Amicus Curiae Brief — Ricci v. Village of Arlington Heights

Bupreme Court, U.S.

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No. 97-501 OF IME CLERS |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

RANDALL RICCI,

Petitioner,

vs.

VILLAGE OF ARLINGTON HEIGHTS,

Respondent.

On Writ of Certiorari To The United States

Court of Appeals For The Seventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Of Counsel:

BARBARA BERGMAN WILLIAM J. MERTENS*

Co-Chair, NACDL Amicus JAY T. BLOUNT

Committee Swidler & Berlin, Chtd.

University of New Mexico 3000 K Street N.W.

School ef Law Suite 300

1117 Stanford N.E. Washington, DC 20007

Albuquerque, NM 87131 (202) 424-7500

(505) 277-2146

*Counsel of Record

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53 Page

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

THE FOURTH AMENDMENT’S REASONABLENESS

CLAUSE SHOULD BE HELD TO FORBID FULL

CUSTODY ARRESTS FOR VIOLATIONS OF FINE-

ONLY ORDINANCES NOT INVOLVING A BREACH

OF THE PEACE OR A THREAT TO PUBLIC HEALTH

In the Framers’ Time, the Common Law Prohibited

Arrests for Minor, Summary Offenses

Full-Custody Arrests for Violations of the Licensing

Ordinance Are Unreasonable Under the Court’s

No Important Public Interest Justifies Full

Custody Arrests for Fine-Only Municipal

Ordinances Not Involving a Breach of the

Peace or Threat to Public Health or

This Court’s Decision in Whren v. United States

Does Not Preclude Use of the Balancing Test . 11

3. The Proposed Rule Is Consistent with Normal Law

Enforcement Practices ........-.-6+see005 13

Il. AT THE LEAST, THE COURT SHOULD REQUIRE A

WARRANT FOR CUSTODIAL ARRESTS IN THESE

CIRCUMSTANCES .......ccccccccccccceccces 15

TE ca canecensesccessccsccscocccccsccoes 17

TABLE OF AUTHORITIES

CASES

Bacon v. United States,

449 F.2d 933 (9th Cir. 1971) ..............-2-05-. 11

Barnett v. United States,

§25 A.2d 197 (D.C. 1987) ...... 2.2. eee eee eee 11

Bearden v. Georgia,

ED c cceccescooscesscoeoeceounns 10

Beck v. Ohio,

ED ocnceconctenvareeecsasesntées 15

Berkemer v. McCarty,

468 U.S. 420 (1984)... 2.2 cee wees 14

California v. Hodari D.,

499 U.S. 621 (1991)... 2. cee eee 3

Camara v. Municipal Court,

ST EDD « coccccccceccocooescesoess 3,7

Carroll v. United States,

, § Ferry 4

City of Chicago v. Joyce,

EE, DEED ooccccccococceseoeseses 6

City of Chicago v. Wisniewski,

Se PED CUED cc ccccccccccccccceccces 6

iv

City of Peoria v. Toft,

574 N.E.2d 1334 (Ill. App. Ct. 1991) .............. 6

County of Riverside v. McLaughlin,

Fe SOE bo ccccdcccccsédcnccscccastece 8

Davis v. Mississippi,

Bs CP ED vv ceccdcccdebetescedécwewen 15

Delaware v. Prouse,

SNE cv cccccccvcccdscdseucecuunel 7

Gustafson v. Florida,

SI TE o vc cvccnscdcccoccccbuedenes 10

In re Winship,

eee eer 6

Jackson v. Virginia,

Se SE ccccccocecctctesesoecseusess 6

Johnson v. United States,

Ps CEE nccevccdesessessesueusenete 16

Mapp v. Ohio,

Be es ED c cc cdcccccoddecstecenséuseses 3

Maryland v. Wilson,

OS ee ee 7

Minnesota v. Olson,

re eee 16

Vv

Pennsylvania v. Mimms,

EEE « ncccccceéesscedccdonscecece 7

People v. Anderson,

489 N.Y.S.2d 486 (N.Y. App. Div. 1985) .......... 14

People v. Datacom Sys. Corp.,

ee Ee Oe BED co ccccddcdcsccbsccccccce 6

People v. Edge,

POE, GED sé ccccceccccccceccicecs 13

Ricci v. Arlington Heights,

SR CPG BOOP cccccccccccsccecoses 11

Skinner v. Railway Labor Executives’ Ass'n,

SE vo ccccccdéidcccccccccsesccss 7

State v. Harmon,

910 P.2d 1196 (Utah 1995) ........ 2... e eee eeee 10

State v. Klinker,

537 P.2d 268 (Wash. 1975) ....... 2.020 cece eeees 11

State v. Nelson, 914 P.2d 97 (Wash. Ct. App.),

review denied, 922 P.2d 99 (Wash. 1996) .......... 16

Steagald v. United States,

GN SED occ cc ccdddcodvcccecesoseses 16

Tate v. Short,

401 U.S. 395 (1971) .. 2.2 cece ceccccccccceccese 10

Terry v. Ohio,

Se eo duvdduceecededdacdeccdunneet 7,15

Town of Normal v. Bowsky,

492 N.E.2d 204 (Ill. App. Ct. 1986) ............... 6

United States v. Hensley,

dn oidbcsadadaenvednaceene 14

United States v. Martinez-Fuerte,

I 4 on cde gunk beeeeusenetenus 7

United States v. Robinson,

SII, ccuucuceWucneesoucseucntens )

United States v. Villamonte-Marquez,

EE cn da cupceedesceseuceeseeéuss 7

United States v. Ward,

ED cede ctedcoceccesuss 11

United States v. Watson,

i ie da eee ake 4, 16

Village of Mundelein v. Hartnett,

454 N.E.2d 29 (Ill. App. Ct. 1983) ................ 6

Whren v. United States,

ee SE excccetddskeiudccedwe 11-13

Williams v. Illinois,

Pn. cacccucssédsbinbbabadewdeees 9

vii

Wilson v. Arkansas,

eR eis ccennGeheeskeseteees ce 3

Wong Sun v. United States,

i, cckuce sis cedécueeteetesese 15

STATUTES -

65 Ill. Comp. Stat. 5/ 1-2-1 (West, WESTLAW

through P.A. 90-925 approved 8/14/97) ............ 6

65 Ill. Comp. Stat. 5/1-2-1.1 (West, WESTLAW

through P.A. 90-925 approved 8/14/97) ............ 6

Ind. Code Ann. § 35-33-1-1

(West, WESTLAW through End 1997

EET TTTTTTTTTLT TTT TTT TT 5

Mass. Gen Laws Ann. ch. 276, § 28

(West, WESTLAW through Ist Sess. 1997) ......... 5

N.Y. Penal Law § 165.15 (McKinney 1988 & Supp. 1998) .. 14

N.Y. Penal Law § 70.15 (McKinney 1998) ............... 14

N.Y. Penal Law § 80.05 (McKinney 1998) ............... 14

OTHER AUTHORITIES

2 Wayne R. LaFave, Search and Seizure § 5.1(h) (1987) .... 11

3 Wayne R. LaFave, Search and Seizure § 5.2(e) (1996) ..... 9

viii

Barbara C. Salken, The General Warrant of the

Twentieth Century? A Fourth Amendment

Solution to Unchecked Discretion to

Arrest for Traffic Offenses,

Se Se EE ac ccccécccveccccccess 8

Edward C. Fisher, Laws of Arrest

(Robert L. Donigan, ed. 1967) .................. 4,5

Floyd Feeney, The Police and Pretrial Release (1982) .... . 4,5

Horace L. Wilgus, Arrest Without a Warrant,

22 Mich. L. Rev. (part 1) 541 & (part 2) 673 (1924)... 5

John Leo, You might Even Want to Live There,

Se I ED oc cevcccvéuvectcodsuceee 14

Julius Goebel Jr. & T. Raymond Naughton, Law

Enforcement in Colonial New York: A Study

in Criminal Procedure (1664-1776) (1944) ......... 4

Marion Wanless, Note, Mandatory Arrest: A Step

Toward Eradicating Domestic Violence,

But Is It Enough?, 1996 VU. Ill. L. Rev. 533 ......... 15

W. Paley, The Law and Practice of Summary

Convictions on Penal Statutes by Justices

of the Peace (London, 1814) ................... 4,5

Wayne R. LaFave & Austin W. Scott, Jr.,

Criminal Law § 1.7(c) (2d ed. 1986) ............... 5

ix

Wayne R. LaFave, Controlling Discretion by

Administrative Regulations: The Use,

Misuse, and Nonuse of Police Rules and

Policies in Fourth Amendment Adjudication,

89 Mich. L. Rev. 442 (1990) ...............0045. 10

Wayne R. LaFave, “Seizures” Typology: Classifying

Detentions of the Person to Resolve Warrant,

Grounds, and Search Issues,

17 U. Mich. J.L. Reform 409 (1984) .............. 11

William Bratton, Turnaround: How America's Top

Cop Reversed the Crime Epidemic (1998) .......... 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

RANDALL RICCI,

Petitioner,

VS.

VILLAGE OF ARLINGTON HEIGHTS,

Respondent.

STATEMENT OF INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense Lawyers (the

“NACDL”) is a professional bar association founded in 1958 to

advance the mission of the nation’s cnminal defense lawyers to

ensure justice and due process for persons accused of a crime or

other misconduct. Today, the NACDL has almost 10,000 direct

members and 80 affiliates representing another 28,000 members,

which include private criminal defense lawyers, public defenders,

active U.S. military defense counsel, law professors and judges.

The NACDL has members in all fifty states, and the American Bar

Association recognizes the NACDL as an affiliate organization and

awards it full representation in its House of Delegates.

' Both parties have consented to the filing of this brief. Counsel for the

NACDL authored this amicus brief in whole, and no parties other than those

listed in Supreme Court Rule 37.6 made a monetary contribution to the

preparation or submission of the brief.

2

Among the NACDL’s objectives is to deter overreaching

conduct by law enforcement officers by vigorously defending the

protections guaranteed by the Constitution. The NACDL believes

that this case may have a significant impact on determining ne

scope of the Fourth Amendment’s prohibition against unreasonable

seizures. Therefore, the NACDL presents this brief in support of

the Petitioner to urge this Court not to permit routine custodial

arrests for ordinance violations punishable only by fine.

SUMMARY OF ARGUMENT

The Fourth Amendment’s prohibition against unreasonable

searches and seizures should be held to prohibit custodial arrests for

fine-only offenses not involving a breach of the peace or presenting

a danger to the public health or safety. Petitioner Ricci’s arrest

would violate this rule. The business licensing ordinance that Ricci

was arrested for violating is barely a criminal provision at all. For

virtually all purposes except the law of arrest, Illinois law treats it

as a civil provision. According to available evidence, the common

law as of 1789, when the Bill of Rights was adopted, did not allow

arrests for alleged violations of such ordinances.

Furthermore, a balancing of the interests at stake does not

justify a custodial arrest in this circumstance. This Court always

has recognized that an arrest is a very serious deprivation of liberty.

In comparison, the fact that Respondent Village of Arlington

Heights has limited the penalty to fines expresses the comparatively

minimal importance it places on preventing or punishing violations.

Moreover, the two governmental interests that Arlington Heights

has asserted — to coerce compliance with the ordinance, and to

bring an alleged offender before a magistrate — do not require an

arrest. A citation, coupled with the threat of $500-a-day fines,

would be at least as effective in persuading an out-of-compliance

business to obtain a license. Furthermore, in almost every case, a

3

summons would be equally effective in bringing the operator of

such a business before a court.

At the least, the Court should interpose a neutral and

detached magistrate between the police and alleged offenders, by

requiring a warrant before an officer may arrest under such an

ordinance.

ARGUMENT

I. THE FOURTH AMENDMENT’S' REASON-

ABLENESS CLAUSE SHOULD BE HELD TO

FORBID FULL CUSTODY ARRESTS FOR

VIOLATIONS OF FINE-ONLY ORDINANCES NOT

INVOLVING A BREACH OF THE PEACE OR A

THREAT TO PUBLIC HEALTH OR SAFETY.

A. In the Framers’ Time, the Common Law

Prohibited Arrests for Minor, Summary

Offenses.

“The Fourth Amendment to the Constitution protects ‘[t]he

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.””* Wilson v.

Arkansas, 514 U.S. 927, 931 (1995). In determining the content of

this open-ended provision, the Court typically has begun by looking

to “the traditional protections against unreasonable searches and

seizures afforded by the common law at the time of the framing.”

Id. (citing California v. Hodari D., 499 U.S. 621, 624 (1991);

? The Fourth Amendment applies to the states through the Fourteenth

Amendment. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 528 (1967);

Mapp v. Ohio, 367 U.S. 643, 655-56 (1961).

4

United States v. Watson, 423 U.S. 411, 418-20 (1976); Carroll v.

United States, 267 U.S. 132, 149 (1925)).

The available evidence shows that at the time of the

framing, the common law did not allow arrests for offenses similar

to the Arlington Heights licensing ordinance. Operating a business

without a license is similar to a summary offense, which at common

law was tried without a jury before a magistrate. Summary offenses

included violations of laws regulating the highways, the Sabbath,

liquor, and trade. Floyd Feeney, The Police and Pretrial Release

12 (1982); Julius Goebel Jr. & T. Raymond Naughton, Law

Enforcement in Colonial New York: A Study in Criminal

Procedure (1664-1776) 418 n.186 (1944).

For offenses merely arising by penal

statutes, and not connected with any breach of the

peace, a justice has no authority, as necessarily

incident to the cognizance of the offence; to

apprehend the accused in the first instance, or even

after a summons and a default, but can only

summon him to attend, and in default of his

appearance proceed ex parte.

W. Paley, The Law and Practice of Summary Convictions on Penal

Statutes by Justices of the Peace 19 (London, 1814).’ Parliament

empowered magistrates to issue warrants only “in a variety of cases

where there may be reason to apprehend, from the nature of the

offence, or the probable description of the offender, that the object

of the prosecution would be defeated by giving him notice.” Jd. at

19-20.

> Further, misdemeanor arrests were permitted only when there was a

breach of the peace. Edward C. Fisher, Laws of Arrest 181 (Robert L. Donigan,

ed. 1967).

5

In cases where there was no need to issue a warrant, the

common law treated summary offenses much like civil violations,

with the magistrate merely requesting that the allegedly offending

party appear. /d. at 20. If the party did not appear, the magistrate

typically could not force an appearance but would simply enter a

default judgment. Jd.‘

There is little doubt that fine-only municipal ordinances

such as the Arlington Heights ordinance at issue here come within

these common law rules. Ordinance violations such as this are

typically treated only as civil or quasi-criminal offenses, especially

when imprisonment is not authorized. Wayne R. LaFave & Austin

W. Scott, Jr., Criminal Law § 1.7(c) (2d ed. 1986). Consistent with

this principle, Illinois law does not classify the Arlington Heights

licensing ordinance as a misdemeanor, or, in most important

respects, as a criminal provision at all.

“ Police departments organized along modern lines first appeared in

about the mid-1800s, and certain rules regarding arrests for minor offenses then

began to change. Feeney, supra, at 13. Legislatures conferred on the new police

forces broader powers, including the power to make warrantless arrests for

misdemeanors and some ordinance violations. /d. See also Horace L. Wilgus,

Arrest Without a Warrant, 22 Mich. L. Rev. (part 1) 541, 577 & (part 2) 673,

705-09 (1924). However, even these broader powers were limited. Many states

permitted non-felony offenders to be arrested only if the offense was committed

in the officer’s presence. Fisher, supra, at 180-81. Even today, some states

confine this power to misdemeanors committed in an officer’s presence and

involving a breach of the peace or to more serious misdemeanors. See, e.g., Ind.

Code Ann. § 35-33-1-1 (West, WESTLAW through End 1997 Ist Sp. Sess.);

Mass. Gen Laws Ann. ch. 276, § 28 (West, WESTLAW through Ist Sess. 1997).

Under such rules, the arrest of Petitioner Ricci would have been unauthorized.

it was for a non-serious offense that did not involve a breach of the peace and

that also possibly was not committed in an officer’s presence, as the officer

evidently did not witness Ricci actually conducting any business.

- 6

Illinois municipalities may enact ordinances punishable by

fine or non-incarceration penalty only, as well as certain minor

misdemeanors, 65 Ill. Comp. Stats. 5/ 1-2-1 & 5/1-2-1.1 (West,

WESTLAW through P.A. 90-925 approved 8/14/97). However,

fine-only ordinance offenses do not qualify as misdemeanors. City

of Peoria v. Toft, 574 N.E.2d 1334, 1336 (Ill. App. Ct. 1991);

Village of Mundelein v. Hartnett, 454 N.E.2d 29, 32 (Ill. App. Ct.

1983). Indeed, Illinois law allows a violation of such an ordinance

to be proven only by a clear preponderance of the evidence, City of

Chicago v. Joyce, 232 N.E.2d 289, 291 (Ill. 1967), rather than by

the constitutionally required criminal standard of beyond a

reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 317-18

(1979); In re Winship, 397 U.S. 358, 364 (1970). Prosecuting

municipalities are also allowed to appeal judgments of acquittal,

despite the United States and Illinois Constitutions’ proscriptions

against double jeopardy. Town of Normal v. Bowsky, 492 N.E.2d

204, 205 (Ill. App. Ct. 1986). And the 160-day period within which

Illinois requires criminals to be tried does not apply. City of

Chicago v. Wisniewski, 295 N.E.2d 453, 454 (Ill. 1973). In fact, if

enforcement of the ordinance violation is instituted by a summons

rather than an arrest, the Illinois catch-all five-year statute of

limitations for civil actions applies. Toft, 574 N.E.2d at 1336

(allowing action to recover parking fines over three years after

ticketing). As the Illinois Supreme Court has explained, “the

recovery of a fine for an ordinance violation has been historically

treated in Illinois as a civil action to recover a debt.” People v.

Datacom Sys. Corp., 585 N.E.2d 51, 60 (Ill. 1991).

Thus, the common law at the time of framing would not

have allowed Petitioner Ricci’s arrest for violation of the Arlington

Heights licensing ordinance.

7

B. Full-Custody Arrests for Violations of the

Licensing Ordinance Are Unreasonable Under

the Court’s Balancing Test.

1. No Important Public Interest Justifies

Full Custody Arrests for Fine-Only

Municipal Ordinances Not Involving a

Breach of the Peace or Threat to Public

Health or Safety.

In addition to looking to the common law, this Court’s

decisions have employed a balancing test to measure police

practices against the requirements of the Fourth Amendment

reasonableness clause. See, e.g., Maryland v. Wilson, 117 S. Ct.

882, 885-86 (1997); United States v. Villamonte-Marquez, 462 U.S.

579, 588 (1983); Delaware v. Prouse, 440 U.S. 648, 654 (1979);

Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977); United

States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976); United States

v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392

U.S. 1, 20-21 (1968); Camara, 387 U.S. at 534-35.

This balancing test asks, ultimately, whether a sufficiently

weighty public interest outweighs the private interest at stake in

privacy, freedom or bodily integrity. The more intrusive the police

practice, the more compelling the necessary justification must be.

Consequently, analysis typically begins with examination of the

private interest. E.g., Skinner v. Railway Labor Executives’ Ass'n,

489 U.S. 602, 616-18 (1989).

A custodial arrest is an extremely intrusive and humiliating

procedure. As one commentator has summarized:

One arrested is no longer free to walk away, but also

is suddenly in the control of another human being.

If he resists, force will be used. A person who is

arrested can no longer choose when he eats, with

whom he associates, where or whether he will sit or

stand, or even if he may go to the bathroom.

. A person arrested is booked; a record is

made of the arrest, usually incleding fingerprints

and sometimes photographs. The record may be

permanent, whether or not the individual is

ultimately convicted of the offense for which he or

she is charged. The arrestee will certainly be

searched. Although the search may be limited to a

frisk, it is nonetheless more than a mere “petty

indignity” as “the officer must feel with sensitive

fingers every portion of the prisoner’s body. A

thorough search must be made of the prisoner’s

and entire surface of the legs down to the feet.”

Barbara C. Salken, The General Warrant of the Twentieth Century?

A Fourth Amendment Solution to Unchecked Discretion to Arrest

for Traffic Offenses, 62 Temp. L. Rev. 221, 264 (1989) (citations

omitted) (quoting Terry, 392 U.S. at 17 & 17 2.13). Although

Ricci’s custodial arrest and subsequent detention lasted only about

an hour — because of his wife’s ability to secure his release by

obtaining a business license — not every arrestee may be so

fortunate. A person arrested without a warrant who is unable to

post bond may remain in police custody as long as 48 hours before

being presented to a magistrate. See County of Riverside v.

McLaughlin, 500 U.S. 44, 56-57 (1991).°

> Also, with carte blanche powers to arrest, law enforcement officers

would have broad power to use arrests for minor ordinance violations as a pretext

(continued...)

9

No interest of Arlington Heights justifies this intrusion for

suspected violations of the licensing ordinance. In the Court of

Appeals, Arlington Heights asserted two interests, neither of them

sufficient. First, it said that arrests may coerce compliance with the

licensing requirement, as, indeed, happened here. Second,

Arlington Heights asserted that arresting an alleged violator allows

the police to bring the person before a magistrate to set bond. In

this way, arrests help assure the alleged violator’s appearance in

court.

To begin with, the weight of these interests is not very great

when the offense involves a quasi-cnminal provision, punishable

only by fine. As this Court stated in Welsh v. Wisconsin, 466 U.S.

740, 754 n.14 (1984):

Given that the classification of state crimes differs

widely among the States, the penalty that may attach

to any particular offense seems to provide the

clearest and most consistent indication of the State’s

interest in arresting individuals suspected of

committing that offense.

be disproportionate as a penalty for violations of the licensing

i it is i - that i ion is justified

prior to adjudication. See Williams v. Illinois, 399 U.S. 235, 243-45

(1970) (failure to pay fine may not increase period of incarceration

*(...continued)

to conduct a full custodial search. See 3 Wayne KR. LaFave, Search and Seizure

§ 5.2(e), at 85-86 (1996); United States v. Robinson, 414 U.S. 218, 248 (1973)

(Marshall, J., dissenting) (“There is always the possibility that a police officer,

lacking probable cause to obtain a search warrant, will use a traffic arrest as a

pretext to conduct a search.”).

10

beyond crime’s maximum sentence). Cf Bearden v. Georgia, 461

U.S. 660, 667-69 (1983); Tate v. Short, 401 U.S. 395, 398-99

(1971).

Moreover, arrests are patently unnecessary to protect the

interests that Arlington Heights asserts. A citation, coupled with

the credible threat of $500-a-day fines, would be at least as

coercive. And it is fanciful to suggest that arrests are even

presumptively necessary to bring operators of on-going businesses

before a court for violations of the licensing ordinance. Arrests are

no more necessary in such cas*s than in run-of-the-mill civil cases.

Surely a citation or summons would be equally effective to secure

the operator’s presence.*®

Although the Court has not yet decided this question, it long

violations such as this. As Justice Stewart stated a quarter century

ago: “It seems to me that a persuasive claim might have been made

. . . that the custodial arrest of the petitioner for a minor traffic

offense violated his rights under the Fourth and Fourteenth

Amendments.” Gustafson v. Florida, 414 U.S. 260, 266-67 (1973)

(Stewart, J., concurring). Professor LaFave likewise has written

that “the proposition that the fourth amendment should be construed

to bar custodial arrests for minor violations is an appealing one.”

Wayne R. LaFave, Controlling Discretion by Administrative

Regulations: The Use, Misuse, and Nonuse of Police Rules and

Policies in Fourth Amendment Adjudication, 89 Mich. L. Rev. 442,

487-88 (1990). See also State v. Harmon, 910 P.2d 1196, 1204

(Utah 1995) (“‘It should be the policy of every law enforcement

* Moreover, by routinely dismissing prosecutions once the business

obtains a license, Arlington Heights has made clear that it is satisfied by the

Arlington Heights’s interests.

11

agency to issue citations in lieu of arrest or continued custody to the

maximum extent consistent with the effective enforcement of the

law.”””) (quoting 2 Wayne R. LaFave, Search and Seizure § 5.1(h)

at 432 (1987)); Barnett v. United States, 525 A.2d 197, 199 (D.C.

1987) (arresting for fine-only pedestrian walking offence violated

arrestee’s Fourth Amendment rights).

Prohibiting custodial arrests for these civil or quasi-criminal

wrongs would also be consistent with a number of lower court

decisions that the Fourth Amendment prohibits custodial arrests of

material witnesses or civil defendants when the purpose of the

arrest can be accomplished in a less intrusive way. See, e.g., United

States v. Ward, 488 F.2d 162, 170 (9th Cir. 1973) (stopping car to

interview witness was unreasonable; agents could have “sought an

interview with the appellant at either his home or place of

business”); Bacon v. United States, 449 F.2d 933, 943 (9th Cir.

1971) (material witness may be arrested only if his presence cannot

be secured by subpoena); State v. Klinker, 537 P.2d 268, 278

(Wash. 1975) (en banc) (arrest in civil filiation proceeding

unreasonable, where summons and complaint procedure would be

effective). Professor LaFave concluded from such decisions that “it

is not fanciful to suggest that persons suspected of relatively minor

criminal violations should also be so protected.” Wayne R. LaFave,

“Seizures” Typology: Classifying Detentions of the Person to

Resolve Warrant, Grounds, and Search Issues, 17 U. Mich. J.L.

Reform 409, 440 (1984).

2. This Court’s Decision in Whren v. United

States Does Not Preclude Use of the

Balancing Test.

The Court of Appeals believed that this Court’s decision in

Whren v. United States, 116 S. Ct. 1769 (1996), precluded “a

balancing analysis.” Ricci v. Arlington Heights, 116 F.3d 288, 291

12

(7th Cir. 1997). According to that court, probable cause that the

ordinance had been violated made balancing unnecessary, but the

court was mistaken.

Whren did not present the issue that is now before the Court.

In that case, the Court held that probable cause of traffic violations,

without more, justified a stop of the vehicle under the Fourth

Amendment reasonableness clause. There was no issue in Whren

of whether the traffic violations would have allowed an arrest, and

nothing in the Court’s opinion suggested they would. A plain-

clothes officer approaching the car immediately observed what

appeared to be crack cocaine, and arrested the driver and passenger

for drug offenses, not the traffic violations. 116 S. Ct. at 1772.

Because of the ubiquity of minor traffic regulations and

asserted impossibility of driving without violating one, the

petitioners in Whren urged the Court to fashion a new rule

restricting or regulating officers’ ability to stop vehicles in order to

reduce the possibility of pretextual stops. The Whren petitioners

argued that a balancing test supported creation of such a rule. The

Court rejected the argument, stating:

Where probable cause has existed, the only cases in

which we have found it necessary actually to

or seizures conducted in an extraordinary manner

.... The making of a traffic stop out-of-uniform

does not remotely qualify as such an extreme

practice, and so is governed by the usual rule that

probable cause to believe the law has been broken

“outbalances” the private interest in avoiding police

contact.

13

For the run-of-the-mine case, which this

surely is, we think there is no realistic alternative to

the traditional common-law rule that probable cause

justifies a search and seizure.

Id. at 1776-77.

Here, an arrest on the basis of the Arlington Heights

licensing ordinance is extraordinary. That ordinance, if it is a

criminal provision at all, is barely one. It seems criminal only in

the sense that Illinois law allows arrests upon probable cause to

believe that it has been violated. People v. Edge, 94 N.E.2d 359,

363 (Ill. 1950) (authorizing arrest).’ Once the arrestee has been

brought before the court, however, the “criminal” attributes of the

ordinance virtually disappear. From that point forward, procedures,

including the burden of proof, are essentially similar to those in

civil cases. Moreover, Petitioner here is not seeking to displace a

common law rule. On the contrary, in this case — unlike Whren —

traditional common law principles and the Fourth Amendment

balancing test both produce the same result, namely that custodial

arrests for violations of this licensing ordinance should not be

allowed.

3. The Proposed Rule Is Consistent with

Normal Law Enforcement Practices.

Precluding arrests under these circumstances will not

impede any legitimate and useful law enforcement practice. It

certainly will not call into question the long-established practice of

law enforcement stops for traffic violations, even when such

” The Edge court explained, however, that “an action for a violation of

a municipal ordinance is both tried and reviewed as a civil proceeding.” 94

N.E.2d at 363.

14

violations are punished only by fines. Unlike an arrest, a stop is

necessary for an officer to issue a citation (or warning). Moreover,

the line between stops and arrests is a familiar one. Numerous

cases recognize the difference between traffic stops and other stops

short of arrest, on the one hand, and custodial arrests, on the other;

several decisions of this Court turn on the distinction. See, e.g.,

United States v. Hensley, 469 U.S. 221 (1985) (investigatory stop

upheld on reasonable suspicion short of probable cause); Berkemer

v. McCarty, 468 U.S. 420 (1984) (roadside questioning during

traffic stop did not require warnings that are necessary upon arrest).

Forbidding arrests for fine-only offenses, not involving

breach of the peace or a threat to public health or safety, also will

not impede enforcement of so-called “quality of life” laws. A

recent, and well publicized, law enforcement strategy requires

active enforcement of such prohibitions. See, e.g., William Bratton,

Turnaround: How America's Top Cop Reversed the Crime

Epidemic (1998); John Leo, You might Even Want to Live There,

Newsweek, Nov. 4, 1996, at 19. Implementing this strategy, former

New York City Police Commissioner William Bratton directed

Transit Authority officers to target subway turnstile jumpers for

arrest. Bratton, supra, at 152-56. The rule we propose would not

hinder this strategy. New York law classifies fare evasion as a

Class A misdemeanor, punishable by a year in jail and $1,000 fine.

N.Y. Penal Law §§ 70.15, 80.05, 165.15 (McKinney 1988, 1998 &

Supp. 1998); People v. Anderson, 489 N.Y.S.2d 486, 486-67 (N.Y.

App. Div. 1985). Other significant “quality of life” prohibitions

likely carry similar penalties, and several such offenses involve a

breach of peace or a risk to public health and safety, eg.,

prohibitions against public urination or defecation. The common

eR

15

law permitted arrests for such offenses, and for them, the outcome

of the balancing test will likely be different.*

II. AT THE LEAST, THE COURT SHOULD REQUIRE

A WARRANT FOR CUSTODIAL ARRESTS IN

THESE CIRCUMSTANCES.

At the least, a warrant should be required before an arrest

for violation of a fine-only ordinance, not involving a breach of the

peace or threat to the public health or safety. In view of the

interests at stake on both sides, a neutral magistrate should

determine whether there is probable cause, and should at least have

the opportunity to consider whether an arrest warrant, rather than a

summons, is necessary.

In numerous decisions, this Court has explained and

enforced the Fourth Amendment’s preference for warrants for both

searches and seizures. Beck v. Ohio, 379 U.S. 89, 96 (1964); Wong

Sun v. United States, 371 U.S. 471, 481-82 (1962); Terry, 392 U.S.

at 20 (1968); Davis v. Mississippi, 394 U.S. 721, 728 (1969). The

warrant requirement serves as a “checkpoint” between the

government and the public, where a neutral and detached magistrate

is able to weigh the strength of the government’s evidence against

the liberty interest that the government’s contemplated action will

* It also should be mentioned that nothing in the rule we propose will

undercut an apparent trend toward requiring arrests in cases of domestic

violence. At least 15 states and the District of Columbia have enacted mandatory

arrest laws in such cases. Marion Wanless, Note, Mandatory Arrest: A Step

Toward Eradicating Domestic Violence, But Is It Enough?, 1996 U. Ill. L. Rev.

533, 538. Congress also passed the Violence Against Women Act, which

provides funds to states that implement mandatory arrest programs. /d. at 543.

But the offenses targeted by the such laws are at least misdemeanor crimes, not

fine-only ordinance violations. Moreover, these offenses involve obvious threats

to public safety.

16

invade. Steagald v. United States, 451 U.S. 204, 212-13 (1981); see

also Johnson v. United States, 333 U.S. 11, 14 (1948). However,

the Court’s preference for arrest warrants is not as strong when

there are circumstances of special need, such as when the police

have probable cause to believe that the person to be arrested has

committed a felony or when the police have reason to believe that

the suspect is dangerous. Watson, 423 U.S. at 419-20 (warrantless

arrest of felon in public place); Minnesota v. Olson, 495 U.S. 91,

100-01 (1996) (warrantless entry into home to arrest actual

murderer possibly justified) (dicta).

Alleged violations of fine-only ordinances, such as the

Arlington Heights licensing ordinance, simply present no need to

dispense with a warrant. The Village has expressed its low concern

about violations, by choosing to punish them only with fines. Cf

State v. Nelson, 914 P.2d 97, 100 n.14 (Wash. Ct. App.), review

denied, 922 P.2d 99 (Wash. 1996) (by making misdemeanor offense

punishable only by fine, state “said, in essence, that it had only a

minimal punishment interest in conduct of that sort”). Moreover,

as we explain above, for virtually every other purpose, Illinois law

treats this ordinance as a civil, not criminal provision.

A bright-line rule requiring a warrant in these circumstances

would be consistent with the concern the Court expressed in

Watson, when it declined to require case-by-case assessments of the

need to dispense with arrest warrants. 423 U.S. at 423-24. The

Court explained that it did not want “to encumber criminal

prosecutions with endless litigation with respect to the existence of

exigent circumstances, whether it was practicable to get a warrant,

whether the suspect was about to flee, and the like.” Jd. The police

would have clear guidance from a categorical rule forbidding

warrantless arrests for fine-only offenses not involving a breach of

the peace or a threat to public health or safety.

17

CONCLUSION

The Court should find that custodial arrests are unreasonable

under the Fourth Amendment, when made for alleged violations

fine-only ordinances not involving a breach of the peace or

threatening the public health or safety. At the least, the police

should obtain a magistrate’s authorization before arresting for such

quasi-criminal offenses.

Respectfully submitted,

WILLIAM J. MERTENS

JAY T. BLOUNT

Swidler & Berlin, Chartered

3000 K Street N.W., Suite 300

Washington, DC 20007

(202) 424-7500

Of Counsel:

BARBARA BERGMAN

Co-Chair, NACDL Amicus Committee

University of New Mexico School of Law

1117 Stanford N.E.

Albuquerque, NM 87131

(505) 277-2146

Dated: February 23, 1998