Amicus Curiae Brief — Ricci v. Village of Arlington Heights

—

FOR ARGUMENT ee oT * ny

8 MAR se ae

No. 97-501 | sae

In the Supreme Court of the United States

OCTOBER TERM, 1997

— — — —

RANDALL RICCI, PETITIONER

*.

VILLAGE OF ARLINGTON HEIGHTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

WILLIAM C. BROWN

Attorney

Department of Justice

Washington, D. C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the reasonableness clause of the Fourth

Amendment prohibits warrantless arrests for misdemean-

ors that do not involve a breach of the peace.

2. Whether a municipality may, consistent with the

Fourth Amendment, require its police officers to make

full custodial arrests for an alleged violation of a license

ordinance punishable only by fine in order to ensure com-

pliance with the ordinance.

(I)

TABLE OF CONTENTS

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Argument:

I. Warrantless misdemeanor arrests based on pro-

bable cause are reasonable under the Fourth

Amendment regardless of whether the offense

constitutes a breach of the peace” ....................

A.

No source of law supports imposing on

the Fourth Amemdment a “breach of the

peace” requirement for misdemeanor

“Breach of the peace” at common law

often encompassed all violations of the

SOE ————————

Assessing the validity of warrantless arrests

based on the common law distinetion between

felonies and misdemeanors would be un-

1

II. The Fourth Amendment permits arrests based

on probable cause for offenses not punishable by

. ——ů —

A.

Appendix

D 1———— Ua—j—

The Fourth Amendment permits seizures

for offenses punishable only by fine

A distinction in arrest authority based on

punishment poses enforcement difficulties ...

Legislatures have prevented and can

continue to prevent arbitrary law enforce-

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(III)

Page

12

15

= 3S

IV

TABLE OF AUTHORITIES

Akron v. Mingo, 160 N.E.2d 225 (Ohio 1959) .......... 13

Barnett v. United States, 525 A.2d 197 (D.C. Cir.

...... pp 9

Bearden v. Georgia, 461 U.S. 660 (1983) .. 21

Berkemer v. McCarty, 468 U.S. 420 (1984) ............. 18, 26

Burroughs v. Eastman, 59 N.W. 817 (Mich. 1894) . 8

California v. Hodari D., 499 U.S. 621 (1991) 12

Carroll v. United States, 267 U. S. 132 (1925) . 7, 9, 16, 26

City of Boerne v. Flores, 117 S. Ct. 2157 (1997) ....... 13

Conrad v. Lengel, 144 N.E. 278 (Ohio 1924) ............ x

County of Wayne v. City of Detroit, 17 Mich. 390

6 ⸗⸗A⸗⸗⸗⸗⸗⸗⸗⸗ 20

Davis v. United States, 328 U.S. 582 (1946) ............ 9

Ehrlich v. Giuliani, 910 F.2d 1220 (4th Cir. 1990) 25

Fisher v. Washington Metro. Area Transit Auth.,

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

Gerstein v. Pugh, 420 U.S. 108 (1975) . ..

Gustafson v. Florida, 414 U.S. 260 (1973) ..............

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

xxx. ͤͤ³ͤöõñ ——e 9.

RE Bac

TK —

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

Kurtz v. Moffitt, 115 U.S. 487 (1885). . . 9,

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983) .......

Lewis v. United States, 116 S. Ct. 2163 (1996) ........

Long v. Ansell, 293 U.S. 76 (1934) . .

Mayer v. City of Chicago, 404 U.S. 189 (1971)

Michigan v. DeFillippo, 443 U.S. 31 (1979) .............

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

ES SSS

V

Cases Continued: Page

Oleson v. Pincock, 251 P. 23 (Utah 1926) ................ -

Payton v. New York, 445 U.S. 573 (1980) 6, 8, 12, 14

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ......... 22

People v. Controller, 18 Mich. 445 (1869) ............... 20

People v. Edge, 94 N.E.2d 359 (Ill. 1950) ................. 2

Robbins v. California, 453 U.S. 420 (1981) .............. 23, 24

Schmerber v. California, 384 U.S. 757 (1966)........... 24

Staker v. United States, 5 F.2d 312 (6th Cir.

— . 9

State ex rel. Thompson v. Reichman, 188 S. W.

„ —T————TF.p . — 13. 24

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) 9

Tate v. Short, 401 U.S. 395 (1971) .. 21, 22

Tennessee v. Garner, 471 U.S. 1 (1985) .............. 12, 15, 23

Thomas v. State, 614 So.2d 468 (Fla. 1993) ............. 9

United States v. Brewster, 408 U.S. 501 (1972) ...... 14

United States v. Robinson, 414 U.S. 218 (1973) ...... 22

United States v. Ross, 456 U.S. 798 (1982) ............. 23-24

United States v. Sharpe, 470 U.S. 675 (1985) ......... 26

United States v. Trigg, 878 F.2d 1037 (7th Cir.

GREED enuvacecsenscnsnesencensnnnsnesecentemnmacseussensnntnnescensnsceseens 9

United States v. Watson, 423 U.S. 411 (1976).... 8, 10, 12

Warden v. Hayden, 387 U.S. 294 (1987) . 12

Welsh v. Wisconsin, 466 U.S. 740 (1984) ............ 8, 9, 18,

20, 21, 25

White v. Kent, 11 Ohio St. 550 (1860) ....................... x

Whren v. United States, 116 S. Ct. 1769 (1996) ..... 17, 22,

23, 24

Williamson v. United States, 207 U.S. 425

Ar 14. 19

Wilson v. Arkansas, 514 U.S. 927 (1995) 12

Winston v. Lee, 470 U.S. 753 (1985) 23

VII

VI

1 Page Zee 10

U.S. Const. e 17

21564 — — — 6, 13-14 1 17

22 4, 5, 6 K — 17

14 U.S.C. 84 —]ꝓcUcc e 333333333 20 21 U.S.C. 878(a)(3) . 10

15 U.S.C. 1338 ITI „ „ „ rrr eer Tree 20 22 U.S.C. 1978(f)(4)(A) CC 10

16 U.S.C. 422d Pree PP CeCe TTT „„ Tere Te Tee 20 25 U.S.C. 2803(3)(A) ne 10

16 U.S. C 423 9＋6F „„ „ „ 20 28 U.S.C 566(d) PENS Be = SMS TE, Re Le ee 10

16 U.S.C. 66BD(a) ...... .. 10 A n 10

16 U.S.C. SSSddef) ...... 10 Enn 10

16 U.S.C. 670j(b)(1) • —ꝓ— —bꝑV—— „„ „„ „ „„ „„ „ „ „ 0 10 33 U.S.C. 1321(m)(1)(B) 1 10

16 U.S.C, SSe(a) ...... 10 Zn... 3

16 U.S. C. 2060 ............—————. 10 K. 10

16 U.S.C. 727(a) —ᷣ[—̃ R R. * ẽvõVu eT TTT TTT eT TTT TTT TT 332Vꝛ rT TTT 10 50 U.S.C. App. 2411(a) CO EEL, Ces ORG 10

16 U.S.C. Ti .cccecccoeeccccescccsessccsess 3 10 1 ——— *

D RS RARER ION 10 Ande te. 6 AMEND Oa a te

16 U.S.C. 916g — R —EP—PPPU—EUUGP]UPP! K RRR 3 TTC „„ „„ „ 10 Ariz. Rev. Stat. Ann. 8 13-3883 (West 1997) OS ee 11. la

e eps mea 10 Ash. Code Aan. 9 1841-100hND Gta 100)

16 U.S.C. 971f(a)(2) ———— 2ũ' ͤ ECCS CCC 3W2⁊5;50 a 33V25 „„ 10 Cal. Penal Code § 836(a)(1) (West Supp. 1998) Seta la

16 U.S.C. 972g(d) Cooccccccoccccoccoscoesoscosocccooeoecoceceoeeeoeooees 10 Colo. Rev. Stat. Ann. N 16-3-102(b) (West 1998) 1 1a

16 U.S.C. 1172 ——— — ũ VVWVWRUll „% „„ CeCe TTC ee ee Te ee Te eT ee ee 10 Conn. Gen. Stat. Ann. § 54-1f(a) (West 1994) 8 la

16 U.S.C. 1338(b) TTT ITIL TTT TTT TTT TTT TTT TTT TTT TTT TTT TTT Tee 10 D.C. Code Ann. 8 23-581(a)(1)(B) (1996) ee — la

| eRe ati ai 10 . —

eee e 10 Fla. Stat. Ann. § $21.66(1) (West 1996 & Supp.

16 U.S.C. SB T5(D) ...... ...... 10 r a la

16 U.S.C. BEOG(CK IMA) seccesccoscccescccescsscssescscecssescocso 10 thin —

rn 20 3 *

r 20 3 —— —

r SEER TES eR 18 5 IB. Comp. Stat. Ann. § 0981 (Wen 1000) *

e se eee Monee enmemgae 20 726 m Comp. Stat. Ann. § G/107-2 (West 1988). *

r 20 ih Code Aen. 60ab4ee eee ee —

18 U.S.C. 495 ——— ² 91. 3ů3ũ¹ „„ „„ „„ „„ „„ „„ „„ „ „ „ „ 6 0 18 Iowa Code Ann. 8 804.7 (1994) EES ee 2a

r 17, 18 a —

18 U S.C. 3052 ů—[ Pꝙ ꝰ OOOOOOOOO—̃õ30ũ3rũ 4 1. 10 Ky Rev. Stat. Ann. 8 431.005(1)(d) (Baldwin 1997) . 2a

18 U S.C. 3053 ů—[ H HH—H—H e ꝓẽñ1C-0ůb KK gj 2—222W3ũ—õi'ũ 23 1. 10 La. Code Crim. Proc. Ann. art. 213 (West 1991) ae 2a

18 U.S.C. BOBGLEM C) cccccsccesccesccssssesessesccecooeecoeeccce 10 — ——

D 10 »» tian *

D 10 1 10 —

r 10 A. Aan. Cole ont. $1,000 OD —

VIII

Statutes—Continued:

Mass. Ann. Laws ch. 272, § 60 (Law. Co-op. 1994 &

91 — . —

Mass. Gen. Laws Ann. ch. 276, § 28 (West 1983 &

SD, GD ——

Mich. Comp. Laws Ann. (West):

D. ⅛•5—:e . K

§ 764.15(1)(a) (1982 & Supp. 1997) . . . .. . .

Minn. Stat. Ann. § 629.34 (West 1983) . . .. . . ..

Miss. Code Ann. § 45-3-21(1)(a)(vi) (1991) ..................

Mo. Ann. Stat. § 479.110 (Vernon 1987)

Mont. Code Ann. § 46-6-311(1) (1997). . . . .

N.C. Gen. Stat. § 15A-401(b) (1997) . ...

N. D. Cent. Code § 29-06-15 (1991) . . ...

N. H. Rev. Stat. Ann. § 614.7 (1996)

N. J. Stat. Ann. (West):

LS | 7... % 0050

§ 53:2-1 (1986 & Supp. 1997) . . .. . ....

N. M. Stat. Ann. § 66-2-12(A)(2) (Michie 1978 & 1994

8 — —

Neb. Rev. Stat. (1996):

— . —.

— . ——

Nev. Rev. Stat. § 171.172 (1996) . ... . . .

N.Y. Laws Ann. § 140.10 (Consol. 1992 & Supp.

7888C———WWWWWWWWWWEPWWWW

Ohio Rev. Code Ann. § 2935.03 (Baldwin 1997) ..........

Okla. Stat. Ann. Tit. 22, § 196 (West 1992) ................

Or. Rev. Stat. § 133.310(1)(i) (1996) . .. .. . ..

71 Pa. Cons. Stat. Ann. § 25 2a) (West 1990) ..............

R. I. Gen. Law. § 12-7-3 (1994) . .

S. C. Code Ann. § 17-13-3 (Law. Co- op. 1976 & Supp.

Z —— ß — ao Sa

S. D. Codified Laws Ann. § 23A-3-2 (Michie 1988 &

28899999 ———3è

Tenn. Code Ann. § 40-7-103 (1997)

Tex. Crim. Code Ann. art. 14.01 (West 1977) .............

Utah Code Ann. § 10-3-915 (1996)

Va. Code Ann. § 19.2-81 (Michie 1995) .

W. Va. Code Ann. § 62-10-9 (1990 & Supp. 1997) ........

2 F —

S £5 Feb 1 g 8

+

F FFF FSF S FSEEEE KEL

IX

Statutes and rule Continued: Page

Wash. Rev. Code Ann. § 10.31. 100 (West 1990 & Supp.

—— 5a

Wis. Stat. Ann. § 968.07(1)(D) (West 1985) ................ 5a

Wyo. Stat. Ann. § 7-2-102 (Michie 1995 & Supp.

193 ů ů ——— 5a

Vt. R. Crim, (a) (1995) . . . .. . . ...... . . ee 5a

Village of Arlington Heights, III., Code of Ordinances

(1994):

n ee 2,3

ae 2,3

eee enen 2, 3

Miscellaneous:

4 W. Blackstone, Commentaries on the Laws of

— — 9, 25

Bureau of Justice Assistance, Regional Seminar

Series on Developing and Implementing Anti-

stalking Codes (June 1996) . . 16

Bureau of Justice Statistics, Correctional Populations

in the United States 1995 (May 1997) . . . .. 21

Halsbury’s Laws of England:

JJ... ce 7, 8

Vol. 10 (Sd ed. 1955) . . . . . „ 7, 8

Institute for Law and Justice:

Domestic Violence: A Review of State Legislation

Defining Police and Prosecution Duties and

0 Ee 16, 17

State Stalking Legislation: A Status Report—1997

r è5bQ ... . ‚⏑½⏑ↄÜ⏑—Mĩẽ—e0˖õᷓ᷑ ᷑ͤ 16

U.S. General Accounting Office:

Federal Law Enforcement: Investigative Authority

and Personnel at 13 Agencies (GAO/GGD-96-154,

8 ——ů ů ů — ů —— — 10

Miscellaneous Continued: Page

Federal Law Enforcement Investigative Authority &

Personnel of 32 Organizations (GAO/GGD-97-93,

2 10

3 W. LaFave, Search and Seizure (3d ed. 1996) 9, 11

X

W. LaFave, Arrests: The Decision to Take a Suspect In the Supreme Court of the United States

Rar 2⁵

Model Code of Prearraignment Procedure (1975) 11 OcTOBER TERM, 1997

Office of Justice Programs:

Domestice Violence and Stalking: The Second No. 97-501

Annual Report to Congress under the Violence „

Against Women Act (July 1997) . . . . .. . 16

Recidivsion of Prisoners Released in 1983 (Apr. RANDALL RICCI, PETITIONER

, ͤ ͤ— 0.009 21 v

W. Schroeder, Warrantless Misdemeanor Arrests

poo dy Fourth Amendment, 58 Mo. L. Rev. 71 - VILLAGE OF ARLINGTON HEIGHTS

J. Stephen, A History of the Criminal Law of

England (1883): ON WRIT OF CERTIORARI

8 ͤͤ 33 15 TO THE UNITED STATES COURT OF APPEALS

K 7 15 FOR THE SEVENTH CIRCUIT

1K . . 19

J. Story, Commentaries on the Constitution of the

: BRIEF FOR THE

United States (Carolina Academic Press 1987) ....... 14 UNITED STATES AS AMICUS CURIAE

H. Voorhees, The Law of Arrest in Civil and SUPPORTING RESPONDENT

e 11. 13

H. Wilgus, Arrest Without a Warrant, 22 Mich. L.

Rev. 541 (1923-1924) — 8. 11. 13, 15, 17, 18 INTEREST OF THE UNITED STATES

This case presents two issues under the Fourth Amend-

ment’s reasonableness clause: whether police officers may

make warrantless arrests for misdemeanors that do not

involve breaches of the peace, and whether a police depart-

ment may establish a policy requiring full custodial

arrests for alleged violations of license ordinances punish-

able only by a fine. Federal law enforcement officers are

authorized by statute to make warrantless arrests for

misdemeanors committed in their presence, without any

limitation to violations involving breaches of the peace

or to violations punishable by more than a fine. See, e.g.,

18 U.S.C. 3052, 3053. In addition, the United States fre-

quently prosecutes cases based on evidence that comes to

(1)

2

light as the result of arrests by state or local authorities -

enforcing their own laws, under their own policies. The

United States therefore has a significant interest in the

resolution of this case.

STATEMENT

1. Illinois law authorizes municipalities, like respon-

dent, to “pass all ordinances and make all rules and regu-

lations proper or necessary to carry into effect the powers

granted to municipalities, with such fines or penalties as

may be deemed proper.” 65 Ill. Comp. Stat. Ann. § 5/1-2-1

(West 1996). Municipalities may also declare violations

of their ordinances to be misdemeanors punishable by up

to six months in the penitentiary. Id. § 5/1-2-1.1. Failure

to pay fines or penalties can also result in imprisonment

of up to six months. Id. § 5/1-2-1. The municipality may

prosecute violations of its penal ordinances as criminal

offenses. Id. §5/1-2-1.1. Illinois law further author-

izes peace officers to arrest persons if the officers have

“reasonable grounds to believe that the person is committ-

ing or has committed an offense.” 725 Ill. Comp. Stat. Ann.

§ 5/107-2 (West 1992). The term “offense” includes viola-

tions of municipal ordinances. People v. Edge, 94 N.E.2d

359, 363 (III. 1950).

The Village of Arlington Heights generally requires

businesses operating within its jurisdietion to be licensed.

Village of Arlington Heights, III., Code of Ordinances

(Ordn.) §§ 14-3001, 14-3002 (1994) (see J. A. 77-78). The

Village declares it “unlawful for any person to con-

duct, engage in, maintain, operate, carry on or manage a

business * * * without first having obtained a license for

such business.” Ordn. § 9-201. Violators are subject to a

fine of up to $500 for each offense. Ibid. A separate offense

occurs each day during which the business operates with-

out a license. Ibid. The purpose of the license require-

3

ment is so the Village “can regulate the businesses for the

safety and welfare of the community.” J.A. 33.

2. Petitioner Randall Ricci owns and operates Rude-

way Enterprises, a telemarketing business. Pet. App. 2,

12. Rudeway sells advertising and conducts fundraising

for a labor union, the Combined Counties Police Associa-

tions. Id. at 2. After receiving complaints from citizens

who were targets of Rudeway’s solicitations, the Arling-

ton Heights police department determined that peti-

tioner was operating his telemarketing business without

a license. Ibid.; see Ordn. 58 9-201, 14-3001, 14-3002. The

police also uncovered an outstanding arrest warrant for

one of petitioner’s employees. Pet. App. 2.

Detectives went to petitioner’s place of business and

arrested the employee pursuant to the warrant. Pet. App.

2. At that time, petitioner admitted to the detectives

that he was operating without a business license. bid.

Pursuant to police department policy, petitioner was

placed under arrest and taken to the police station. Ibid.

Petitioner was detained for approximately one hour while

officers processed his arrest sheet, the Local Ordinance

Complaint, and bond. Id. at 2-3. While petitioner was at

the police station, his wife obtained the required business

license for Rudeway. The charges against petitioner were

later dismissed. Id. at 3.

3. Petitioner filed suit under 42 U.S.C. 1983 against

the Village and the police officers who arrested him. J.A.

3-5. The complaint charged that the officers engaged in

an unconstitutional search of the business premises,

arrested petitioner without probable cause, and effected an

unconstitutional seizure by arresting him for a fine-only

offense. J.A. 4-5. Despite “the absence of a compensable

injury,” the district court denied summary judgment on

petitioner’s search claim because of a disputed question of

fact. Pet. App. 14-15. The district court granted sum-

4

mary judgment for the police officers on the unlawful

arrest claim. The court found that the officers had prob-

able cause to arrest petitioner because “[tJhe officers

observed Mr. Ricci committing thle] unlawful act” of

“operating Rudeway Enterprises without a business li-

cense.” Id. at 16. Finally, the district court rejected

petitioner’s contention that the Village policy requiring

arrests for violations of the business licensing ordinance

violates the Fourth Amendment, holding that the arrest

was “reasonable” because the crime had been committed in

the officers’ presence. Id. at 18.

4. The court of appeals affirmed. The court held that

the arrest was permissible because the officers had prob-

able cause and the authority to arrest under state law.

Pet. App. 4. The court of appeals indicated that, because

the arrest was supported by probable cause, this is

“not one of those extraordinary cases that require us to

conduct a balancing analysis.” Id. at 8. The court of ap-

peals nonetheless noted that the arrest would satisfy a

balancing of the relevant factors because of (i) the pro-

longed duration of petitioner’s violation of the ordinance,

which subjected him to “a potential fine of tens of thou-

sands of dollars,” and (ii) the brief (one hour) period of

detention by the police. Id. at 7. “Further,” the court of

appeals concluded, “a neutral magistrate following Illinois

law would surely have issued a warrant in this case.” Id.

at 8 n. 1.

1 Petitioner did not appeal the dismissal of his unlawful arrest

claim, and the parties subsequently settled the search claim. Pet. App.

3. Neither of those issues was presented in the petition for certiorari.

2 The court of appeals also rejected petitioner’s effort to invoke

the Warrant Clause of the Fourth Amendment. The court noted that

petitioner had waived that claim, and that petitioner “conceded at oral

argument that, had a warrant been issued in this case, the arrest

5

SUMMARY OF ARGUMENT

Petitioner’s arrest for his violation of municipal law

satisfied the requirements of the Fourth Amendment.

The arrest was supported by probable cause to believe that

petitioner violated the local law; indeed, he admitted

his violation at the time of arrest. Because probable cause

existed and the seizure was not effected in an extra-

ordinary or unusual manner, the arrest was reasonable

within the meaning of the Fourth Amendment.

1. There is no basis for concluding that the Fourth

Amendment permits a warrantless arrest for a misde-

meanor only if the violation involves a breach of the peace.

The common law expressly recognized that the arrest

authority of police could be expanded by statute to include

arrests like the one at issue in this case, and the long-

standing practice of the federal government and every

State confirms that understanding. Moreover, the phrase

“breach of the peace” itself lacked an established meaning

at common law, such that, even if it were incorporated into

the Fourth Amendment, it would not restrict arrests

in the manner advocated by petitioner. Indeed, this Court

has recognized that the congressional immunity from

arrest for a “breach of the peace” found in Article I,

Section 6 of the Constitution embraces all violations of

the criminal law. Finally, the reasonableness of an arrest

under the Fourth Amendment should not turn on malle-

able and diverse legislative classifications of crimes as

misdemeanors or felonies, or on variable judicial defini-

tions of “breach of the peace.”

2. The fact that the ordinance at issue is punishable

only by a fine does not mean that the Fourth Amendment

bars a custodial arrest. The common law did not foreclose

would have been reasonable under the Fourth Amendment.” Pet. App.

8 & n.1; see also id. at 18 n.4.

6

arrests for fines, and established practice permits them.

Furthermore, the propriety of an officer’s decision to

arrest based on probable cause—and his potential liability

for money damages—should not vary based on the punish-

ment that ultimately ensues weeks, months, or years

later. And there is no basis for concluding that a juris-

diction’s decision to penalize a violation by a fine (rather

than imprisonment) means that it is less worthy of effec-

tive enforcement measures. Where probable cause exists,

a jurisdiction’s decision to enforce criminal violations

through a custodial arrest is not constitutionally suspect

simply because a less intrusive enforcement method may

arguably be available.

ARGUMENT

I. WARRANTLESS MISDEMEANOR ARRESTS

BASED ON PROBABLE CAUSE ARE REA-

SONABLE UNDER THE FOURTH AMEND-

MENT REGARDLESS OF WHETHER THE

OFFENSE CONSTITUTES A “BREACH OF

THE PEACE”

The Fourth Amendment, made applicable to the States

through the Fourteenth Amendment, Payton v. New

York, 445 U.S. 573, 576 (1980), provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

U.S. Const. Amend. IV. Outside the home, the Fourth

Amendment does not require a warrant in order to jus-

tify an arrest based on probable cause. Payton, 445

7

U.S. at 590-591; Gerstein v. Pugh, 420 U.S. 108, 113 (1975).

Rather, a police officer’s “on-the-scene assessment of

probable cause provides legal justification for arresting

a person suspected of crime, and for a brief period of de-

tention to take the administrative steps incident to

arrest.” Gerstein, 420 U.S. at 113-114. There is no excep-

tion to that rule for misdemeanors not involving a breach

of peace.

A. No Source Of Law Supports Imposing On The

Fourth Amendment A “Breach Of The Peace” Re-

quirement For Misdemeanor Arrests

The common law rule for warrantless misdemeanor

arrests “[was] sometimes expressed” as limited to “when a

breach of the peace has been committed in [the officer’s]

presence or when there is reasonable ground for supposing

that a breach of the peace is about to be committed

or renewed in his presence.” Carroll v. United States,

267 U.S. 132, 157 (1925) (quoting 9 Halsbury’s Laws of

England (Halsbury) pt. III, §612, at 299 (Ist ed. 1909)).

But that statement of the common law does not suggest

that a parallel rule should exist under the Fourth Amend-

ment. The common law itself, this Court’s cases, and a

pattern of arrest authorization statutes make clear that

Congress and the States may expand upon the common law

arrest authority of law enforcement officers.

1. The common law specifically recognized that an

officer’s arrest authority could be expanded by statute. 9

Halsbury § 613, at 300-301 & nn. d, e, 303 n.f; 10 Halsbury’s

Laws of England § 632, at 342 (3d ed. 1955) (“An arrest

without a warrant may be under a power conferred by com-

mon law or by statute.”). Thus, under Section 18 of

the Pedlar’s Act, a police officer could arrest a pedlar who

“refuses to show his certificate or has no certificate.” 9

Halsbury, at § 613, at 302 n.e. Similarly, under Section 6

8

of the Hawkers Act, an “officer of the peace (could) arrest

a person found committing an offence against that section

(hawking without licence etc.).” 9 Halsbury, at § 613, at

302 n.e.

Accordingly, “it is generally recognized today that the

common law authority to arrest without a warrant in mis-

demeanor cases may be enlarged by statute.” Welsh v.

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

(internal quotation marks omitted); H. Wilgus, Arrest

Without A Warrant, 22 Mich. L. Rev. 541, 550 (1923-

1924) (“The states may, by statute, enlarge the common

law right to arrest without a warrant, and have quite

generally done so or authorized municipalities to do so,

as for example, an officer may be authorized by statute

or ordinance to arrest without a warrant for various

misdemeanors and violations of ordinances, other than

breaches of the peace, if committed in his presence.”)

(citing cases), 705-706 (footnotes omitted).

2. This Court’s descriptions of the common law rule

for misdemeanor arrests, moreover, have generally omit-

ted the breach of the peace limitation and have focused,

instead, on the requirement that the misdemeanor be com-

mitted in the officer’s presence. See, e.g., Payton, 445 U.S.

at 590 n.30 (“The cases construing the Fourth Amendment

thus reflect the ancient common-law rule that a peace

officer was permitted to arrest without a warrant for a

misdemeanor or felony committed in his presence.”);

United States v. Watson, 423 U.S. 411, 418 (1976) (same);

Johnson v. United States, 333 U.S. 10, 15 (1948); Carroll,

See also Oleson v. Pincock , 251 P. 23,25 (Utah 1926); Burroughs

v. Eastman, 59 N.W. 817, 819-820 (Mich. 1894); White v. Kent, 11 Ohio

St. 550, 554 (1860); Conrad v. Lengel, 144 N. E. 278, 278 (Ohio 1924) (ped-

dling without city license); 10 Halsbury, §§ 641, 642, at 347-351 (dis-

cussing statutory powers of police to arrest without a warrant).

9

267 U.S. at 156 (“The usual rule is that a police officer

* * * may only arrest without a warrant one guilty of a

misdemeanor if committed in his presence.”); John Bad

Elk v. United States, 177 U.S. 529, 534 (1900) (“[AJn officer,

at common law, was not authorized to make an arrest with-

out a warrant, for a mere misdemeanor not committed

in his presence.”); Kurtz v. Moffitt, 115 U.S. 487, 498-499

(1885); Davis v. United States, 328 U.S. 582, 614 (1946)

(Frankfurter, J., dissenting).*

The common law “breach of the peace” limitation that

petitioner seeks to incorporate into the Fourth Amend-

ment thus has not been treated as an essential aspect

of the common law arrest power. See also 4 W. Blackstone,

Commentaries on the Laws of England 289 (1769). Like-

wise, most lower courts that have addressed the issue have

held that the Fourth Amendment does not bar warrantless

misdemeanor arrests, regardless of whether the offense

constitutes a breach of the peace or is punishable only by

fine. See Higbee v. City of San Diego, 911 F.2d 377, 379-

380 (9th Cir. 1990); United States v. Trigg, 878 F.2d 1037,

1041 (7th Cir. 1989); Fisher v. Washington Metro. Area

Transit Auth., 690 F.2d 1133, 1139 & n.6 (4th Cir. 1982);

Street v. Surdyka, 492 F.2d 368, 370-373 (4th Cir. 1974).°

3. The breach of the peace limitation on misdemeanor

arrests also finds no support in the legislation of Congress

4 The requirement that the misdemeanor be committed in the

officer's presence is not at issue in this case. Cf. Welsh, 466 U.S. at 756

(White, J., dissenting) (“But the requirement that a misdemeanor must

have occurred in the officer’s presence to justify a warrantless arrest

is not grounded in the Fourth Amendment.”); 3 W. LaFave, Search and

Seizure § 5.1(b), at 21 (3d ed. 1996).

5 But see Staker v. United States, 5 F.2d 312, 314 (6th Cir. 1925);

Barnett v. United States, 525 A.2d 197, 199-200 (D.C. App. 1987) (civil

violation); Thomas v. State, 614 So.2d 468, 470-471 (Fla. 1993) (civil

violation).

10

or the States. While Congress has generally retained the

“in the presence” requirement for misdemeanor arrests

by federal law enforcement officers, no federal statute con-

fines misdemeanor arrests to breaches of the peace. See,

e.g., 18 U.S.C. 3052 (FBI agents authorized to “make ar-

rests without warrant for any offense against the United

States committed in their presence”), 3053 (same, for

U.S. marshals and deputies), 3056(c)(1)(C) (same, for

Secret Service).“ “Because there is a strong presumption

of constitutionality due to an Act of Congress, especially

when it turns on what is reasonable, Watson, 423 U.S.

at 416 (quotation marks omitted), Congress’s consistent

omission of a breach of the peace requirement for war-

rantless misdemeanor arrests counsels strongly against

See also 18 U.S.C. 3061(a)(2) (postal inspectors may make ar-

rests without warrant for offenses against the United States committed

in their presence”), 3063(a)(3) (same for Environmental Protection

Agency officers); 19 U.S.C. 1589a(3) (same for customs officers); 21

U.S.C. S Sag) (same for Drug Enforcement Administration officers);

25 U.S.C. 2803(3)A) (Bureau of Indian Affairs officers may “make an

arrest without a warrant for an offense committed in Indian country if

* * * the offense is committed in the presence of the employee”); 28

U.S.C. 566(d) (in protecting courts and federal judicial officers, U.S.

marshals may “make arrests without warrant for any offense against

the United States committed in his or her presence”); see generally

U.S. General Accounting Office, Federal Law Enforcement: Investiga-

tive Authority and Personnel at 32 Organizations App. II & III

(GAO/GGD-97-93, Sept. 1996); U.S. General Accounting Office, Federal

Law Enforcement: Investigative Authority and Personnel at 13 Agen-

cies App. | & II (GAO/GGD-96-154, Sept. 1996). Congress has also

authorized certain law enforcement officers to effect warrantless ar-

rests for specific offenses, some of which are not felonies. See, g., 16

U.S.C. 668b(a), 668dd(f), 670j(b\(1), 690e(a), 706, 727(a), 742j-1(d), Sie-

Kb), 916g, 959(d\1), 971flaX2), Y72gid), 1172, 1338(b), 1377(d\(1),

1540(e (3), 3375(b), 5506(cM 1A); 21 U.S.C. 372; 22 U.S.C. 1978(f)(4) A);

33 U.S.C. 446, 452, 1321(m\(1)(B); 45 U.S.C. 413; 50 U.S.C. App. 2411(a).

11

incorporating such a limitation into the Fourth Amend-

ment.

All fifty States and the District of Columbia, like wise,

authorize at least some (if not all) of their law enforcement

officers to execute warrantless misdemeanor arrests in

the absence of a breach of the peace. See, e.g., Ala. Code

§ 15-10-3(a)(1) (1996) (authorizing warrantless arrests

for any “public offense” committed in the presence of

the officer); Alaska Stat. § 12.25.030(a)(1) (Michie 1996)

(authorizing arrest without a warrant “for a crime com-

mitted * * * in the presence of the person making

the arrest”); Ariz. Rev. Stat. Ann. § 13-3883 (West 1997)

(authorizing arrest without a warrant when a misde-

meanor has been committed in the officer’s presence).

The Model Code of Prearraignment Procedure similarly

authorizes warrantless arrests where the officer has

reasonable cause to believe that the person has committ-

ed “a misdemeanor or petty misdemeanor in the officer’s

presence.” Model Code of Prearraignment Procedure

§ 120.1, at 13 (1975). Academic scholars have also long ac-

knowledged the propriety in this country of warrantless

arrests for misdemeanors even if they do not amount to a

breach of the peace.

7 We have collected representative state statutes in an appendix

to this brief. App., infra, la-ba. See also W. Schroeder, Warrantless

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

847 (1993).

8 See, e.g., H. Voorhees, The Law of Arrest in Civil and Criminal

Actions § 131, at 78-79 (1904) (“(Bly authority of statute, city charter,

or ordinance, [an officer] may arrest without a warrant, one who,

within his jurisdiction, commits a misdemeanor other than a breach

of the peace, as, for example, one who is violating a city ordinance,

without breaking the peace.”) (footnotes omitted), § 146, at 85; Wilgus,

supra, at 541, 550; 3 W. LaFave, supra, § 5.1(b), at 13-22.

12

4. In some contexts, common law limitations that take

root in this country may suggest that a similar con-

straint applies under the Fourth Amendment. See Wilson

v. Arkansas, 514 U.S. 927, 933 (1995) (common law “knock

and announce” principle incorporated into Fourth Amend-

ment in part because the rule “was woven quickly into the

fabric of early American law”). But this Court “has not

simply frozen into constitutional law those law enforce-

ment 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. at 591 n.33). This is

especially true when the Court is analyzing the appropri-

ate objects or targets of a search or seizure, rather than

defining what constitutes a “search” or “seizure” in the

first instance. See California v. Hodari D., 499 U.S. 621,

627 n.3 (1991); see also Payton, 445 U.S. at 600 (noting that

“custom and contemporary norms necessarily play * * *

a large role in the constitutional analysis” of what is

“reasonable” under the Fourth Amendment); Warden v.

Hayden, 387 U.S. 294, 300-310 (1967) (rejecting common-

law prohibition against searches for “mere evidence”).

In this context, where the common law itself acknowl-

edged that legislatures were not bound by a breach-of-the-

peace limitation, and where “the judgment of the Nation

and Congress has for so long been to authorize warrant-

less public arrests on probable cause” for misdemeanors,

Watson, 423 U.S. at 423, transposition of a breach of the

peace limitation into the Fourth Amendment is unwar-

ranted.

B. “Breach of the Peace” At Common Law Often

Encompassed All Violations Of The Criminal Law

“Breach of the peace” had different meanings at common

law. In the face of the range of meanings employed,

petitioner’s suggestion that a restrictive definition apply

13

as a matter of constitutional law is particularly unjusti

fied. .

While some definitions focused (like petitioner) on con-

duct that threatened violence, disorder, or disruption, the

common law at other times employed “breach of the peace”

to refer to all violations of the criminal law. See, e.g., H.

Voorhees, The Law of Arrest in Civil and Criminal

Actions § 117, at 72 (1904) (“a breach of the public peace is

the invasion of the security and protection which the law

affords every citizen”); Wilgus, supra, at 574 (under the

statute of Charles II, “it was held that every indictable

offense was constructively a breach of the peace

[and] disobeying any act of parliament was a breach of

the peace”) (footnotes omitted); City of Boerne v. Flores,

117 S. Ct. 2157, 2173 (1997) (Scalia, J., concurring) (citing

English cases to the effect that “[E]very breach of law is

against the peace.”), 2174 & n.2.°

Indeed, this Court has adopted the broader construction

of “breach of the peace” in interpreting the legislative

immunity from arrest granted Members of Congress by

Article I, Section 6 of the Constitution, which in relevant

part provides: “The Senators and Representatives * * *

shall in all Cases, except Treason, Felony and Breach

of the Peace, be privileged from Arrest during their Atten-

See also Akron v. Mingo, 160 N.E.2d 225, 228-231 (Ohio 1959);

State ex rel. Thompson v. Reichman, 188 S. W. 225, 228 (“The term

‘breach of the peace’ is generic and includes all violations of public

peace or order, or acts tending to the disturbance thereof.”), 230, on

reh’g, 188 S.W. 597, 601 (Tenn. 1916) (What can be more logical than

to say that every violation of a criminal law is a breach of the peace of

the state?”). The common law also recognized that the crimes con-

stituting a breach of the peace could be expanded by statute. Wilgus,

supra, at 575 (noting that the phrase had been expanded to include, for

example, desecrating the national flag and transporting intoxicating

liquor); Reichman, 188 S. W. at 607.

14

dance at the Session of their respective Houses, and in

going to and returning from the same.” As this Court has

explained:

When the Constitution was written the term “breach

of the peace” did not mean, as it came to mean later, a

misdemeanor such as disorderly conduct but had a

different 18th century usage, since it derived from

breaching the King’s peace and thus embraced the

whole range of crimes at common law.

United States v. Brewster, 408 U.S. 501, 521 (1972); see

also Williamson v. United States, 207 U.S. 425, 444 (1908)

(“Now, as all crimes are offenses against the peace, the

phrase ‘breach of the peace’ would seem to extend to all

indictable offenses, as well those which are in fact at-

tended with force and violence, as those which are only

constructive breaches of the peace of the government,

inasmuch as they violate its good order.”); J. Story, Com-

mentaries on the Constitution of the United States § 438,

at 308 (Carolina Academic Press 1987) (same).

Petitioner’s argument thus attempts to imply into one

provision of the Constitution an interpretation of “breach

of the peace” that is quite different from the meaning the

Framers ascribed to that phrase when drafting Article I.

At a minimum, the established constitutional definition

and other common law authority demonstrate that the

meaning of “breach of the peace” was sufficiently unset-

tled to preclude elevating petitioner’s reading of the

phrase to the level of constitutional rule. See Payton, 445

U.S. at 598.

15

C. Assessing The Validity Of Warrantless Arrests

Based On The Common Law Distinction Between

Felonies And Misdemeanors Would Be Unworkable

Petitioner’s effort to impose constitutional limits on

misdemeanor arrests is predicated upon an anachronistic

distinction between felonies and misdemeanors that can-

not be translated into modern criminal law. At common

law, felonies consisted of crimes punishable by death or

forfeiture of land. See 1 J. Stephen, A History of the

Criminal Law of England 458 (1883)."° The term “misde-

meanor” comprised all remaining crimes except treason.

E. g., Wilgus, supra, at 572.

Because of the statutory codification of criminal law in

most American jurisdictions, many of the crimes consid-

ered to be misdemeanors at common law—such as assault,

attempted felonies, forgery, and kidnapping—are now con-

sidered felonies. See, e.g., Garner, 471 U.S. at 14, 20

(statutory changes in the classification of crime have

“made the assumption that a ‘felon’ is more dangerous

than a misdemeanant untenable”; distinction is “highly

technical” and “arbitrary”)." Indeed, “{iJn this country

there is no-generaily accepted meaning of the[] terms”

felony and misdemeanor “except as given by statute.”

See also Garner, 471 U.S. at 13-14; Kurtz, 115 U.S. at 499; Voor-

hees, supra, § 115, at 70-71; Wilgus, supra, at 569.

i See also Wilgus, supra, at 573; 1 Stephen, supra, at 489 (“A

large number of misdemeanours were created by statute at different

times, but especially in the eighteenth and nineteenth centuries, which

differ in no essential respect from the common crimes distinguished as

felonies.”); 2 Stephen, supra, at 189, 193 (“[S]ince the substitution of

milder punishments for death, the distinction [between felonies and

misdemeanors] has become unmeaning and a source of confusion, espe-

cially as many offences have been made misdemeanours by statutes,

which render the offender liable to punishments as severe as those

which are now usually inflicted upon persons convicted of felony.”).

16

Wilgus, supra, at 570; Carroll, 267 U.S. at 158 (“Under our

present federal statutes, [the distinction between felonies

and misdemeanors] is much less important and Congress

may exercise a relatively wide discretion in classing parti-

cular offenses as felonies or misdemeanors.”).

Petitioner’s proposed constitutional rule, if construed

literally, would thus place undue weight on the vagaries

of legislative classifications of crime. As a result, the

same crime committed by the same defendant would

‘constitutionally be subject to warrantless arrest in one

jurisdiction and to only a summons or citation in another

jurisdiction. For example, stalking by telephone or letter,

or violation of a protective order in a domestic violence

case (neither of which would necessarily have been con-

sidered a breach of the public peace at common law) is

treated as a felony in some States and a misdemeanor

in others. See U.S. Dep’t of Justice, Office of Justice

Programs, Domestic Violence and Stalking: The Second

Annual Report to Congress under the Violence Against

Women Act App. A (July 1997) (chronicling state legis-

lation).” And the State of New Jersey classifies all of its

2 See also U.S. Dep't of Justice, Bureau of Justice Assistance,

Regional Seminar Series on Developing and Implementing Anti-

stalking Codes 53-55 (Table 9) (June 1996); Institute for Law and

Justice, Domestic Violence: A Review of State Legislation Defining

Police and Prosecution Duties and Powers (Domestic Violence) 2, 7-10,

25 (March 1998); Institute for Law and Justice, State Stalking Legisla-

tion: A Status Report—1997 (State Stalking Legislation), at 5 (Exh.1)

and App. 1 & 2 (Mar. 1998).

At least 28 States and the District of Columbia, moreover, mandate

or strongly encourage arrests in stalking and domestic violence cases

as a matter of policy. Petitioner’s proposed construction of the Fourth

Amendment could imperil some of those important law enforcement

—policies and programs. State Stalking Legislation, supra, at 19 (Exh.

4) (documenting States that authorize arrests without a warrant for

stalking); Domestic Violence, supra, at 12 (“Today all but 1 state

17

crimes as misdemeanors. N.J. Stat. Ann. § 2C:1-4 (West

1995). This Court should be hesitant to constitutionalize

legislative labels that are often the “result[{] of evolution

or accident” (Wilgus, supra, at 568), and to adopt a rule

under which “the search and seizure protections of the

Fourth Amendment are so variable” (Whren v. United

States, 116 S. Ct. 1769, 1775 (1996))."

The misdemeanor/felony distinction between probable

cause arrests would also prove difficult to apply by police

officers on the street. Frequently the line between felony

and misdemeanor conduct is dependent upon the offender’s

prior criminal history or the amount of money or of a

drug at issue. See, e.g., 18 U.S.C. 510 (forgery of Treasury

checks under $500 is a misdemeanor); 21 U.S.C. 841, 842,

844. A police officer who witnesses the forgery of a Social

Security check or an individual possessing an unknown

quantity of drugs (neither of which would necessarily

qualify as a breach of peace at the common law) will not

know whether a warrantless arrest is permitted until

after the offender is seized, the evidence collected, and

authorizes warrantless arrests of domestic violence offenders based

solely on a probable cause determination,” and “{iJn 20 states and the

District of Columbia police arrest is required when the officer

determines that probable cause exists.”), 13, 76 (48 states authorize

warrantless arrests based on a probable cause determination that a

protective order has been violated). The laws of thirteen States

explicitly bar police from simply issuing citations or appearance tickets

in lieu of a formal arrest in domestic violence cases. Domestic Violence,

supra, at 16.

8 These concerns equally counsel against amici ACLU’s and

NACDL’s argument (ACLU Br. 22-28; NACDL Br. 15-17) that warrants

should be required for misdemeanor arrests. The need to preempt harm

to victims, prevent offenders from disappearing, confirm an offender's

identity, and protect against the destruction of evidence justifies per-

mitting arrests outside the home based on probable cause alone, regard-

less of whether an offense can be deemed a breach of the peace or not.

18

the defendant’s criminal history checked. See Berkemer

v. McCarty, 468 U.S. 420, 430 (1984) (“The police often are

unaware when they arrest a person whether he may

have committed a misdemeanor or a felony. * * * Indeed,

the nature of his offense may depend upon circumstances

unknowable to the police, such as whether the suspect has

previously committed a similar offense or has a criminal

record of some other kind.“) (footnote omitted).

Petitioner and his amici suggest (Pet. Br. 21-26; ACLU

Br. 4, 10, 19-22; NACDL Br. 9-15) that misdemeanors that

do not amount to a breach of the peace are less serious

crimes for which enforcement can be relaxed at little

social cost. That assessment is unfounded. The forgery

of a poor, elderly person’s $400 Social Security check (18

U.S.C. 495, 510) may distress and financially embarrass

that victim. An officer’s arrest of an individual who

mutilates federal bank notes by removing the corner dollar

values (18 U.S.C. 333) may expose a counterfeiting opera-

tion that would cost the taxpayers a significant amount of

money. And domestic violence that does not rise to the

level of a common law breach of the peace (such as where

the victim of a battery cannot scream or otherwise disturb

the public, see Wilgus, supra, § 121, at 74) may neverthe-

less inflict considerable suffering on the victim.

„ It would be possible to hold that a warrantless arrest would be

permissible only if officers had knowledge of the facts that raised the

misdemeanor to a felony. See Welsh, 466 U.S. at 746 n.6. But that ap-

proach would sacrifice the strong societal interest in law enforcement

for misdemeanors that pose significant social harms in their own right

and that may frequently constitute felonies because of aggravating fac-

tors that are discovered only after the arrest.

19

II. THE FOURTH AMENDMENT PERMITS AR-

RESTS BASED ON PROBABLE CAUSE FOR

OFFENSES NOT PUNISHABLE BY INCAR-

CERATION

Petitioner’s alternative contention (Br. 11-13, 23 26) is

that, even when the police possess probable cause, they

may not effectuate an arrest if the authorized punishment

for the violation is a fine. The fact that an offense is not

punishable by incarceration, however, does not strip the

offense of its criminal character. Nor does it diminish the

governmental interest in ensuring compliance with the

law and the imposition of authorized penalties.”

A. Fines Are A Historic Means Of Enforcing The Crimi-

nal Law

Fines have long been a recognized means of enforcing

the criminal law. In 1413, persons found guilty of forging

property deeds were required to “make fine and ransom at

the king’s pleasure.” 3 Stephen, supra, at 181.“ Offenses

Amici National Association of Criminal Defense Lawyers and

the American Civil Liberties Union attempt to characterize the ordi-

nance violation at issue as a civil, rather than a criminal, offense.

NACDL Br. 6; ACLU Br. 1 n.2. We take no position on that issue. We

note, however, that petitioner has not contested the status of the

Village’s business ordinance as a misdemeanor either before this Court

or the court of appeals. Neither the district court nor the court of

appeals addressed the status of the offense. Respondent’s first question

presented, moreover, presupposes that the offense is a misdemeanor.

Pet. i (“Does the reasonableness clause of the Fourth Amendment incor-

porate the common law rule prohibiting warrantless arrests in mis-

demeanor cases that do not involve a breach of the peace?”) (emphasis

added).

16 Petitioner’s effort (Br. 11) to categorize ordinance offenses as

civil is particularly unhelpful in this analysis both because of how

closely civil and criminal cases were intertwined in the early common

law and because the common law allowed for arrests to commence civil

20

as varied as “cutting off the ears of the king’s subjects,”

burning carts loaded with coal, bribery in parliamentary

elections, and the unlawful collection of interest were,

for a period of time, punishable only by a fine. Id. at 189,

198, 253. Cases specifically recognized that “ordinances

punishing by fine” certain types of misconduct “were pen-

al laws.” Wilgus, supra, at 551 n.60 (“{AJlthough the

penalty may be a fine only * * *, there is a real crime.”)

(citing County of Wayne v. City of Detroit, 17 Mich. 390

(1868), and People v. Controller, 18 Mich. 445, 576 (1869)).

In the modern day, government continues to rely upon

fines as an important means of punishing crime. Congress

has created a number of criminal offenses for which a

fine is the only authorized sanction. See, eg., 14 U.S.C.

84 (interference with aids to navigation), 15 U.S.C. 1338

(cigarette labeling and advertising); 16 U.S.C. 422d and

423f (vandalism at national monuments and military

parks); 18 U.S.C. 243 (exclusion of jurors on account of

race or color), 244 (discrimination against person wearing

uniform of the armed forces); 18 U.S.C. 475 and 489

(imitating or reproducing U.S. obligations, securities, or

coins).

Petitioner and his amici assume (Pet. Br. 7-9; ACLU

Br. 19-22; NACDL Br. 9-11) that the decision to withhold

incarceration as punishment for a crime diminishes the

seriousness of the offense. While the type of sanction

authorized is one indication of seriousness, Welsh, 466

U.S. at 754 n.14; see Lewis v. United States, 116 S. Ct.

2163, 2166 (1996), the sanction chosen by government can-

actions. See, e.g., 3 Stephen, supra, at 180-181, 241-242 (IT me blend-

ing of civil and criminal consequences in a single proceeding * * *

was not an uncommon characteristic of our early criminal law.) Long

v. Ansell, 293 U.S. 76, 83 (1934) (“When the Constitution was adopt-

ed, arrests in civil suits were still common in America.”); Williamson,

207 U.S. at 435-440.

21

not be the sole, dispositive factor in evaluating the public’s

interest in enforcement. The selection of a punishment

for a crime reflects a complicated judgment about the na-

ture of the crime, its cost to society, the risk of recidi-

vism, and the best means of deterring violations. See

Welsh, 466 U.S. at 760 (White, J., dissenting). For exam-

ple, many prosecutor’s offices have adopted diversion pro-

grams for first-time domestic violence and drug offenders.

First-time offenders are given probation and required to

meet a variety of educational, employment, and counseling

requirements, in lieu of incarceration. See also Bearden

v. Georgia, 461 U.S. 660, 662 (1983) (discussing the Georgia

First Offender’s Act). It is true that incarceration re-

mains a potential penalty in the diversion program cases.

But that does not significantly distinguish the case at

hand, because individuals who refuse to pay the fine for

an ordinance violation (for reasons other than poverty)

often can be jailed. See, e.g., 65 Ill. Comp. Stat. Ann. 5/1-2-1

(West 1996); Bearden, 461 U.S. at 668; Tate v. Short, 401

U.S. 395, 400 (1971) (“[OJur holding today does not suggest

any constitutional infirmity in imprisonment of a defen-

dant with the means to pay a fine who refuses or neglects

to do so * * * for] when alternative means are unsuc-

cessful despite the defendant’s reasonable efforts to sat-

isfy the fines by those means.”).

A decision to limit the sanction for a violation to a fine

thus does not translate into a lack of interest in or com-

mitment to enforcing the law. Legislatures may “con-

sciously chose to limit the penalties imposed on first

offenders in order to increase the ease of conviction and

the overall deterrent effect of the enforcement effort.”

Welsh, 466 U.S. at 763 (White, J., dissenting). Indeed,

given the exploding prison population and the generally

high recidivism rates for released prisoners,” govern-

ments that experiment with alternatives to incarceration,

such as fines, should not find their hands tied in enforcing

and implementing those alternative sanctions. Nor should

the Fourth Amendment categorically declare that such

experimentation, as a matter of constitutional law, re-

flects such a diminished community interest in law

enforcement that probable cause arrests are impermissi-

ble. See Mayer v. City of Chicago, 404 U.S. 189, 197 (1971)

(“The practical effects of conviction of even petty offenses

of the kind involved here are not to be minimized. A fine

may bear as heavily on an indigent accused as forced con-

finement.”); Tate, 401 U.S. at 399 (acknowledging govern-

ment’s “concededly valid interest in enforcing payment of

fines”).

B. The Fourth Amendment Permits Seizures For Of-

fenses Punishable Only By Fine

This Court’s decisions have recognized that the Fourth

Amendment does not preclude seizures where the offense

is not punishable by incarceration. Stops for traffic

violations have long been permitted. See, eg., Penn-

sylvania v. Mimms, 434 U.S. 106, 107 (1977) (driving with

expired license plate)“ Recently, in Whren v. United

States, 116 S. Ct. 1769 (1996), this Court unanimously re-

jected an effort to require more than probable cause to

justify a seizure for a “civil traffic violation.” Id. at 1771

1773. The petitioners in Whren argued that, in analyzing

7 See U.S. Dep't of Justice, Bureau of Justice Statistics, Correc-

tional Populations in the United States 1995 6 (Table 1.5), 37 (Table

3.6), 130 (Table 6.5) (May 1997); U.S. Dep't of Justice, Office of Justice

Programs, Recidivism of Prisoners Released in 1983 1-3 (Apr. 1989).

See also Michigan v. DeFillippo, 443 U.S. 31, 36-40 (1979); Gus-

tafson v. Florida, 414 U.S. 260, 265 (1973); United States v. Robinson,

414 U.S. 218, 234-235 (1973).

the reasonableness of the seizure, courts should factor

in the purportedly diminished governmental interest in

enforcing “minor traffic infractions.” Jd. at 1776. While

acknowledging “in principle” that every Fourth Amend-

ment case entails a balancing of relevant factors, the

Court held that “the result of that balancing is not in

doubt where the search or seizure is based upon probable

cause.” Ibid. The officer’s “probable cause to believe

the law has been broken” necessarily “outbalances’ pri-

vate interest in avoiding police contact.” Id. at 1777. The

Court ruled that actual balancing is reserved for those

cases where probable cause is absent or the seizure is

“conducted in an extraordinary manner, unusually harm-

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

Id. at 1776.“

To the Whren petitioners’ objections that traffic vio-

lations are so multitudinous and inadvertently violated as

to render the stops “extraordinary,” the Court responded:

[We are aware of no principle that would allow us to

decide at what point a code of law becomes so expansive

and so commonly violated that infraction itself can no

longer be the ordinary measure of the lawfulness of

enforcement. And even if we could identify such

exorbitant codes, we do not know by what standard (or

what right) we would decide, as petitioners would have

us do, which particular provisions are sufficiently

important to merit enforcement.

116 S. Ct. at 1777. Here, as in Whren, “there is no realis-

tic alternative to the traditional common-law rule that

9 Such extraordinary searches or seizures include surgical intru-

sion (Winston v. Lee, 470 U.S. 753 (1985)), the use of deadly force (Gar-

ner, 471 U.S. 1), or warrantless or unannounced entries into the home

(Wilson, 514 U.S. 927; Welsh, 466 U.S. at 740). Neither those activities,

nor anything like them, occurred here.

24

probable cause justifies a search and seizure,” and so

“infraction itself“ should remain “the ordinary measure of

the lawfulness of enforcement.” Whren, 116 S. Ct. at 1777.

The present case involves a short custodial arrest, and

Whren involved a stop. But both qualify as seizures under

the Fourth Amendment. 116 S. Ct. at 1772; Watson, 423

U.S. at 414-424; see also Robbins v. California, 453 U.S.

420, 450 (1981) (Stevens, J., dissenting) (“I am not familiar

with any difference between custodial arrests and any

other kind of arrest.”), overruled, United States v. Ross,

456 U.S. 798 (1982). Furthermore, the extent of the sei-

zure was not a factor in the Whren Court’s analysis pre-

cisely because such balancing was deemed unnecessary for

routine seizures based on probable cause. See 116 S. Ct. at

1776-1777; see also Robbins, 453 U.S. at 450 (Stevens, J.,

dissenting) (“As a matter of constitutional law, however,

any person lawfully arrested for the pettiest misdemeanor

may be temporarily placed in custody.”) (footnote omitted).

In Welsh, the Court held that a State’s classification of an

offense as noncriminal and the modest sanction imposed

were relevant in assessing whether officers could make

a warrantless arrest in the home. 466 U.S. at 752-754.

Whren makes clear that, for routine seizures based on

probable cause outside the home, such considerations play

no part in the constitutional analysis. See also Schmerber

v. California, 384 U.S. 757, 766-772 (1966).

A custodial arrest may serve valid purposes even where

the ultimate penalty upon conviction is not incarceration.

The police may need to preserve evidence, confirm the

suspect’s identity, defuse and control a situation, or abate

a continuing violation. Other purposes may exist as well.”

For example, jurisdictions that mandate or encourage arrests

of shoplifters or runaways may consider their arrest policy part of

25

J.A. 74 (Arlington Heights effects arrests for violations

of its business license ordinance because “there [are]

accountability factors to make sure that people are going

to come into court”). Those purposes justify the arrest

even where the legislature does not deem it necessary to

punish violators with incarceration.”

C. A Distinction In Arrest Authority Based On Punish-

ment Poses Enforcement Difficulties

Like petitioner’s effort to confine misdemeanor arrests

to breaches of the peace, a constitutional rule that only

allows arrests for offenses punishable by imprisonment

raises problems of practical implementation by officers

on the street. A number of laws make first offenses

punishable by a fine or other non-incarceration penalty,

but permit incarceration for subsequent offenses. See,

e. g., Welsh, 466 U.S. at 746 (first offense is a civil infrac-

a larger law enforcement strategy designed to deter or cure petty

violations before a pattern of criminality develops.

21 See Michigan v. Summers, 452 U.S. 692, 702-703 (1981): Higbee,

911 F.2d at 380 (“Plaintiffs were not being punished. They were

merely being taken to jail to be booked and processed in the customary

manner.”); Reichman, 188 S.W. at 230 (because it serves a distinet lau

enforcement purpose, arrest for violation of liquor laws permissible

even though imprisonment may not be available as punishment);

Wilgus, supra, at 543 (an arrest “is the apprehension or taking into

custody of an alleged offender, in order that he may be brought into the

proper court to answer for a crime.”) (footnote and quotation marks

omitted); W. LaFave, Arrests: The Decision to Take a Suspect into

Custody 186-189 (1965); 4 W. Blackstone, Commentaries on the Laws

of England 286-292 (1769); cf. Ehrlich v. Giuliani, 910 F.2d 1220, 1223

(4th Cir. 1990) (“One of the most important duties of a prosecutor

pursuing a criminal proceeding is to ensure that defendants * * * are

present at trial.”); Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983)

(arrest brings the subject before the court and subjects him to its

immediate authority, without which “the initiation of a prosecution

would be futile”).

26

tion punishable by $200 fine; subsequent offenses punish-

able by imprisonment of up to one year); Carroll, 267 U.S.

at 154. A police officer witnessing an offense on the street,

however, has no way of knowing whether the perpetrator

is a first-time offender. Failure to arrest could leave a

repeat offender on the street; arrest could subject the

officer to personal liability for damages. “This is a very

unsatisfactory line of difference” for police officers to

administer. Carroll, 267 U.S. at 157.

D. Legislatures Have Prevented And Can Continue To

Prevent Arbitrary Law Enforcement

Adopting a constitutional rule for fine-only misdemean-

ors is not the only available safeguard against possible

abuses. As amicus ACLU demonstrates (Br. 12-15), a

number of States have taken steps to limit the authority of

police to arrest for misdemeanors or fine offenses. See

also Nonresident Violator Compact, Tex. Transp. Code

$§ 703.001 - 703.004 (1997); Berkemer, 468 U.S. at 437 n.26.

Similarly, the United States Park Police, in conjunction

with the district courts, have developed a “collateral list”

procedure under which officers may issue citations for

certain misdemeanor crimes and may either require a

subsequent appearance in court or allow the offender to

avoid a court appearance by paying a designated fine. The

Village of Arlington Heights itself has elected not to

arrest for certain ordinance violations. J.A. 23-24.

Such decisions are best made locally in light of the

particular policy concerns and needs for law enforcement

of individual communities. Once a community has adjudg-

ed certain behavior to be criminal, the Fourth Amendment

should not require police officers, who have probable cause

to believe that an offense has been committed, to adopt the

least restrictive or least intrusive means of enforcing the

law. See United States v- Sharpe, 470 U.S. 675, 687 (1985)

27

(Ihe fact that the protection of the public might, in the

abstract, have been accomplished by ‘less intrusive’ means

does not, by itself, render the search unreasonable.”).

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

WILLIAM C. BROWN

Attorney

MARCH 1998

APPENDIX

The following state statutes describe the authority of

law enforcement officers to effect warrantless arrests.

Ala. Code § 15-10-3(a)(1) (1996) (authorizing warrantless

arrest for any “public offense” committed in the presence

of the officer); Alaska Stat. § 12.25.030(a)(1) (Michie 1996)

(authorizing arrest without a warrant “for a crime com-

mitted * in the presence of the person making

the arrest”); Ariz. Rev. Stat. Ann. § 13-3883 (West 1997)

(authorizing arrest without a warrant when a misde-

meanor has been committed in the officer’s presence); Ark.

Code Ann. § 16-81-106(a)(2) (Michie 1997) (authorizing ar-

rest by an officer without a warrant “where a public

offense is committed in his presence”); Cal. Penal Code

§ 836(a)(1) (West Supp. 1998) (authorizing warrantless ar-

rest where “the person arrested has committed a public

offense in the officer’s presence”); Colo. Rev. Stat. Ann.

§ 16-3-102(b) (West 1998) (authorizing officer to make

warrantless arrest when “[aJny crime has been or is being

committed” in the officer’s presence); Conn. Gen. Stat.

Ann. § 54-1f(a) (West 1994) (authorizing warrantless ar-

rests for “any offense”); Del. Code Ann. tit. 11, § 1904(a)(1)

(1997) (authorizing warrantless arrest for any misde-

meanor committed in the officer’s presence); D.C. Code

Ann. § 23-581(a)(1)(B) (1996) (authorizing warrantless ar-

rest where officer has probable cause to believe a per-

son has committed an offense in the officer’s pre-

sence); Fla. Stat. Ann. § 321.05(1) (West 1995 & Supp. 1997)

(authorizing arrests by officers without a warrant “for the

violation of any state law committed in their presence”);

Ga. Code § 17-4-20 (1997) (authorizing warrantless arrest

by officer “for acrime * if the offense is committed in

such officer’s presence”); Haw. Rev. Stat. Ann. § 803-5(a)

(la)

2a

(Michie 1997) (authorizing warrantless arrest “when the

officer has probable cause to believe that [a] person has

committed any offense”); Idaho Code § 19-603(1) (1997)

(authorizing warrantless arrest by officer “for a public

offense committed or attempted in his presence”); 725 III.

Comp. Stat. Ann § 5/107-2(1)(c) (West 1992) (authorizing

arrest by officer without a warrant when “[h]e has reason-

able grounds to believe that the person is committing or

has committed an offense”); Ind. Code Ann. § 35-33-1-1(a)(4)

(Burns 1986) (authorizing warrantless arrest when the

officer has probable cause to believe a person “is committ-

ing or attempting to commit a misdemeanor in the officer’s

presence”); Iowa Code Ann. § 804.7 (1994) (authorizing

warrantless arrest “for a public offense committed

or attempted in the peace officer’s presence”); Kan. Stat.

Ann. § 22-2401 (1996) (authorizing warrantless ar-

rest for “[aJny crime, except a traffic infraction or a ciga-

rette or tobacco, infraction” committed in the officer’s

view); Ky. Rev. Stat. Ann. § 431.005(1)(d) (Baldwin 1997)

(authorizing warrantless arrest for any offense punishable

by confinement committed in the officer’s presence); La.

Code Crim. Proc. Ann. art. 213(3) (West 1991) (authorizing

warrantless arrest where the officer “has reasonable

cause to believe that the person arrested has committed an

offense”); Me. Rev. Stat. Ann. tit. 15, § 704 (West 1980) (au-

thorizing warrantless arrest of “persons found violating

any law of the State or any legal ordinance or bylaw of a

town”) and Me. Rev. Stat. Ann. tit. 17-A, § 15 (West 1983

& Supp. 1997) (authorizing warrantless arrests for misde-

meanors in the officer’s presence); Md. Ann. Code art. 27,

§ 594B(a) (1957) (authorizing officer’s warrantless arrest

of any person who commits, or attempts to commit, “any

felony or misdemeanor” in the presence of the officer);

Mass. Gen. Laws Ann. ch. 276, § 28 (West 1990) (warrant-

less arrest authorized for designated misdemeanor

3a

offenses) and Mass. Ann. Laws ch. 272, § 60 (Law. Co-op.

1994 & Supp. 1997) (authorizing warrantless arrest for

littering offenses where identity of arrestee is not known

to officer); Mich. Comp. Laws Ann. § 28.6(5) (West 1994)

(authorizing warrantless arrests “for all violations of the

law” committed in the officer’s presence); Mich. Stat. Ann.

§ 28.874(a) (Law. Co-op 1985 & Supp. 1997) (authorizing

warrantless arrests where “[a] felony, misdemeanor, or

ordinance violation is committed in the peace officer’s

presence”); Minn. Stat. Ann. § 629.34 (West 1983)

(authorizing warrantless arrest “when a public offense

has been committed or attempted in the officer’s or

constable’s presence”); Miss. Code Ann. § 45-3-21(1)(a)(vi)

(1991) (authorizing warrantless arrest by Highway Safety

Patrol of “any person or persons committing or

attempting to commit any misdemeanor, felony or breach

of the peace within their presence or view“); Mo. Ann.

Stat. § 479.110 (Vernon 1987) (authorizing warrantless

arrest of “any person who commits an offense in [the

officer's] presence”); Mont. Code Ann. § 46-6-311(1) (1997)

(authorizing warrantless arrest if “the officer has

probable cause to believe that the person is committing an

offense or that the person has committed an offense and

existing circumstances require immediate arrest”); Neb.

Rev. Stat. §§ 60-683, 81-2005 (1996) (authorizing warrant-

less arrest for misdemeanors committed in the officer’s

presence); Nev. Rev. Stat. § 171.172 (1996) (authorizing

warrantless arrest by officer when a person commits “any

criminal offense” in the presence of the officer); N.H. Rev.

Stat. Ann. § 614:7 (1996) (authorizing warrantless arrest of

any person who has committed “any criminal offense” in

the presence of the officer); N.J. Stat. Ann. § 53:2-1 (West

1986 & Supp. 1997) (authorizing officers to arrest without

a warrant “for violations of the law committed in their

presence”); N. M. Stat. Ann. § 66-2-12(A)(2) (Michie 1978 &

4a

1994 Repl.) (authorizing warrantless arrests for motor

vehicle code violations committed in the presence of

the officer); N.Y. Laws § 140.10 (Consol. 1992 & Supp. 1997)

(authorizing warrantless arrest by a police officer for

“{ajny offense” committed in the officer’s presence); N.C.

Gen. Stat. § 15A-401(b) (1997) (authorizing a warrantless

arrest where an officer has probable cause to believe the

person has committed “a criminal offense” in the officer's

presence”); N.D. Cent. Code § 29-06-15 (1991) (authorizing

warrantless arrest “[flor a public offense, committed or

attempted in the officer’s presence”); Ohio Rev. Code Ann.

§ 2935.03 (Baldwin 1997) (authorizing warrantless arrest

of a person “found violating * * * a law of this state, an

ordinance of a municipal corporation, or a resolution

of a township”); Okla. Stat. Ann. tit. 22, § 196 (West 1992)

(authorizing warrantless arrests “[flor a public offense,

committed or attempted in [the officer’s] presence”); Or.

Rev. Stat. § 133.310(1)(i) (1995) (authorizing warrantless

arrest upon probable cause for any offense occurring in

the officer’s presence except traffic infractions and other

offenses punishable only by a fine); 71 Pa. Cons. Stat. Ann.

§ 252(a) (West 1990) (authorizing warrantless arrests by

state police “for all violations of the law, including laws

regulating the use of the highways, which they may

witness”); R.I. Gen. Laws § 12-7-3 (1994) (authorizing

warrantless misdemeanor and petty misdemeanor arrests

where “the officer has reasonable grounds to believe that

the] person cannot be arrested later or may cause injury

to himself or others or loss or damage to property unless

immediately arrested”); S.C. Code Ann. § 17-13-30 (Law.

Co-op. 1976 & Supp. 1997) (authorizing warrantless ar-

rests of persons who, in the presence of the officer,

“violate any of the criminal laws of this State”); S.D.

Codified Laws Ann. § 23A-3-2 (Michie 1988 & Supp. 1997)

(authorizing warrantless arrest by officer “[flor a public

5a

offense, other than a petty offense, committed or attempted

in his presence”); Tenn. Code Ann. § 40-7-103(1) (1997)

(authorizing law enforcement officer to arrest without a

warrant “(flor a public offense committed or a breach of

the peace threatened in his presence”); Tex. Crim. Code

Ann. art. 14.01 (West 1977) (authorizing officer’s arrest of

offender without a warrant “for any offense committed in

his presence or within his view,”); Utah Code Ann. § 10-3-

915 (1996) (authorizing warrantless arrests for “any

offense directly prohibited by the laws of this state or

by ordinance”); Vt. R. Crim. P. 3(a) (1983 & Supp. 1997)

(authorizing warrantless arrests where “a crime” is com-

mitted in the presence of the officer); Va. Code Ann. § 19.2-

81 (Michie 1995) (authorizing warrantless arrest of “any

person who commits any crime in the presence of such

officer”); Wash. Rev. Code Ann. § 10.31.100 (West 1990 &

Supp. 1997) (authorizing warrantless arrests for misde-

meanors committed in the presence of the officer); W. Va.

Code § 62-10-9 (1990 & Supp. 1997) (authorizing warrant-

less arrests “for all violations of any of the criminal laws

of the United States, or of this state, when committed in

{an officer's] presence”); Wis. Stat. Ann. § 968.07(1)(D)

(West 1985) (authorizing warrantless arrest when At here

are reasonable grounds to believe that the person is

committing or has committed a crime”); Wyo. Stat. Ann.

§ 7-2-102(b)(1) (Michie 1995 & Supp. 1997) (authorizing

warrantless arrest when “any criminal offense” is com-

mitted “in the officer’s presence”).