A Treatise on

the Fourth Amendment (3d ed. 1996)........ 42, 46, 49

Salken, Barbara C., The General Warrant of the

Twentieth Century? A Fourth Amendment Solution

to Unchecked Discretion to Arrest for Traffic

Offenses, 62 Temple L. Rev. 221 (1989)............. 45

Vii

-_—_

TABLE OF AUTHORITIES - Continued

Page

Schroeder, William A., W.avrrantless Misdemeanor

Arrests and the Fourth Amendment, 58 Mo. L. Rev.

RRR Sa EEA ee se Ge ae ee 46

Skogan, Wesley G., Disorder and Decline (1990) ...32, 33

Stephen, James Fitzjames, A History of the Criminal

Law of England (1883)...............cccceeeeees 39, 43

Wilgus, Horace, Arrest Without A Warrant, 22

Mich. L. Rev. 541, 673 (1923-24)........ 21, 33, 45, 49

1

STATEMENT

1. An ordinance adopted by the Village of Arlington

Heights, Illinois, makes it “unlawful for any person to

conduct, engage in, maintain, operate, carry on or man-

age a business” within the Village “without first having

obtained a license for such business” (Section 9-201; see

].A. 16).! A violation of the ordinance was, at the time of

the events in this case, punishable by a fine of up to

$500.00 for “each day during or on which a violation

occurs or continues” (J.A. 16).

On April 19, 1994, two Arlington Heights police offi-

cers executed an arrest warrant at the business premises

of a telemarketing firm named Rudeway Enterprises. The

warrant named one Daniel Dugo, who was employed by

Rudeway Enterprises. Pet. App. 12; J.A. 49, 61-62. The

Arlington Heights Police Department had previously

received complaints that Rudeway Enterprises used

“high pressure” telemarketing tactics and represented

itself as authorized to solicit on behalf of the Arlington

Heights Police Department. J.A. 20, 18-19. Before execut-

ing the warrant at the premises of Rudeway Enterprises,

the Arlington Heights officers had determined that no

business license had been issued for that firm. See J.A. 22,

37.

! Section 9-201 applies to any business “for which a license

is required.” Section 14-3001, at the time of petitioner's arrest,

required a license for “[t]he places of business hereinafter

enumerated in Section 14-3002” (J.A. 15); Section 14-3002 listed

a number of businesses specifically and then “[a]ny and all

business enterprises not named elsewhere in this Code.” J.A. 16.

Petitioner argued below that he was not required to have a

license, but the district court rejected that argument (Pet. App.

15) and petitioner has not challenged that ruling.

2

After arresting Dugo pursuant to the warrant, the

officers interviewed petitioner, who owns Rudeway

Enterprises and who was on the premises at the time. Pet.

App. 2. Petitioner told the officers that Rudeway was a

telephone solicitation business. J.A. 64.2 When petitioner

was unable to produce an appropriate license, the officers

told him that he was in violation of the Village ordinance

and that he would be issued a citation at police headquar-

ters. J.A. 65. Officer Whowell, who had primary respon-

sibility for the case, explained his exchange with

petitioner as follows (J.A. 65-66):

I told him that based on the village ordi-

nance requirement I requested that he accom-

pany me to the Arlington Heights Police

Department and I explained to him the pro-

cedure [t]hat was going to take place, that fact

that he would be issued a citation.

* * *

I indicated to him that [] specifically that he

would be issued a citation for not having a

village license. I indicated to him that we would

need to go to the police department to do that. I

asked him if he was in a position to accompany

me there, and he indicated that he was. And

that’s when he was escorted back to the police

department.

The officer subsequently explained that he took petitioner

to the police station because “our department policy does

not allow us to take any type of monetary bond or to

issue a recognizance bond on the street. That has to be

2 It is not clear from the record how many employees

Rudeway had at the time of petitioner’s arrest. Six months

earlier the firm had 20 employees. Ricci Dep. 11. (“Ricci Dep.”

refers to petitioner’s deposition.)

3

done at the police department.” J.A. 66. Petitioner was

not handcuffed. J.A. 66; Ricci Dep. 32.

At the station, the arresting officers completed an

arrest report, a citation, and a bond receipt. J.A. 69.

Petitioner was photographed, but he was not finger-

printed. J.A. 38. The arresting officer asked the Sergeant

on Duty to release petitioner on a recognizance bond, and

the Sergeant agreed to do so. J.A. 73. While this process

was being completed, petitioner remained in an interview

room. J.A. 68. After the officers completed the necessary

forms, petitioner was released on a recognizance bond.

He was detained for a total of approximiately one hour.

J.A. 41-42; Pet. App. 12.

After his arrest, petitioner’s wife obtained a Village

license for the firm. Pet. App. 12. Because he had a valid

license at the time of his appearance in court, the charges

against him were dismissed. Pet. App. 12.

2. Petitioner then brought this action under 42

U.S.C. 1983 in the United States District Court for the

Northern District of Illinois, seeking damages from both

the Village and the officers. Petitioner alleged that his

arrest violated the Fourth Amendment; that the arrest

was made pursuant to a Village policy that violated the

Fourth Amendment; and that Officer Whowell had con-

ducted an unlawful search. The district court denied the

defendants’ motion for summary judgment on the count

pertaining to the allegedly unlawful search, but noted

that “[t]he only evidence” of an unlawful search was

petitioner’s claim, denied by Officer Whowell, that the

officer “pick[ed] up and inspect[ed] a 3x5 index card off a

desk” (Pet. App. 13). The district court ruled that peti-

tioner had shown no compensable injury in connection

with the search (id. at 14).

4

The district court granted summary judgment to all

defendants on all issues related to petitioner’s arrest. Pet.

App. 15-19. The court specifically rejected petitioner's

claim that his arrest violated the Fourth Amendment. The

court ruled that Arlington Heights ordinances forbade

petitioner to operate a telemarketing business without a

license, and noted that “[t)]he officers observed [peti-

tioner] committing this unlawful act.” Pet. App. 15-16.

Accordingly, the district court held, the officers had prob-

able cause to arrest petitioner. Pet. App. 16.

The district court then rejected petitioner’s argument

that the Village violated the Fourth Amendment by

adopting a policy requiring what petitioner termed “full

custodial arrests” for violations of the business license

ordinance. Pet. App. 16. The district court noted that the

Fourth and Ninth Circuits had both rejected arguments

that the Fourth Amendment prohibits law enforcement

officers, acting with probable cause, from arresting a

person who has committed a misdemeanor. Pet. App.

16-17. The district court also ruled that even if the Fourth

Amendment’s requirement of reasonableness “incorpo-

rate[d] * * * the common law rule requiring an officer to

witness a misdemeanor before arresting someone for it,”

the arrest of petitioner would still have been lawful

because petitioner “committed his offense * * * in the

presence of [the ojfficers” (Pet. App. 18).

The claim pertaining to the unlawful search was sub-

sequently settled, and that count of the complaint was

dismissed. Pet. App. 3; J.A. 2. Petitioner did not appeal

the grant of summary judgment in favor of the officers.

Pet. App. 3.

3. The court of appeals affirmed the grant of sum-

mary judgment in favor of the Village. Pet. App. 1-9. The

— —— —EE

5

court of appeals first noted that, as the district court had

said, petitioner’s arrest “comports with the common law

rule” because petitioner had “committed the offense in

the officers’ presence.” Pet. App. 6. The court rejected

petitioner’s argument that the Village also had to show

that the offense constituted a breach of the peace, noting

that “the common law rule has been relaxed to include

offenses other than breaches of the peace.” Pet. App. 6.

The court then reviewed the circumstances of peti-

tioner’s arrest and held that the officers’ conduct was

reasonable. Pet. App. 7. The court explained that, because

fines under the Village’s ordinance accrue daily, “[b]y the

time he was arrested, [petitioner] was facing a potential

fine of tens of thousands of dollars.” Pet. App. 7. In

addition, the court explained, petitioner “admitted to the

officers that he was currently violating the [ordinance,]”

and “[t]he officers held him for only one hour, the length

of time it took to process the paperwork associated with

the arrest.” Pet. App. 7. The court concluded that “[w]e

cannot call such an arrest unreasonable for Fourth

Amendment purposes.” Pet. App. 7.

The court of appeals “decline[d] to set a per se rule”

that the Fourth Amendment bars all arrests for

“offense[s] punishable by fine only, where the offense

does not constitute a breach of the peace.” Pet. App. 7, 5.

The court of appeals noted that the reasonableness

requirement of the Fourth Amendment ordinarily

requires an assessment of the particular facts of each case,

and that when the police have probable cause to arrest a

3 According to petitioner’s deposition, his firm had been

operating in Arlington Heights since October 1993. Ricci Dep.

10.

6

suspect, the arrest is reasonable in the absence of

“extraordinary” circumstances. Pet. App. 7-8. The court

specifically refusea to consider petitioner’s argument that

the arrest violated the Warrant Clause of the Fourth

Amendment, holding that petitioner had “waived this

argument by not addressing it in his brief.” Pet. App. 8.

SUMMARY OF ARGUMENT

A. Petitioner’s arrest was based on probable cause.

It was carried out in a reasonable manner, and it was not

excessive in duration. The Fourth Amendment requires

no more than that. This Court has never invalidated an

arrest, based on probable cause, in these circumstances.

B. A per se rule restricting arrests for “minor”

offenses would be unworkable, and is in any event

unnecessary.

1. The rule petitioner advocates would force offi-

cers, acting with probable cause, either to release suspects

with a citation — thus increasing the chances that they will

abscond — or to assess and collect a bond on the scene of

the arrest, something that officers in the field are ill-

equipped to do. Among other things, individuals arrested

for minor crimes can have records that include far mare

serious offenses, and officers in the field will not rou-

tinely have access to that information.

In addition, an arrest is often needed to maintain

control of a dangerous situation, which can develop

whenever the police encounter a suspect on the street —

even if the charge against the suspect is for a relatively

minor crime.

2. The profusion and variety of state laws govern-

ing arrests for misdemeanors and fine-only offenses

shows that this Court's intervention is not needed. States

$e ee

7

have addressed this issue in ways that suit their particu-

lar circumstances. Moreover, the complexity of many

state schemes is the best evidence that a simple per se

rule, applied nationwide as a matter of constitutional law,

is not appropriate. In addition, police officers have no

incentive to create additional paperwork for themselves

by arresting people unnecessarily for minor offenses. The

possibility that arrests will be made pretextually or for

purposes of harassment is poorly addressed by an across-

the-board rule of the kind petitioner advocates.

3. Petitioner’s implicit denigration of the impor-

tance-of-enforcing laws against “minor” offenses flies in

the face of both social science and the realities of law

enforcement, especially in urban areas. The effective

enforcement of misdemeanors and fine-only offenses -

something that cannot be accomplished if the police are

limited to handing out frequently-ignored citations — is

one of the most powerful tools in maintaining stable and

safe urban communities.

C. The common law background of the law of arrest

does not support petitioner’s claim. It has always been

understood, both in England and in this country, that the

common law of arrest can be modified by statute. In any

event, the traditional limits on arrests for misdemeanors

have survived in this country only to the extent that they

require the offense to have occurred in the presence of the

arresting officer. Petitioner’s offense did occur in the

presence of the officers who arrested him.

8

ARGUMENT

AN ARREST SUPPORTED BY PROBABLE CAUSE

DOES NOT VIOLATE THE FOURTH AMENDMENT

MERELY BECAUSE THE UNDERLYING OFFENSE IS

PUNISHABLE ONLY BY A FINE.

A. An Arrest That Is 8ased On Probable Cause And Is

Reasonable In Manner And Duration Satisfies The

Fourth Amendment.

1. In more than 200 years, this Court has never

invalidated an arrest that was based on probable cause.

See United States v. Watson, 423 U.S. 411, 417-18 (1976),

quoting Gerstein v. Pugh, 420 U.S. 103, 113 (1975). “A

police officer may arrest a person if he has probable cause

to believe that person committed a crime.” "ennessee v.

Garner, 471 U.S. 1, 7 (1985). When officers enter a dwell-

ing in order to effect an arrest, the Court has held that a

warrant, as well as probable cause, is ordinarily needed.

See Payton v. New York, 445 U.S. 573 (1980); Welsh v.

Wisconsin, 466 U.S. 740 (1984). But the warrant is required

because of “the breach of the entrance to an individual's

home” (Payton, 445 U.S. at 589) - not because of the

arrest. When police officers are in a place where they

have a right to be, the Court has never required more

than probable cause to sustain an arrest.

In such circumstances, “a policeman’s on-the-scene

assessment of probable cause provides legal justification

for arresting a person suspected of crime, and for a brief

period of detention to take the administrative steps inci-

dent to arrest.” Gerstein, 420 U.S. at 113-14. That, of

course, describes exactly what the Arlington Heights offi-

cers did in this case. “Where probable cause has existed,”

the Fourth Amendment is offended only by “seizures

ee =

9

conducted in an extraordinary manner, unusually harm-

ful to an individual’s privacy or even physical interests.”

Whren v. United States, 116 S.Ct. 1769, 1776 (1996).

2. The courts below determined that the police offi-

cers’ conduct in this case - far from being “extraordin-

ary” or “unusually harmful” to petitioner’s legitimate

interests - was fully reasonable. Pet. App. 7, 16-17. The

officers who arrested petitioner had probable cause to

believe him guilty of an offense. Indeed they were, for all

practical purposes, certain of his guilt, on the basis both

of evidence they themselves had seen and of petitioner's

admissions. Petitioner was facing a substantial fine. An

individual on his business premises, whom petitioner

employed, had just been arrested on a valid arrest war-

rant.*

The officers never handcuffed petitioner. There is no

indication in the record that he was either patted down or

searched, or that the business premises were searched

incident to arrest.5 Petitioner’s account of his arrest is as

follows (Ricci Dep. 31):

[The officer] told me that he didn’t think |

had [a license] and that they were going to bring

me down to the station to see if | had one and if

I didn’t have one they weren't arresting me,

they were going to help me take the measures to

get one.

* Petitioner does not dispute the lawfulness of the officers’

entry of his business property, which was based on the arrest

warrant. See Payton, 445 U.S. at 602-03.

5 Petitioner asserted, and the officers denied, that one of

the officers looked at a single index card. Pet. App. 13. Petitioner

did not assert that the officers searched his person or his

business premises in any other way.

10

Petitioner stated that the officers never told him he was

under arrest (Ricci Dep. 38), and petitioner, according to

his own testimony, did not realize he was under compul-

sion to go to the station (Ricci Dep. 32). Indeed petitioner

testified that he did not realize he was under arrest until

shortly before he was released (Ricci Dep. 38). The offi-

cers detained petitioner for approximately one hour, the

amount of time needed to complete the necessary paper-

work. Nothing in this series of events remotely exceeds

the bounds of ordinary, prudent police work, and both

lower courts so held.

Petitioner repeatedly characterizes the officers’

actions as a “full custodial arrest” (e.g., Pet. Br. 3, 4, 5, 24,

26) and urges that the Fourth Amendment forbids such

an arrest in the circumstances presented here. But it is

unclear what petitioner means by the term “full custodial

arrest” and which aspect of the officers’ conduct peti-

tioner finds unreasonable within the meaning of the

Fourth Amendment. Petitioner was not place in a jail or a

holding cell. He was not subjected to an inventory search

of the kind that is permitted when suspects are incarcer-

ated. See Illinois v. Lafayette, 462 U.S. 640 (1983). He was

not fingerprinted. J.A. 38. He was held in an interview

room of the sort that is used by Arlington Heights police

for members of the public who are not accused of crimes

- such as witnesses and victims — while they wait at the

station. See J.A. 32. Indeed, in his deposition, petitioner

described the room in which he was held as “some kind

of waiting room or something” (Ricci Dep. 33). In no

other respect was he subject to physical restraint. Peti-

tioner was released as soon as the needed paperwork was

completed.

11

It appears that petitioner’s objection is that the offi-

cers should not have transported him to the station but

should instead have issued him a citation at his place of

business. See Pet. Br. 25; see also ACLU Am. Br. 10 (“The

police did not do anything at the stationhouse that they

could not have done at petitioner’s place of business.”).

But the Fourth Amendment surely does not require offi-

cers to process paperwork and issue a bond on the scene

of an arrest, in surroundings that are unfamiliar and

unpredictable. This is especially true when the Village

has a consistent policy of bringing arrestees to the station,

a policy based on the obviously legitimate interest in

having bond applications processed - and a cash bond

collected, if one is required - only by a supervisory

officer at the station, rather than by officers in the field.

Nor — as we explain later — can the Fourth Amendment

possibly be interpreted to require police officers who

have apprehended an offender on probable cause auto-

matically to release him with no bond or security that he

will appear, merely because the offense is not punishable

by incarceration. See pages 32-36 below.

Even in the context of a so-called Terry stop - a

seizure not based on probable cause (see Terry v. Ohio, 392

U.S. 1 (1968)) — the Court has refused to adopt a rule

requiring the police to use the least restrictive means of

accomplishing their objective. See United States v. Sharpe,

470 U.S. 675, 687 (1985). “ ‘[T]he fact that the protection of

the public might, in the abstract, have been accomplished

by “less intrusive” means does not, in itself, render the

[seizure] unreasonable.’” Ibid., quoting Cady v. Dom-

browski, 413 U.S. 433, 447 (1973). For Fourth Amendment

purposes, the only question is whether the officers’ con-

duct was “diligent and reasonable” (Sharpe, 470 U.S. at

12

687) — a standard that the officers here clearly met. If a

“least restrictive means” standard is inappropriate when

officers are seizing a person without probable cause, then

a fortiori there is no basis for such a rule when the officers

have probable cause. In any event, even if such a rule

were to apply, petitioner cannot explain why any action

taken by the Arlington Heights officers was gratu-

itous.

3. Petitioner nonetheless asserts that the Fourth

Amendment requires a per se rule forbidding actions like

those taken by the officers in this case. But as petitioner

and his supporting amici themselves demonstrate, and as

we discuss more fully below (see pages 25-29), states

have adopted a variety of different limitations on the

power to arrest for misdemeanors and fine-only offenses;

some states have allowed more flexibility to officers than

others. There is no reason to homogenize all of these

varied solutions into a single federal constitutional rule.

Indeed, petitioner and his supporting amici disagree

among themselves about what the per se rule should be.

Petitioner at one point calls for a rule “prohibiting war-

rantless arrests in misdemeanor cases that do not involve

a breach of the peace[.]”© The court of appeals, however,

held that petitioner waived the argument that the lack of

a warrant was the fatal defect in his arrest (Pet. App. 8),

and petitioner does not at any point in his petition or

merits brief attempt to explain why that ruling was mis-

taken.” So petitioner’s position must be taken be that “a

© This quotation is taken from the first question presented

in petitioner’s brief. That page is not numbered.

7 Although petitioner’s court of appeals brief twice uses

the adjective “warrantless” to describe his arrest, petitioner

13

full custodial arrest for a fine-only ordinance violation

not involving a breach of the peace is contrary to the

Fourth Amendment” (Pet. Br. 4) - which is how petitioner

himself characterizes the position he asserted in the

courts below.

One amicus, however, would permit arrests in a

wider variety of circumstances, calling for a rule forbid-

ding “full custody arrests for violations of fine-only ordi-

nances not involving a breach of the peace or a threat to

public health or safety” (NACDL Am. Br. 3; emphasis

added)® - an elastic category that, according to the

amicus itself, includes “ ‘quality of life’ laws” (id. at 14)

and that could plausibly be interpreted to cover the ordi-

nance at issue here, a licensing law designed to ensure

the safety of business premises and to prevent fraud and

abuse. Another amicus would forbid arrest “for fine-only

offenses in the absence of exigent circumstances” (ACLU

Am. Br. 3) —- a category that the amicus vaguely defines as

“potential harm, defiance of legal process, e.g.” (id. at 27).

The differences among the proposed rules, and their

vagueness, reveal the futility of trying to use a bright-line

Fourth Amendment rule in this area: arrests for misde-

meanors and fine-only offenses present a very wide vari-

ety of circumstances, and any single nationwide

constitutional rule will be ill-adapted ‘o the issue.

“(T]he ‘touchstone of the Fourth Amendment is rea-

sonableness’” and “[iJn applying this test [the Court]

ha[s] consistently eschewed bright-line rules.” Ohio v.

makes no substantive argument for the proposition that a

warrant should be required in cases of this kind.

8 “NACDL Am. Br.” refers to the amicus curiae brief of the

National Association of Criminal Defense Lawyers.

14

Robinette, 117 S.Ct. 417, 421 (1996), quoting Florida v.

Jimeno, 500 U.S. 248, 250 (1991). In defining the limits on

police officers’ power in this area, state and local govern-

ments should be permitted to pursue different

approaches, allowing their officers the degree of flex-

ibility that is appropriate to particular local conditions.

The per se rules proposed by petitioner and his sup-

porting amici have two things in common: they purport

to be validated by the common law; and they would

make it substantially more difficult for police officers to

arrest individuals for “minor” crimes, defined as either

misdemeanors or fine-only offenses. In fact, petitioner's

arguments — which find no support in this Court’s deci-

sions and have been consistently rejected by the lower

courts — misunderstand both the nature of the common

law rule and the relationship between the common law

and the Fourth Amendment, as we demonstrate in Part C.

Perhaps more important, petitioner’s argument, with its

implicit denigration of the need for effective enforcement

of laws 2~>inst so-called “minor” offenses, reflects a deep

and pote ally very harmful misconception of the nature

of law enforcement, particularly in modern urban set-

tings.

B. A Per Se Constitutional Limit On The Power To

Arrest For “Minor” Offenses Would Seriously

Undermine Important Law Enforcement Objectives.

The approach that petitioner suggests — imposing

additional requirements, besides probable cause, for

arrests for “minor” offenses —- is not only unfounded in

the Fourth Amendment; it is both impractical and unnec-

essary. Arrests, even for supposedly minor offenses, serve

multiple important purposes. Those purposes cannot be

15

accommodated by exceptions for “exigent circum-

stances,” “breaches of the peace,” “quality of life

offenses,” “defiance of process” and the like, unless, of

course, those exceptions are construed so flexibly as to

render the rule meaningless.

In addition, a per se rule limiting the power to arrest

for minor offenses in unnecessary. States have shown

themselves willing to impose restrictions on the power of

law enforcement officers to make arrests for misde-

meanors and fine-only offenses, and they have imposed a

variety of such restrictions that respond to local condi-

tions. There is also a built-in check on police officers in

such situations. Arrests consume far more time and

resources that issuing citations, or simply warning

offenders. Officers have no interest in spending those

resources unnecessarily, and as a general rule will choose

the less intrusive route when it is appropriate. Pretextual

or harassing police conduct is, of course, an important

concern, when it occurs. But a blanket prohibition on an

entire category of arrests is an ill-conceived way of deal-

ing with that concern.

Most important, however, petitioner’s approach rests

on the premise that the enforcement of laws against mis-

demeanors, or offenses punishable by fines, is a matter of

relatively low social importance. This premise flies in the

face of both a substantial body of social science and the

gritty realities of police work.

1. Stationhouse arrests for “minor” offenses serve

important law enforcement purposes.

a. Historically a central purpose of an arrest has

been to ensure the suspect's presence at trial. See, e.g., 4

William Blackstone, Commentaries on the Laws of England

16

*286. Generally, of course, suspects, especially those

accused of misdemeanors, are detained only until bond is

set and provided. That is what happened in this case: the

officers brought petitioner to the station so that the bond

determination could be made by a supervisory officer.

Petitioner's approach, however, would force law

enforcement agencies to choose between two unattractive

alternatives in dealing with suspected misdemeanants.

Either officers would issue a summons to the suspect

without collecting any bond, or they would set and col-

lect a cash bond on the scene. The first course — issuing a

citation and allowing the suspect to go on his way -

would, inevitably, greatly increase the numbers of sus-

pects who do not appear for trial and escape punishment

entirely. The second course - authorizing the officers

collect a cash bond on the spot from the suspect - would

create many severe difficulties, as we explain more fully

below. There is no good reason for forcing this dilemma

on law enforcement authorities.

Petitioner and the amici invoke the example of traffic

violations, a class of offenses for which the authority to

set bond is often delegated to officers in the field. The

offender’s driver’s license, or sometimes a bond card

provided by an organization acting as a surety, can be

taken by the officer on the spot. See IIl.Sup.Ct.R. 526(a).

Petitioner and the amici seem to believe that this

approach should be used across the board, for all offenses

punishable by fine only, or perhaps even for all misde-

meanors.

But traffic violations are in this respect sui generis. A

driver’s license provides a suitable and widely available

form of non-cash bond. When a cash bond is required,

there are obvious reasons for a state or local government

17

not to want its officers in the field to collect cash from the

suspect but instead to insist, as Arlington Heights has

done here, that a supervisory officer at the station set and

collect the bond. In fact, this is not simply a matter of

Village policy: Illinois law specifically provides that cash

bail or a bond may be accepted only in a police station or

government building, and then only by certain officials.

See 725 ILCS 195/1; Ill.Sup.Ct.R. 528.

Moreover, even in the case of traffic violations, it is

not uncommon for officers to require the driver to accom-

pany them to a stationhouse. This will occur when a

driver does not have a license, or when the driver has

only an out-of-state license. Under petitioner’s approach,

officers apparently would be precluded from doing this,

unless the traffic offense was serious enough to be pun-

ishable by incarceration. The result would again be either

that many more offenders will not appear for trial (and

thus will often be able to escape prosecution), or that

officers would have to set and collect bond at the scene.

Perhaps aware of this problem in the per se rule it

proposes, amicus ACLU suggests (Br. 3, 27) that arrests

could be allowed for any offense if there are “exigent

circumstances,” including “defiance of process.” This is

simply not a workable rule. The question whether a sus-

pect is likely to appear for trial is exactly the question

before a judicial officer at a bond hearing. It is not the

sort of decision that officers in the field should be

required to make at the scene of an arrest. Those officers

are operating in unfamiliar and possibly threatening sur-

roundings. The officers may know nothing at all about

the aspects of the suspect’s background that might make

him more or less likely to abscond. But under the ACLU’s

18

rule, if the officers resolve their doubts in favor of hold-

ing the suspect, their decision could be second-guessed at

a trial in which they will face personal damages liability.

More important, officers in this situation are con-

fronting an individual who, although at the moment sus-

pected only of a misdemeanor, may have a serious

criminal record or may be wanted on an outstanding

charge.? Sometimes computer and communications tech-

nology will enable officers to obtain this information at

the scene of the arrest. But even that will require the

officers to prolong their encounter with the suspect at the

scene, a course of action that is potentially dangerous;

and in any event a per se rule cannot be made contingent

on the availability of a certain form of technology. As this

Court has recently noted, “studies suggest that as many

as two-thirds of those arrested have prior criminal

records, often from other jurisdictions.” Parke v. Raley, 506

U.S. 20, 28 (1992). It will be especially difficult for officers

at the scene to gain information about out-of-state

records.

By bringing the suspect to the stationhouse, the offi-

cers can confirm the suspect’s identity, check for any

criminal record or outstanding charges, and allow the

bond determination to be made in calm surroundings

either by a judicial officer or by an experienced law

* There are well-known examples of individuals,

subsequently convicted of heinous crimes, who were first

apprehended because they violated minor laws. See, e.g., Bundy

v. State, 455 So. 2d 330, 336 (Fla. 1984), cert. denied, 476 U.S. 1109

(1986) (serial murderer arrested at traffic stop); Stephen Braun,

Trooper's Vigilance Led to Arrest of Blast Suspect, LA Times Al

(Apr. 22, 1995) (convicted Oklahoma City bomber Timothy

McVeigh arrested at traffic stop).

19

enforcement officer to whom the authority has been spec-

ifically delegated. That is manifestly a reasonable way for

officers to proceed.

This point also illustrates another important way in

which petitioner’s approach is unworkable. Petitioner

and the amici propose that a sharp line be drawn between

offenses punishable only by a fine and offenses punish-

able by imprisonment. But as the Court explained, in

rejecting a proposal for a similar distinction in the context

of Miranda warnings, it will often be difficult or impossi-

ble for police officers in the field to tell which category of

offense they are dealing with. See Berkemer v. McCarthy,

468 U.S. 420, 430-31 (1984). “[T]he nature of [the] offense

may depend upon circumstances unknowable to the

police, such as whether the suspect has previously com-

mitted a similar offense or has a criminal record of some

other kind. It may even turn upon events yet to happen,

such as whether a victim of [the offender’s reckless con-

duct] dies.” Ibid. (footnotes omitted). Thus, for example,

whether possession of a weapon is a fine-only offense, a

misdemeanor, or a felony, may depend upon whether it is

a first or second offense and whether the offender has a

prior felony conviction — information that will seldom be

available at the scene.

In addition, relatively minor differences in the cir-

cumstances surrounding an offense may make a dramatic

difference in the severity of the punishment. “[O]fficers

in the field frequently ‘have neither the time nor the

competence to determine’ the severity of the offense for

which they are considering arresting a person.” Berkemer,

468 U.S. at 431 n. 13, quoting Welsh, 466 U.S. at 761

(White, J., dissenting). Under the municipal code of the

City of Chicago, for example, trespass and possession of

20

burglar tools are both fine-only offenses. Chicago Mun.

Code §§ 8-4-050; 8-4-180. An officer who encounters an

individual prowling on another’s property, with burglar

tools, will be forced - under petitioner’s approach — to

decide whether there is probable cause to suspect the

individual of burglary; if there is not, he cannot arrest the

suspect but must issue a citation. Similarly, “manipulat-

ing telephone coin boxes” is a fine-only offense

(§ 8-8-180); theft is not. Of course, the officer can stop the

suspect on reasonable suspicion while more facts are

ascertained. But if the stop lasts too long or becomes too

restrictive, it may turn into an arrest. See, e.g., United

States v. Sharpe, supra. In all these respects, petitioner’s

approach unnecessarily forces officers to walk a tightrope

— even though the evidence before them satisfies the

traditional standard of probable cause to believe that a

suspect violated the law.

Consequently, under petitioner’s approach, police

officers may be unable to treat an offender as seriously as

his conduct and record require. They may be compelled

to treat an offender who is in fact a felon as if he were a

misdemeanant facing only a fine. Unless they have the

ability to consult the offender’s records quickly on the

scene, they will be limited to issuing a citation and hop-

ing that the offender will appear in court. Even petitioner

concedes that the Fourth Amendment does not require

that persons facing felony charges be treated in this way.

But that is the result that petitioner’s approach will often

produce.

b. An arrest is also a means by which officers can

assert control of a potentially threatening situation. Peti-

tioner acknowledges that misdemeanor arrests are proper

21

for offenses involving a breach of the peace - thus recog-

nizing that arrests can legitimately serve the function of

maintaining order. But the concern goes well beyond

offenses that themselves constitute breaches of the peace.

When a person has been stopped by the police, that

person — or others nearby — can become threatening even

when the underlying offense itself does not involve either

a felony cr threatening conduct.

There are many possible examples. A gang member

marking his turf with graffiti; a street vendor without a

license, irate at being challenged by Officers; a belligerent

group blocking a sidewalk, intimidating neighborhood

residents; a well-known and popular resident of a neigh-

borhood, stopped for careless driving - all of these situa-

tions may involve fine-only offenses, but they may easily

call for the police to exercise more control than they can

plausibly assert by handing out citations.

This point is illustrated by the history of the common

law rule permitting misdemeanor arrests for breaches of

the peace. At common law, the notion of a “breach of the

peace” was highly elastic: some cases held that “disobey-

ing any act of parliament was a breach of the peace.”

Horace Wilgus, Arrest Without A Warrant, 22 Mich. L. Rev.

541, 574 (1923-24) (footnote omitted). In this nation, as we

show below, nearly every state has, by statute, aban-

doned the breach of the peace limitation on the power of

officers to arrest for misdemeanors. Some states have

substituted a more detailed and expansive account of

when misdemeanor arrests are permitted; others have

recognized that no comparable limitation can be applied.

Nearly all have recognized that the circumstances in

which officers might justifiably need to make an arrest

simply cannot be captured in a simple formula.

22

This Court has recognized the importance of allow-

ing police officers at a potentially threatening scene to

control the situation, even when there is no concrete

reason at all to suspect a threat, and even by making a

seizure unsupported by probable cause. In Michigan v.

Summers, 452 U.S. 692 (1981), the Court held that police

could seize an individual leaving a house where they

were about to execute a search warrant. The Court noted

that “no special danger to the police is suggested by the

evidence in this record,” but explained that the seizure

was supported by “the interest in minimizing the risk of

harm to the officers” because “[t]he risk of harm to both

the police and the occupants is minimized if the officers

routinely exercise unquestioned command of the situa-

tion.” Id. at 702-03. In Maryland v. Wilson, 117 S.Ct. 882

(1997), the Court held that officers may order the pas-

senger out of a car that has been lawfully stopped, even

when there is no basis for suspecting the passenger of

_ any offense. The Court again relied on the need for offi-

cers to “ ‘exercise unquestioned command of the situa-

tion’ ” (id. at 886; citation omitted). It is true that the

seizures approved in Summers and Wilson will gererally

be less intrusive than an arrest - although there may well

be circumstances in which those seizures, particularly the

kind approved in Wilson, will be perceived by the subject

as more intrusive and threatening than the brief and

relatively amicable trip to the stationhouse in this case.

But by the same token the officers in this case had proba-

ble cause to justify the seizure; in Summers there was not

probable cause, and in Wilson no suspicion at all. In both

cases the Court made clear that there was no need for the

officers to make any specific showing of exigency.

23

c. As we noted above, petitioner has waived any

argument based on a requirement that a warrant be

obtained before a misdemeanor arrest. But in any event, a

warrant requirement, were one to be imposed, would

“constitute an intolerable handicap for legitimate law

enforcement.” Gerstein, 420 U.S. at 113. The Court reached

this conclusion with respect to felony arrest in Watson,

423 U.S. at 417, and there is no reason to reach a different

conclusion with respect to any other category of offenses.

In general, of course, apprehending a felon will be

more important that apprehending a misdemeanant. But

see Tennessee v. Garner, 471 U.S. 1, 14 (1985) (footnote

omitted) (“[N]umerous misdemeanors involve conduct

more dangerous than many felonies.”). But by the same

token, a felony arrest is much more intrusive. And the

volume of misdemeanor arrest is vastly greater. Seeking

warrants for misdemeanor arrests, or even fine-only

arrests, would therefore impose a very substantial burden

on law enforcement agencies, with at most limited gains.

Less obvious, but no less important, are the anoma-

lies and distortions that would be created if a warrant

were required for misdemeanor arrests but not for felony

arrests. Officers who have probable cause to believe a

suspect committed a misdemeanor might delay the arrest

until the suspect committed a felony, so that they did not

have to obtain a warrant. Often the same behavior consti-

tutes both a major offense and a lesser offense, and offi-

cers have discretion to decide what to charge. If a warrant

were required only for the less serious offense, officers

would have a strong incentive to arrest offenders for

felonies — thus greatly increasing the stigma, probably

causing the initial detention to be harsher, and making it

more difficult for the offender to obtain release on bail -

24

even if ordinary sound police practice would be to charge

a lesser offense. And of course legislators could nullify

the warrant requirement simply by reclassifying offenses

or by increasing the range of possible sentences to

include incarceration. No purpose would be served by

inducing legislatures to do that.

Finally, a warrant requirement will of course necessi-

tate an exception for exigent circumstances. The impos-

sibility of defining when such circumstances exist

demonstrates why a warrant requirement would be

unworkable here, as it is for felony arrests. When police

officers are conducting a search for evidence or contra-

band, it is possible to specify what constitutes exigent

circumstances: essentially a significant risk that the evi-

dence will be lost or destroyed. Arrests, however, grow

out of a face-to-face confrontation between the police and

a suspect — often with others present, either members of

the public or intimates of the suspect - and such a situa-

tion is almost always more fluid and multi-faceted than

that involved in a search for evidence. What might begin

as a polite encounter between a citizen and an officer may

escalate into a situation requiring an arrest. The police

may arrive at a scene with the intention only of investi-

gating but then determine that an arrest is in order.

Officers with probable cause might initially plan only to

warn the suspect but then discover that a hostile crowd

has gathered and an arrest is needed. Officers who ini-

tially believe that a citation and summons will be suffi-

cient might decide, after seeing the suspect’s reaction,

that the danger of his absconding is too great and an

arrest is in order. When officers are confronted with such

a wide array of potentially threatening circumstances, it

25

would seriously inhibit effective law enforcement to sub-

ject them to second-guessing on the ground that they

might have anticipated the events that occurred and

obtained a warrant.

2. A nationwide constitutional limit on arrests for

fine-only offenses is both unnecessary and

harmful in view of the valuable diversity of

approaches among the states.

a. Petitioner and his supporting amici detail

numerous state laws governing arrests for misdemeanors

and fine-only offenses; they suggest that these laws show

that this Court should adopt a nationwide per se rule as a

matter of constitutional law. In fact the variety of state

laws shows exactly the opposite.

To begin with, in very few states would the arrest in

this case have been unlawful.'° Petitioner and his sup-

porting amici, in their surveys of state law, appear to

claim at most that eight states forbid arrests for fine-only

offenses. ACLU Am. Br. 15 n. 17. Both petitioner and the

amici assert that many states still generally endorse the

rule that misdemeanor arrests may be made only for

offenses committed in the officer’s presence. Pet. Br.

14-21; ACLU Am. Br. 15-17. But as the lower courts

found, and as we show below, the offense here was com-

mitted in the officers’ presence. Thus it appears that

petitioner’s approach would have the effect of declaring

unconstitutional, in whole or part, the laws of at least 42

states, even on petitioner’s account.

10 The various state laws governing arrests are surveyed in

Part II B of the Brief for the National League of Cities, et al., as

amici curiae.

26

What is most striking about state law on this subject,

however, is how it is both highly varied and highly

complex. Even among states that seem to retain the “pres-

ence” requirement, there is a multifarious pattern of

exceptions. And states that seem sympathetic to peti-

tioner’s view in fact allow law enforcement authorities a

great deal of flexibility.

California’s statute is an example. Cal. Penal Code

§ 853.6 begins by stating, superficially in keeping with

petitioner’s general approach, that “[iJn any case in

which a person is arrested for an offense declared to be a

misdemeanor, including a violation of any city or county

ordinance * * * that person shall * * * be released” with a

citation. But the statute then immediately provides an

important exception, for domestic violence cases:

In any case in which a person is arrested for

a misdemeanor violation of a protective court

order involving domestic violence * * * the per-

son shall be taken before a magistrate instead of

being released according to the procedures set

forth in this chapter, unless the arresting officer

determines that there is not a reasonable likeli-

hood that the offense will continue or resume or

that the safety of persons or property would be

imminently endangered by release of the person

arrested.

Recognizing, however, the difficulty of defining such an

“exigent circumstances” exception, the statute directs

“each city, county, or city and county [to] develop a

protocol to assist officers to determine when arrest and

release is appropriate, rather than taking the arrested

person before a magistrate.”

27

The statute then goes on to provide a number of

additional, substantial exceptions to the requirement of

proceeding by citation (Cal. Penal Code § 853.6(i);

emphasis added):

Whenever any person is arrested by a peace

officer for a misdemeanor, that person shall be

released according to the procedures set forth

by this chapter unless one of the following is a

reason for nonrelease * * * :

(1) The person arrested was so intoxicated

that he or she could have been a danger to

himself or herself or to others.

(2) The person arrested required medical

examination or medical care or was other-

wise unable to care for his or her own

safety.

(3) The person was arrested under one or

more of the circumistances listed in Sections

40302 [which includes the failure to produce

satisfactory evidence of one’s identity] and

40303 [which enumerates sixteen motor

vehicle offenses] of the Vehicle Code.

(4) There were one or more outstanding

arrest warrants for the person.

(5) The person could not provide satisfac-

tory evidence of personal identification.

(6) The prosecution of the offense or

offenses for which the person was arrested,

or the prosecution of any other offense or

offenses, would be jeopardized by immedi-

ate release of the person arrested.

(7) There was a reasonable likelihood that

the offense or offenses would continue or

resume, or that the safety of persons or

property would be imminently endangered

by release of the person arrested.

28

(8) The person arrested demanded to be

taken before a magistrate or refused to sign

the notice to appear.

(9) There is reason to believe that the per-

son would not appear at the time and place

specified in the notice. The basis for this

determination shall be specifically stated.

The complexity of this and many other state statutes,

and the variety among state statutes, are significant for a

number of reasons. First, they reveal that this is the kind

of issue that can be readily addressed through the politi-

cal process in each state and locality. Only a very small

percentage of the population is subjected to the kinds of

police conduct that this Court has traditionally limited by

strict prophylactic rules - for example, searches of resi-

dences and custodial interrogation. But nearly everyone

would be threatened if police had an excessively broad

power to arrest for minor offenses, and the legislators

have responded accordingly. Petitioner makes much of

the fact that most states “circumscribe an officer's power

to make a warrantless arrest in non-felony cases.” Pet. Br.

13 (footnote omitted). Contrary to petitioner’s sugges-

tion, however, that is a reason for this court not to inter-

vene. The profusion of state statutes shows that

democratically elected legislators are fully able to address

this issue. Cf. Robinette, 117 S.Ct. at 421-22 (Ginsburg, J.,

concurring); id. at 427-28 (Stevens, J., dissenting).

Moreover, the variation and complexity in these stat-

utes shows that a single nationwide rule is unlikely to

work. Circumstances differ from state to state. “Minor”

offenses in urban areas are often not minor at all; as we

explain below, important policing strategies emphasize

the crucial need to enforce the laws against supposedly

minor crimes very vigorously. Those crimes can have a

me al.

29

profound effect on urban neighborhoods. Indeed, the

effective enforcement of laws against “minor” offenses

may be the single best way of reducing the number of

very serious offenses. But predominantly rural states are

faced with different circumstances. There, minor offenses

may have less of an impact on others, and the distance

that an arrestee must travel to the police station may be

much greater. As California’s statute shows, states may

have very specific ideas about what constitutes the kind

of exigency that requires an arrest rather than a citation,

and specific ideas about how to implement the regime

they have defined. Given these conditions, and the states’

responsiveness to them, it would be artificial - and

potentially destructive of valuable state and local experi-

mentation — to insist on uniformity as a matter of federal

constitutional law

b. In addition, this is an area in which the incentives

of police officers will not generally be at odds with the

constitutional values at stake. Traditionally when the

Court has adopted per se rules limiting police conduct, it

has done so in order to counteract the systematic ten-

dency of “zealous officers” to be too aggressive while

“engaged in the often competitive enterprise of ferreting

out crime.” Johnson v. United States, 333 U.S. 10, 13-14

(1948). Thus the Court requires search warrants because

officers on the trail of crucial evidence may be too quick

to decide that they have probable cause for a search; the

Court requires Miranda warnings because officers who

have a suspect in custody may, in their zeal to solve the

crime, overreach and use coercive interrogation tactics. In

these situations and others, officers who are zealously

trying to enforce the law may have some tendency to

infringe constitutional values.

30

But police officers and police departments have no

systematic interest in making unnecessary arrests for mis-

demeanors and fine-only offenses. On the contrary, they

have every reason to use citations — or warnings — when-

ever possible. Arrests are time-consuming and generally

force officers to do much greater amounts of paperwork -

thus detracting from their “competitive enterprise of fer-

reting out crime.” For this reason, officers zealously

engaged in that enterprise are likely to avoid arresting

individuals for less serious offenses, whenever they can

conscientiously do so.'! This is no doubt one reason that

state and local governments have limited officers’ author-

ity to make arrests for misdemeanors. And for this rea-

son, too, this Court’s intervention here is unwarranted.

c. We do not overlook the possibility that the power

to arrest people for misdemeanors or fine-only offenses

might be used pretextually or for purposes of harass-

ment. Petitioner’s own self-serving claims of harassment

in this case are belied both by the circumstances of the

arrest and by the fact - not only conceded but empha-

sized by petitioner — that the arrest was made pursuant to

a uniformly applied Village policy. Nonetheless, it is cer-

tainly possible to imagine cases in which the power to

"! The contrast with County of Riverside v. McLaughlin, 500

U.S. 44 (1991), is illuminating. Once an offender has been jailed,

both bureaucratic inertia and the desire to investigate further

might lead to an excessively long confinement. For this reason

the court established a presumption that the Fourth

Amendment is violated when an arrestee is confined for more

than 48 hours without appearing before a judicial officer. By

contrast, an officer who can, consistent with his or her duties,

escape the paperwork of taking a person into custody is likely to

do so whenever possible.

tiene ee eee

ee

31

arrest for a misdemeanor or fine-only offense might be

used for improper purposes.

An across-the-board prohibition of an entire category

of arrests would, however, be a much too far-reaching

way of addressing this issue. Nowhere do police officers

enjoy more discretion than in deciding whether to stop

vehicles for traffic offenses, since traffic laws are so

detailed and violations are so ubiquitous. But this Court -

recognizing both the complexity of the situations

involved and the ability of state and local governments,

including state courts, to address the issue — has consis-

tently refused to adopt per se rules to limit police discre-

tion and reduce the danger of harassment and pretext.

See Whren v. United States, supra; Ohio v. Robinette, supra.

Indeed the Court has, if anything, enlarged the authority

of police officers to take steps to control the situation that

arises after a traffic stop. See Maryland v. Wilson, supra;

Pennsylvania v. Mimms, 434 U.S. 106 (1977).

An individual who believes police officers have acted

improperly is free to invoke the remedies made available

by state and local governments - which, as we have

noted, have shown their ability to limit officers’ authority.

Beyond that, an individual can attempt to show that the

manner of an arrest was abusive; that he was held for an

excessively long time before a probable cause determina-

tion; or that he has been singled out for prosecution on an

impermissible basis. Broader federal constitutional limita-

tions, of the kind petitioner seeks, would only hamper

law enforcement efforts while, in all likelihood, having

little if any effect on police officers who are genuinely

unscrupulous and bent on harassment.

32

3. Effective police work against so-called minor

offenses is a crucial law enforcement priority.

a. Perhaps the deepest flaw in petitioner’s argu-

ment is his implicit premise that little harm is done if the

enforcement of laws against “minor” offenses is curtailed.

One of the most significant developments in criminology

in recent years has been the renewed emphasis on the

vigorous enforcement of laws against so-called minor

crimes. This emphasis is supported by recent social sci-

ence studies showing that the prevalence of minor crimes

can have a devastating effect on a community. See, e.g.,

Wesley G. Skogan, Disorder and Decline (1990); George

Kelling and Catherine M. Coles, Fixing Broken Windows:

Restoring Order and Reducing Crime in Our Communities

(1996); Dan M. Kahan, Social Influence, Social Meaning, and

Deterrence, 83 U. Va. L. Rev. 349 (1997).

The minor crimes that fall into this category include

many offenses that are typically punishable by fines only:

“noisy neighbors, accumulating trash, poorly maintained

buildings, and sundry problems related to congregating

bands of youths” (Skogan, Disorder and Decline 2) as well

as “vandalism, aggressive panhandling, public drunken-

ness, unlicensed vending, public urination, and prostitu-

tion” (Kahan, 83 U. Va. L. Rev. at 368). Many of these

offenses would not constitute breaches of the peace at

common law. That is certainly true of, for example, code

violations relating to trash, building conditions, and

street vending. But it appears also to be true of “talking

loudly in the street in the presence of an officer, who

ordered the parties to be quiet”; “ ‘turning toward the

wall for a particular purpose’ of relief”; “obstructing the

free passage across a bridge; or refusing to move on, on a

sidewalk, at the request of an officer”: none of those

33

offenses was viewed as a breach of the peace that would

justify a misdemeanor arrest. Wilgus, Arrest Without A

Warrant, 22 Mich. L. Rev. 673, 703-04 (1923-24) (footnotes

omitted). Prostitution and panhandling also may not be

breaches of the peace.

There is powerful evidence that offenses of this kind

are not just annoyances; they are one of the leading

causes of the disintegration of urban communities. For

example, one study, based on 40 urban areas with differ-

ing crime rates, found a high correlation between “disor-

der” — defined in large part by the presence of low-level

crimes! — and serious crime. The high correlation per-

sisted even after controlling for the effects of poverty,

racial composition of the neighborhood, and neighbor-

hood instability. Skogan, Disorder and Decline 73, 75. Dis-

order also correlated with perceptions of violent crime

(id. at 74-75) and instability in the neighborhood housing

market (id. at 84).

Law enforcement officers should be permitted to

combat these widespread but severely damaging minor

offenses in the way they traditionally combat crime: by

making arrests if there is probable cause. The regime that

"petitioner advocates is simply not a practical alternative.

Obtaining a warrant is a time-consuming effort that will

‘2 “Disorder” was measured by a surveys that asked about

“problems with groups of loiterers, drug use or sales,

vandalism, gang activities, public drinking, and street

harassment” as well as “building abandonment, garbage or

litter on streets and sidewalks, and junk and trash in vacant

lots.” Skogan, Disorder and Decline 51. All of these categories of

disorder involve offenses, many of which (especially the code

violations associated with the latter group) will typically be

punished only by fines. In addition, none of those in the latter

group constitutes a traditional breach of the peace.

34

make it virtually impossible to enforce these laws on a

large scale. A citation issued to a perpetrator of one of

these offenses will often be ignored.

Indeed officers might be better advised to do nothing

instead of issuing a futile citation and heightening the

impression that the law cannot be effectively enforced.

The point of enforcing the law against offenses of this

kind is to dispel the impression that a community is in a

state of decline, in which the law is widely disobeyed

with impunity. See Kelling and Coles, Fixing Broken Win-

dows 20 (“[D]isorderly behavior unregulated and

unchecked signals to citizens that the area is

unsafe. * * * Ultimately the result for such a neighbor-

hood, whose fabric of urban life and social intercourse

has been undermined, is increasing vulnerability to an

influx of more disorderly behavior and serious crime”). If

officers cannot move against offenders swiftly, effectively,

and on a large scale, their efforts may be not only vain

but counterproductive.

Of course this does not justify dispensing with the

traditional requirements of probable cause and rea-

sonableness. And state and local statutes and judicial

decisions will still restrain police officers. But at a time

when the control of so-called minor offenses has come to

be seen as a matter of great importance and urgency, it

would be inopportune to preempt state and local efforts

with a new, inflexible Fourth Amendment rule.

Amicus NACDL insists (Br. 14) that “quality of life”

crimes would constitute an exception to the proscription

on arrests for fine-only offenses. But it makes little sense

to establish a supposed rule against arrests for such

offenses, only to allow a broad and ill-defined exception

that will lead to litigation and cause police officers to

35

hesitate in doing their jobs. Consider, for example, the

following offenses, all of which are punishable only by

fines under the Municipal Code of the City of Chicago:

trespass (§ 8-4-10)

vagrancy (§ 8-4-100)

damages to public property (§ 8-4-120)

possession of paint or marker with intention

to deface (§ 8-4-130)

e throwing objects on an athletic field

(§ 8-4-190)

e soliciting for prostitution (first and second

offenses) (§ 8-4-130)

indecent exposure (§ 8-8-080)

gambling (§ 8-12-010)

drinking by minors (§ 8-16-050)

possession of alcohol by a minor, or deliver-

ing alcohol to a minor (§ 8-16-060)

possession of spray paint or marker by a

person under 18 (§ 8-16-096)

discharge of a firearm (§ 8-24-010)

defacing public property (§ 10-8-380)

noise violations (§ 10-4-1110)

throwing objects in public places of amuse-

ment (§ 7-28-180)

e smoking in public conveyances (§ 7-32-020)

It is difficult to see why all of these should not be

considered “quality of life” offenses - as should many

instances of operating an unlicensed business. All of

them concern conduct that can seriously undermine the

quality of life in an urban environment. The way to deal

with these offenses is to allow officers to act as the Fourth

Amendment permits — to arrest on probable cause - and

to allow state and local regulation (along with simply the

press of police work) to provide the necessary check on

36

police, rather than to adopt a prophylactic rule that is

likely to produce unfortunate consequences.

b. The most basic error of petitioner's approach lies

in the assumption that, as amicus ACLU puts it (Br. 21), it

is unfair “to allow detention at the sole whim of the

police for an offense that could not have led to incarcera-

tion upon conviction.” Of course petitioner was detained

on the basis of probable cause, not at the “whim’ of the

police. More fundamentally, however, this argument mis-

conceives the relationship between arrest and >unish-

ment. An arrest is not part of the punishment for an

offense; it would violate the Constitution to use a period

of detention (or any other sanction) to punish any suspect

who has not been convicted, no matter how serious the

offense with which he is charged. An arrest serves the

purposes of ensuring a suspect’s appearance at trial and

preserving order at the scene of the offense. Those pur-

poses may furnish as strong a justification for an arrest in

a case involving a fine-only offense as in a case involving

an offense that can lead to imprisonment.

The punishment that a legislature designates for an

offense is a function of many factors unrelated to whether

it is appropriate to arrest a suspect. A legislature may, for

example, choose to punish an offense slely by a fine not

because it considers the offense tc be less serious but

because the class of offenders is likely to be highly

responsive to economic incentves. This will often be true

of environmental offenses, vhich are prompted by simple

economic calculation ox the part of the offender and

which can be deterre¢ if they are made unprofitable. See,

e.g., Chicago Mun Code § 7-28-390 (unauthorized dump-

ing on a public way punishable by fine only).

37

Alternatively, the decision to punish an offense by a

fine may reflect the legislature's view that the offense,

while serious, does not require incapacitation. Or the

decision to make an offense punishable only by a fine

may simply reflect a legislative determination that incar-

ceration — a harsh and expensive punishment - should be

used only for the most dangerous or hardened offenders,

and that those who commit, for example, environmental

offenses or criminal fraud are not such offenders. See,

e.g., Chicago Mun. Code § 4-72-170 (offenses relating to

the licensing and inspection of day care centers punish-

able by fine only); Chicago Mun. Code §§ 4-144-210,

8-24-060 (certain weapons offenses punishable by fine

only); Chicago Mun. Code § 4-60-200 (regulations of

establishments with liquor licenses punishable by fine

only).

In all of these cases, the reasons for arresting a sus-

pect — in particular, the need to make sure he will appear

at trial - are very strong. Indeed, if the legislature is

relying on economic incentives to deter people who are

committing crimes simply out of calculation, and not

impulsively, a credible threat of enforcement is crucial.

The fact that the offense is not punishable by incarcera-

tion has no bearing on how important it is that the law be

effectively enforced.

C. Traditional Common Law Limitations, To The

Extent They Are Incorporated In The Fourth

Amendment, Do Not Invalidate The Arrest In This

Case.

__.-1. Petitioner and his supporting amici rely on what

they characterize as the “common law rule” that a war-

rantless arrest for a misdemeanor is permissible only

38

when the offense occurs in the presence of the arresting

officers and involves a breach of the peace. See, e.g., Pet.

Br. 9-11. As we explain below (pages 46-48), to the extent

this common law rule survives as a traditional limitation

on the authority of police offices, it survives only as to

the requirement that a misdemeanor occur in the arrest-

ing officer’s presence; the limitation to cases involving

breaches of the peace has not survived. As both courts

below found, petitioner’s offense in this case did occur in

the presence of the officers (Pet. App. 6, 18) — thus mak-

ing the arrest lawful even under the common law rule.

More fundamentally, however, the common law prin-

ciple on which petitioner relies is not among those that

have been incorporated into the Fourth Amendment.

Rather, common law limits on the power to arrest apply

only in the absence of a statute further expanding an

officer's authority. “ ‘[I]t is generally recognized today

that the common law authority to arrest without a war-

rant in misdemeanor cases may be enlarged by statute,

and this has been done in many of the states.’ ” Welsh v.

Wisconsin, 466 U.S. 740, 756 (1984) (White, J., dissenting),

quoting Edward Fisher, Laws of Arrest 130 (1967).

a. Even in the heyday of the common law, public

officials were authorized by statute to make warrantless

arrests for non-felonies that were not breaches of the

peace. Hawkins’s Pleas of the Crown gives this account:

As to the power of watchmen, it is farther

enacted by the said statute of Winchester, c. 4,

“That if any stranger do pass by the watch, he

shall be arrested until morning. And if no suspi-

cion be found, he shall go quit; and if they find

cause of suspicion, they shall forthwith deliver

him to the sheriff, and the sheriff * * * shall keep

39

him safely until he be acquitted in due man-

ner. seo #

3 William Hawkins, A Treatise of Pleas of the Crown (1795),

ch. 13, § 5 at 173. Hawkins states that this statute also

authorized bailiffs “ ‘to make inquiry of all persons being

lodged in the suburbs, or in foreign places of the towns;

and if they do find any that have lodged or received any

strangers or suspicious persons’ ” the bailiffs “may law-

fully arrest and detain any such stranger, being found

under probable circumstances of suspicion, until he shall

give a good account of himself.” Id., § 12 at 178. In the

case of both the watchmen and the bailiffs, these are

arrests without “process from some court of record.” Id.

at 172.

Blackstone gives a similar account, again discussing

arrests “without warrant” (4 Blackstone's Commentaries

*289; italics omitted):

Watchmen, either those appointed by the

statute of Winchester, 13 Edw. I c. 4, to keep

watch and ward in all towns from sunsetting to

sunrising, or such as are mere assistants to con-

stables, may virtute officci arrest all offenders,

and particularly nightwalkers, and commit them

to custody until morning.

The reason for this statutory enlargement of the com-

mon law authority sheds light on the Fourth Amendment

issue today. At common law, arrests for misdemeanors -

limited, in the absence of a warrant, to breaches of the

peace committed in the officer’s presence —- were “made

not so much for the purpose of bringing the offender to

justice as in order to preserve the peace” (I James Fitz-

james Stephen, A History of the Criminal Law of England

193 (1883); see Carroll v. United States, 267 U.S. 132, 157

(1925)). In a largely rural society with little mobility, in

which the inhabitants of villages knew each other well,

40

there was little concern about the risk of a misdemea-

nant’s escaping. But strangers presented a greater prob-

lem. Accordingly, by statute, public officials were

authorized to arrest a stranger, without a warrant, on

suspicion, and hold him until the matter was resolved.

Today, of course, the case of the stranger who might

flee —- an exception at common law - has become the rule.

The leading authorities have, accordingly, viewed the

statutory expansion of the common law power to arrest

as eliminating an archaic “handicap to our modern law

enforcement officers [that] presents a formidable obstacle

to protection of the public.” Fisher, Laws of Arrest 128.

b. In the United States, it has consistently been

understood that the common law arrest power can be

enlarged by statute. Kurtz v. Moffitt, 115 U.S. 487 (1885),

which appears to be the earliest case in which this Court

invoked the common law rule, makes this clear. The issue

in Kurtz was whether local police officers had the power

to arrest an alleged deserter from the army. The Court

stated: “If a police officer or a private citizen has the

right, without warrant or express authority, to arrest a

military deserter, that right must be derived either from

some rule of the law of England which has become part.

of our law, or from the legislation of Congress.” Id. at 498

(emphasis added). The Court then, after stating and

applying the common law rule and English statutes, care-

fully considered American statutes as well. Id. at 498-505.

The Court nowhere suggested that the federal legislation

enlarging the common law authority might violate the

Fourth Amendment.

Bad Elk v. United States, 177 U.S. 529 (1900) — the next

case in which this Court applied the common law princi-

ple - demonstrates the same point. In Bad Elk, the Court

held that a trial judge erred in instructing a jury that

41

police officers had acted lawfully in attempting to arrest

the defendant, who was convicted of murder on an

Indian reservation for killing one of the officers. In reach-

ing its conclusion, the court first reviewed the common

law rule and concluded that the attempted arrest did not

comply with it. Id. at 534-35.

The Court then proceeded, however, to consider

whether there was a state or federal statute “giving any

right to [the decedent] to arrest an individual without a

warrant, on a charge of misdemeanor not committed in

[his] presence.” 177 U.S. at 535. After reviewing the appli-

cable statutes in detail, the Court concluded that they

also did not authorize the arrest. Id. at 535-56. On peti-

tioner’s theory — that the common law establishes a con-

stitutional minimum —- the court’s examination of the

statutes is inexplicable. See also Johnson v. United States,

333 U.S. 10, 15 & n. 5 (1948) (stating without qualification

that “[s]tate law determines the validity of arrests with-

out warrant” in a case in which state law departed from

the common law rule.)

The common law rule was, therefore, understood

only to provide a limitation that, like other common law

doctrines, can be altered by statute. It is because of this

understanding that, for over 200 years, this Court “ ‘has

never invalidated an arrest supported by probable cause

solely because the officers failed to secure a warrant.’ ”

Watson, 423 U.S. at 417-18, quoting Gerstein, 420 U.S. at

113. Indeed the lower courts and commentators have

considered it axiomatic that, whatever additional restric-

tions might apply under state common or statutory law,

the Fourth Amendment permits a suspect to be arrested

on probable cause - for any offense. See, e.g., Allen v. City

of Portland, 73 F.3d 232, 236 n. 2 (9th Cir. 1995) (“A

42

warrantless misdemeanor arrest which violates state law

does not implicate the Fourth Amendment unless there is

no probable cause”); United States v. Smith, 73 F.3d 1414,

1416 (6th Cir. 1996); Fields v. City of South Houston, 922

F.2d 1183, 1189 (5th Cir. 1991) (“The United States Consti-

tution does not require a warrant [to arrest] for misde-

meanors not occurring in the presence of the arresting

officer.”); Higbee v. City of San Diego, 911 F.2d 377, 379 & n.

2 (9th Cir. 1990); Fisher v. Washington Area Metropolitan

Transit Authority, 690 F.2d 1133, 1138-39 & n. 6 (4th Cir.

1982). One of the leading cases in the area holds (Street v.

Surdyka, 492 F.2d 368, 372 (4th Cir. 1974)):

The Fourth Amendment protects individ-

uals from unfounded arrests by requiring rea-

sonable grounds to believe a crime has been

committed. The states are free to impose greater

restrictions on arrests, but their citizens do not

thereby acquire a greater federal right.

And the leading treatise states flatly:

As for the common requirement of a war-

rant for misdemeanors not occurring in the

presence [of the arresting officer], it is likewise

not grounded in the Fourth Amendment.

*** [T]he presence test is not mandated by the

Fourth Amendment.

3 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment (3d ed. 1996) § 5.1(b) at 21, 23.

c. There is no basis for any suggestion (see, ¢.g.,

NACDL Am. Br. 4) that because petitioner’s offense is

punishable only by a fine, not by jail, it would not have

been treated even as a misdemeanor at common law.

Many offenses at common law were punished by fines -

including some that are quite similar to petitioner’s. A

first offense of provision of unwholesome goods was

43

punishable by an “amercement” (4 Blackstone's Commen-

taries *162). “[O]ffensive trades and practices” were a

species of public nuisance punishable by a fine. Id. at

"167. “[S]tage-plays unlicensed” were also a public nui-

sance, subject to fine and suppression. Id. at *168. The

“making and selling of fireworks and squibs” (ibid.) was

treated in the same fashion. Obstructing highways,

bridges, or rivers, was also punishable by fines. Id. at

*167.

Amicus NADCL misleadingly argues that offenses

like petitioner’s were “similar to summary offenses” and

asserts that “the common law did not allow for arrests”

for such offenses. Br. 4. Summary offenses, however, were

not creatures of the common law; they were simply those

offenses that, by act of Parliament, were to be tried with-

out a jury. 4 Blackstone's Commentaries *277. They were “so

numerous, and of such a varied character, that it would

be practically impossible * * * to give anything like a full

account of them within any moderate compass.” III Step-

hen, History of the Criminal Law of England 263. These were

not just minor offenses; they included, for example, “all

trials of offences and frauds contrary to the laws of the

excise, and other branches of the revenue” (4 Blackstone's

Commentaries *278) as well as offenses like disorderly

conduct (ibid.). The punishments they assessed were by

no means limited to fines; they could impose corporal

punishment on the defendant. Id. at *278, *280.

Blackstone — whose stature among the colonists was,

of course, unparalleled — criticized the summary courts for

not arresting the defendant. It is a virtue of the common

law courts that they “never suffer[ ] any fact * * * to be

tried, till [they] have previously compelled an appearance

by all concerned.” 4 Blackstone's Commentaries *280. It was

44

the common law courts that insisted the summary courts

summon the accused, rather than proceeding ex parte. Id.

at *279. Blackstone also, of course, criticizes the summary

courts for not using a jury. Id. at 277-78. In all of these

respects, the practice of the summary courts simply sheds

no light on the treatment of offenses like petitioner's at

common law.'

It is clear, however, that American courts, from the

beginning of the nineteenth century, authorized warrant-

less arrests for violations of regulatory ordinances like

the one petitioner violated:

It is impossible to classify or enumerate the

great number of such misdemeanors or breaches

of ordinances for which peace officers may

arrest, without a warrant, if committed in their

presence. They include violations of health and

food regulations; Sunday traveling or entertain-

ments, nuisances on streets or sidewalks, or

loitering, or meetings on same, cruelty to ani-

mals, vagrancy, drunkenness, disturbances in

school houses, or at elections * * *

'S Amicus NACDL also argues that petitioner's offense is

civil in nature under Illinois law. This claim has never been part

of petitioner's argument, and in any event appears foreclosed

by Whren v. United States, supra, which involved a “civil traffic

stop” (116 S.Ct. at 1771) that the Court treated indistinguishably

from stops that technically involved criminal violations. See id.

at 1774 (noting that United States v. Robinson, 414 U.S, 218 (1973)

involved a “traffic-violation arrest (of the sort here)”).

We note that amicus’s discussion mischaracterizes Illinois

law in certain respects as well. People v. Datacom Systems Corp.,

585 N.E.2d 51 (Ill. 1991), for example, concerned the status of

fines for municipal parking violations under the Illinois

Collection Agency Act - not for any purpose having to do with

criminal law enforcement. See id. at 56-60.

45

Wilgus, Arrest Without A Warrant, 22 Mich. L. Rev. at

706-07. Indeed, the law review article from which amicus

NACDL adapts its discussion acknowledges that with

“the advent of a professional police force * * * arrest rules

began to change. Legislatures then adopted statutes

granting sweeping arrest powers [and] * * * authoriz[ing]

custodial arrests * * * ‘for many ordinance and regulatory

violations, that had previously not been subject to arrest

at all.” Barbara C. Salken, The General Warrant of the

Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62 Tem-

ple L. Rev. 221, 258-59 (1989) (footnotes omitted). It sim-

ply cannot be claimed, therefore, that there is a tradition

of precluding arrests for offenses like petitioner’s.

2. a. Even if the common law limits on an officer's

power to arrest are understood to specify constitutional

requirements, and are not subject to modification by stat-

ute, petitioner is still not entitled to prevail. This Court

“ ‘has not simply frozen into constitutional law those law

enforcement practices that existed at the time of the

Fourth Amendment's passage.’ ” Tennessee v. Garner, 471

U.S. 1, 13 (1985), quoting Payton, 445 U.S. 591 n. 33. In

determining whether the Fourth Amendment incorpo-

rates a common law principle, the Court has considered

not just the historic common law practice but whether

there is “a clear consensus among the States adhering to

that well-settled common law rule.” Payton, 445 U.S. at

590, citing Watson, 423 U.S. at 421-22. At the most, the

common law principles apply when they “ha[ve] been

generally adhered to by the traditions of our society”

(County of Riverside v. McLaughlin, 500 U.S. 44, 60 (1991)

(Scalia, J., dissenting)). See, e.g., Wilson v. Arkansas, 514

46

U.S. 927, 933 (1995) (citations omitted) (common law lim-

itation “was woven quickly into the fabric of early Ameri-

can law” and “is ‘embedded in Anglo-American law.’ “).

The common law rule limited the privilege to arrest

to cases in which the offense (i) was committed in the

officer's presence and (ii) constituted a breach of the

peace. It is entirely clear that only the first of these limits

has survived in American law. The requirement that a

misdemeanor arrest can be made only for a breach of the

peace has been widely disavowed in this country.

On this point the authorities are unanimous. “As a

general rule it may be said that the modern peace officer

has authority to arrest without a warrant for any public

offense committed in his presence, and this includes city

ordinance violations.” Fisher, Laws of Arrest 130 (1967)

(emphasis added; footnote omitted). See, ¢.g., 3 LaFave,

Search and Seizure §5.1(b) at 13-14 (“By far the most com-

mon statutory provision removes the breach of the peace

limitation and thereby permits arrest without warrant for

any misdemeanor committed in the arresting officer's

presence.”) (emphasis in original; footnote omitted);

Higbee v. City of San Diego, 911 F.2d 377, 379 & n. 2 (9th

Cir. 1990) (“court cases and statute[s] * * * allow arrest for

any offense committed in the presence of the police offi-

cer. * * * This practice has never been successfully chal-

lenged and stands as the law of the land.”) (emphasis in

original).

One recent survey concludes that “[o]nly a few

American jurisdictions still substantially follow the com-

mon law rule limiting warrantless misdemeanor arrests

to breaches of the peace committed in the arresting offi-

cer’s presence, and even these permit some minor excep-

tions.” William A. Schroeder, Warrantless Misdemeanor

47

Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 784

(1993) (footnotes omitted). In addition, “many jurisdic-

tions * * * authorize warrantless arrests for misdemeanors

not committed in the arresting officer's presence if speci-

fied circumstances exist or if the arrest is for specified

misdemeanors” (id. at 777-78), and “the trend away from

the common law rule has accelerated” (id. at 785).

Similarly, the ALI Model Code of Pre-Arraignment

Procedure, on which the Court has relied in determining

the scope of Fourth Amendment limits on the power to

arrest (Watson, 423 U.S. at 422), permits an arrest “for a

misdemeanor or petty misdemeanor in the officer's pres-

ence” and for a misdemeanor if the officer reasonably

believes that the person may escape apprehension or may

injure others. See id. at 422 n. 11. Petitioner and his

supporting amici attempt to paint a different picture, but,

as we have noted, they are unable to identify more than a

handful of states that retain anything more than the

requirement that the offense be committed in the officer's

presence. See Pet. Br. 13-21; ACLU Am. Br. 12-17.

In keeping with the American rejection of the breach

of the peace element, this Court’s descriptions of the

common law rule have, for the most part, simply omitted

that requirement. See, ¢.g., Watson, 423 U.S. at 418 (“the

ancient common-law rule that a peace officer was permit-

ted to arrest without a warrant for a misdemeanor or

felony committed in his presence”); Bad Elk v. United

States, 177 U.S. at 534 (“[A]n officer, at common law, was

not authorized to make an arrest without a warrant, for a

mere misdemeanor not committed in his presence.”);

Kurtz v. Moffitt, 115 U.S. at 498-99 (“By the common law

of England, neither a civil officer nor a private citizen had

the right without a warrant to make an arrest for a crime

48

not committed in his presence, except in the case of

felony”). 7

b. Thus, even if the common law rule governing

misdemeanor arrests is understood as a constitutional’

limitation, the part of the common law principle that has

taken root in American law permits — at the very least -

warrantless misdemeanor arrests, on probable cause, for

any offense committed in the officer’s presence. It follows

that, even if the common law rule - as it has evolved — is

incorporated into the Fourth Amendment, petitioner's

arrest was lawful: his offense was committed in the

arresting officers’ presence, as both lower courts found.

Pet. App. 6, 15-16.

Even petitioner is forced to concede that this finding

is “literally correct” (Pet. Br. 14 n. 16). The Arlington

Heights ordinance makes it “unlawful for any person to

conduct, engage in, maintain, operate, carry on or man-

age a business” without a license. The officers saw a

business office set up to conduct telephone solicitations,

with telephones on employees’ desks (J.A. 45; Ricci Dep.

16-20); there were employees on the premises (J.A. 45;

Ricci Dep. 16-17); petitioner admitted to the officers that

he was engaged in telemarketing (J.A. 64); petitioner

failed to produce a business license when the officers

requested it (J.A. 64-65); and the officers themselves had

searched the public records and not found any such

license (J.A. 70). It is difficult to imagine what else peti-

tioner would have had to do in order to violate the

ordinance in the officers’ presence.

Petitioner’s only apparent answer to this point is that

the “presence” requirement requires that “the wrongdo-

ing be readily apparent to the officers” and “that peti-

tioner did not have a license did not become readily

49

apparent until petitioner searched for, and did not locate,

the license” (Pet. Br. 14 n. 16) — but of course petitioner

did those things in the officers’ presence. In addition, the

officers themselves had had the public records checked.

“If one is apprised by any of his senses that a crime is

being committed; knows it by the evidence of his own

senses; has direct personal knowledge through his sight

or hearing or other sense of it, whereby he is able to

detect it as the act of the accused, -~ it is ‘in his presence’ ”

(Wilgus, 22 Mich. L. Rev. at 680; footnotes omitted). By

this standard the presence requirement was plainly satis-

fied here. In any event, “the in presence requirement is

satisfied when a person admits to the police that he is

presently violating the law” (3 LaFave, Search and Seizure

§5.1(c) at 24 (citing cases)); petitioner acknowledged that

he was operating a business enterprise, and he was

unable to produce a license.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Davip A. Strauss

Counsel of Record

1111 East 60th Street

Chicago, IL 60637

(773) 702-9601

Jerrrey Eowarp Kent

Yevton & Kent, Lrv.

One East Wacker Drive

Chicago, IL 60601

(312) 832-9255

March 25, 1998