# 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%3A10

## Record

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

## Text

Bupreme Court, U.S.
| oom Me D

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0125%3A10. Public record. Not legal advice.