# Amicus Curiae Brief — Ricci v. Village of Arlington Heights

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0125%3A08

## Record

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

## Text

—

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”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0125%3A08. Public record. Not legal advice.