Amicus Curiae Brief — Ricci v. Village of Arlington Heights

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

RANDALL RICCI,

Vv.

VILLAGE OF ARLINGTON HEIGHTS,

A MUNICIPAL CORPORATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

Petitioner,

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

US. CONFERENCE OF MAYORS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION,

AND INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENT

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol St., N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

QUESTIONS PRESENTED

1. Whether the Fourth Amendment prohibits warrant-

less arrests for misdemeanors that do not involve a breach

of the peace.

2. Whether an arrest that is supported by probable

cause is per se unreasonable under the Fourth Amend-

ment solely because the underlying offense is punishable

by a fine and not by incarceration.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...W...-..-...2.........ccecsccneseeses

SAEED GE DCR crcrcrcctncecnstenccnseencesccenecesnsceens

INTEREST OF THE AMICI CURIAB |...

SUMMARY OF ARGUMENT .....0...0.0....-necccneceees

Il.

THE FOURTH AMENDMENT DOES NOT

PROHIBIT WARRANTLESS ARRESTS FOR

MISDEMEANORS THAT DO NOT INVOLVE

A BREACH OF THE PEACE .............0........

THE FOURTH AMENDMENT DOES NOT

PROHIBIT WARRANTLESS ARRESTS FOR

“FINE ONLY” OFFENSES COMMITTED IN

THE ARRESTING OFFICER’S PRESENCE...

A. Commission of an Offense in the Arresting

Officer’s Presence Is the Strongest Possible

Case of Probable Cause ................. ee.

B. The Ability to Arrest for Ordinance Viola-

tions Committed in the Presence of Arrest-

ing Officers Is Essential to Legitimate Law

CC EE a

1. Local Government Ordinances, Including

Those Punishable by Fines, Are Enacted

And Enforced to Protect the Public...

2. Law Enforcement Officers Must Have the

Ability to Make Warrantless Arrests for

“Fine Only” Offenses Committed in Their

Be sarresesscntninntnineiitnnineteairatiiiataninniaibeadiines

CONCLUSION ........... = a 2

TABLE OF AUTHORITIES

Cases Page

Bad Elk v. United States, 117 U.S. 529 (1900)... 6

Berman v. Parker, 348 U.S. 26 (1954) ................... 13

Breard v. City of Alexandria, 341 U.S. 622

| SSS ee ee 15

Brinegar v. United States, 338 U.S. 160 (1949)... 10

Commonwealth v. Williams, 568 A.2d 1281 (Pa.

SE, GE, TD cencenteeseeenniccninsdnianndins 20

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

Hood v. City of Bessemer, 404 So.2d 710 (Ala.

Crim. App. 1980), aff'd, 404 So.2d 717 (Ala.

eee ee oe , 20

Howard v. State, 932 S.W.2d 216 (Tex. App.

OO eyy———————————————— - 19

In re William M., 655 A.2d 158 (Pa. Super. Ct.),

appeal denied, 666 A.2d 1058 (Pa. 1995) . 19

Moon v. State, 262 So.2d 615 (Ala. Crim. App.

ES ee ee a 20

Minnesota v. Dickerson, 508 U.S. 366 (1998)... 10

Mustfow v. Rice, 663 F. Supp. 1255 (N.D. Il.

SG canccuscthienteainnstibinicnntaaiinditiintnlatinbipsiiladamatiiansins 17, 22

Noble State Bank v. Haskell, 219 U.S. 104 (1910). 2, 13,

Payton v. United States, 445 U.S. 573 (1980)... passim

People v. Edge, 94 N.E.2d 359 (Til. 1950) .............. 17

State v. Sellers, 350 N.W.2d 460 (Minn. Ct. App.

RR Se re eS Ee he eS Ve 18

Steagald v. United States, 451 US. 204 (1981). 3, 5, 5-6

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) 20

Tennessee v. Garner, 471 U.S. 1 (1985) ......... —_ 6

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

Welsh v. Wisconsin, 466 U.S. 740 (1984)... i 11

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

Statutes and Ordinances

Ala. Code § 13A-1-2(1) —.......... Pe ee So 20

Ala. R. Crim. P. 4.1(a) (1) (ii) ——.............. ‘Cee 20

p EC nana ITE 20

PO Ee 20

TABLE OF AUTHORITIES—Continued

Page

Alaska Stat. § 12.25.180(b) (2) 0 20

Birmingham, Ala., City Code § 9-2-25... 20

I 17

Cal. Penal Code § 836(a) (1)... 17

Cal, Penal Code § 6506 17, 18

Cal. Penal Code § 853.6(1) 0.00000 23

Cal. Penal Code § 853.6(5) 0.000.000. 22

Cal. Penal Code § 853.6(7) 0. 21

Cal. Penal Code § 853.6(9) 0. 22

Cal. Vehicle Code § 40802 0... 22

Cal. Vehicle Code § 40803 0000. 23

Fla. Stat. Ann. § 901.15(1) —...0... 17-18

Ill. Rev. Stat.,ch. 110A, para.528... 17

Mich. Comp. Laws § 764.15(a) 18

Milwaukee Code of Ordinances § 106-38 sist 22

Minn. Stat. Ann. § 629.34 subd. l(c)... 18

ee 18-19

N.H. Rev. Stat. Ann. § 594:10.I(a) 19

N.Y. Crim. Proc. Law § 140.10(a) 19

N.Y. Penal Law § 10.00.1 ESS <n 19

Ohio Rev. Code Ann. § 2935.03... 19

Pa. R. Crim. P. tit. 42, Rule6002(a).. sts 19

Pa. Stat. Ann. tit.53,§ 13349 19

Pa. Stat. Ann. tit. 58,§ 46121... 20

Tex. Crim. Proc. Code Ann. § 14.01(b).... 19

16 U.S.C. § la-6(b) (1) 20 8

EES Ree Oe ees ea a 21

a i i 21

ERLE a > 21

16 U.S.C. § 971f...... ae ee 21

I 8

EES Re ae a 3, 6, 7-8

Ee Sc 8

18 U.S.C. § 3056(c) (1) (C) 8

BUSS. $5088 (a) (3) 8

LE 8

ae U.S.C. § F588 (a) (3) —...................................... 8

40 U.S.C. § 212a...... snslineiineribiasidinisietiiatiatenaitiiiats 8

TABLE OF AUTHORITIES—Continued

Page

gf ae aes ee x

42 U.S.C. § 7270a Se ee Se vere 8

Other Authorities

AARP Plots New Measures to Foil Telemarketing

Fraud, Orange County (Cal.) Register, Feb. 19,

TE SS a eee en 15

American Law Institute, Model Code of Pre-

Arraignment Procedure (1975) .................... passim

Edward C. Fisher, Laws of Arrest (1967) ........... 7

Halsbury’s Laws of England (4th ed. 1990) __... 23, 23-24

Stephanie Mencimer, “When Meters Expire,”

Washington City Paper, July 4, 1997, at 19_....... 14

Osborne M. Reynolds, Jr., Local Government Law

0 ee ee ee 14, 15

C. Dallas Sands, et al., Local Government Law

(1996) ............ SE oa 15, 16

William A. Schroeder, Warrantless Misdemeanor

Arrests and the Fourth Amendment, 58 Mo. L.

KS SE a en 8, 6, 7

Telemarketing Fraud Rings US Huge Losses,

Rocky Mountain News, Nov. 21, 1997, at 5B........ 15

Horace L. Wilgus, Arrest Without A Warrant, 22

8% § fF £=x>eeeKS Sa 7, 13-14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-501

RANDALL RICCI,

Vv.

VILLAGE OF ARLINGTON HEIGHTS,

A MUNICIPAL CORPORATION,

Respundent.

Petitioner,

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

US. CONFERENCE OF MAYORS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION,

AND INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION

AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF THE AMICI CURIAE '

Amici are organizations whose members include state,

county and municipal governments and officials through-

1 The parties have consented to the filing of this brief amicus

curiae. Letters indicating their consent have been filed with the

Clerk of the Court. Pursuant to Rule 37.6, amici state that no

out the United States. Amici have a compelling interest

in the legal issue presented in this case: whether the

Fourth Amendment prohibits warrantless arrests for of-

fenses committed in the presence of the arresting officers.

There are many recurring situations in which state and

local government law enforcement officers must, if the

law is to be enforced, have the authority to make warrant-

less arrests for offenses committed in their presence, even

if the penalty for the offense is a fine. At the state level,

the effective enforcement of a wide range of essential

motor vhicle laws would be undermined by the adoption

of petitioner’s position. At the municipal level, the mean-

ingful exercise of the police power—which “extends to all

the great public needs,” Noble State Bank v. Haskell, 219

U.S. 104, 111 (1910) (Holmes, J.)—-would be seriously

compromised. Because municipal governments bear the

primary responsibility for enacting and enforcing laws to

protect the great public needs of our cities, towns, and

counties, they must have the corresponding ability to en-

force these laws. Consequently, adoption by this Court

of the position of petitioner and his amici “would consti-

tute an intolerable handicap for legitimate law enforce-

ment.” Gerstein v. Pugh, 420 U.S. 103, 113 (1975).

Because of the importance of the questions presented to

amici and their members, amici respectfully submit this

brief to assist the Court in resolving this case.

STATEMENT

Amici adopt respondent’s statement.

counsel for a party has authored this brief in whole or in part, and

that no person or entity, other than the amici or their members,

has made a monetary contribution to the preparation or submission

of this brief.

SUMMARY OF ARGUMENT

I. Contrary to petitioner’s contention, the Fourth

Amendment does not incorporate the ancient common law

rule prohibiting warrantless arrests for misdemeanors that

do not involve a breach of the peace. This Court’s Fourth

Amendment cases “have not ‘simply frozen into constitu-

tional law those enforcement practices that existed at the

time of the Fourth Amendment’s passage.’” Steagald v.

United States, 451 U.S. 204, 217 n.10 (1981) (citation

omitted). Instead, in making its determinations as to

what law enforcement practices are reasonable, the Court

looks to the laws of the States and of the federal govern-

ment.

Over the past century, virtually every State has en-

larged the authority of law enforcement officers to allow

warrantless arrests for misdemeanors not involving a

breach of the peace. See William A. Schroeder, Warrant-

less Misdemeanor Arrests and the Fourth Amendment, 58

Mo. L. Rev. 771, 776-86 & nn. 10-22 (1993). Congress

likewise has enacted numerous laws giving federal law

enforcement personnel the same authority. See, e.g., 18

U.S.C. § 3052 (FBI). See also American Law Institute,

Model Code of Pre-Arraignment Procedure § 120.1

(1975). Under this Court’s cases, this body of law dem-

onstrates that warrantless arrests for misdemeanors not

involving a breach of the peace are reasonable under the

Fourth Amendment.

II. A. The Fourth Amendment does not prohibit war-

rantless arrests for “fine only” offenses committed in the

arresting officer’s presence. The Fourth Amendment’s core

mechanism for circumscribing the arrest authority of law

enforcement officers is the requirement of probable cause.

See Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975);

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

When, as in this case, a citizen not only commits an

offense in the presence of a police officer, but admits that

he is in the course of committing the offense, see Pet.

App. 7a, the strongest possible case of probable cause is

presented and no Fourth Amendment violation occurs as

the result of an arrest.

B. 1. The ability of law enforcement officers to arrest

for ordinance violations committed in their presence is

essential to legitimate law enforcement. City and county

ordinances, such as those violated by petitioner, are en-

acted and enforced pursuant to the police powers of local

government in order to protect the public. These laws are

no less essential to the public good simply because viola-

tions are punishable by fines rather than by a period of

incarceration. Not only may such fines be substantial as

they were in this case, see Pet. App. 7a, such offenses are

often just as destructive of the fabric of urban life as those

that are punishable by imprisonment.

2. Because arrests are costly and time-consuming for

law enforcement personnel as well as for the arrestee,

police officers and administrators will ordinarily prefer to

issue a citation on the spot rather than to arrest the of-

fender. There are, however, simply too many recurring

situations in which a citation—even for a “fine only” of-

fense—will not suffice to protect the public interest, or at

times even the interest of the arrestee. For this reason the

statutes and case law of numerous States authorize war-

rantless arrests for “fine only” ordinance violations com-

mitted in the arresting officer’s presence. So do a number

of federal statutes.

There are many circumstances in which the public in-

terest necessitates warrantless arrests of persons commit-

ting “fine only” offenses in a law enforcement officer’s

presence. These include: where the arrest is necessary to

ensure the cessation of the unlawful conduct, such as

when the offender is mobile or transient; the refusal of

the offender to sign a notice to appear at the hearing on

the charges; the inability or refusal of the offender to

produce identification to the arresting officer, or the pro-

duction by the offender of questionable identification; and

where the offender poses a danger to himself or to others.

It is mot possible to devise a constitutional prohibition

on warrantless arrests for “fine only” offenses that would

not “constitute an intolerable handicap for legitimate law

enforcement.” Gerstein, 420 U.S. at 113. Rather, this

Court should leave this matter to be addressed by the

States pursuant to their respective laws, as they have done.

ARGUMENT

I. THE FOURTH AMENDMENT DOES NOT PRO-

HIBIT WARRANTLESS ARRESTS FOR MISDE-

MEANORS THAT DO NOT INVOLVE A BREACH

OF THE PEACE

The Fourth Amendment does not prohibit warrantless

arrests for misdemeanors that do not involve a breach of

the peace. The ancient common law rule to the con-

trary has been enlarged by statute in virtually every

State and by Congress. Moreover, this Court’s Fourth

Amendment cases are grounded in the recognition that

“decisions in this area have not ‘simply frozen into con-

stitutional law those enforcement practices that existed at

the time of the Fourth Amendment’s passage.’” Steagald

v. United States, 451 U.S. 204, 217 n.10 (1981) (quot-

ing Payton v. New York, 445 US. 573, 591 n.33

(1980)). As Justice Marshall wrote for the Court in

Steagald,

The common-law rules governing searches and arrests

evolved in a society far simpler than ours is today.

Crime has changed, as have the means of law en-

forcement, and it would therefore be naive to assume

that those actions a constable could take in an En-

glish or American village three centuries ago should

necessarily govern what we, as a society, now regard

as proper.

451 US. at 217 n.10. The Fourth Amendment thus

“must be interpreted ‘in light of contemporary norms and

conditions.’ Jd. (quoting Payton, 445 U.S. at 591 n.33).

See also Tennessee v. Garner, 471 U.S. 1, 13 (1985).

The core inquiry in every Fourth Amendment case is

“reasonableness.” Whren v. United States, 116 S.Ct.

1769, 1776 (1996); Payton, 445 U.S. at 585-86. In its

case law analyzing the constitutionality of arrests, the

Court has discerned contemporary norms and conditions,

and thus made a determination of what law enforcement

practices are reasonable, by studying the practices of the

States and the determinations of Congress. See United

States v. Watson, 423 U.S. 411, 418-24 (1976).

A review of state and federal law demonstrates that

there is “virtual unanimity on this question” among the

States, Payton, 445 U.S. at 600, which have enlarged the

common law rule to permit warrantless arrests for mis-

demeanors that do not involve a breach of the peace.

Further, Congress has enacted numerous statutes that

authorize federal law enforcement officers to “make arrests

without warrant for any offense against the United States

committed in their presence,” 18 U.S.C. § 3052, a grant

of authority far broader than the common law. There is

accordingly no basis for petitioner’s suggestion that the

Fourth Amendment incorporates the antiquated common

law rule that limited warrantless arrests to misdemeanors

involving a breach of the peace.

A. As this Court has repeatedly recognized, the com-

mon law power of arrest can be enlarged by statute. See,

e.g., Bad Elk v. United States, 177 U.S. 529 (1900). Pro-

fessor Schroeder recently undertook an exhaustive analysis

of state law on warrantless arrests and concluded that the

“breach of the peace requirement . . . has been abandoned

in almost every American jurisdiction.” William A.

Schroeder. Warrantless Misdemeanor Arrests and the

Fourth Amendment, 58 Mo. L. Rev. 771, 848 (1993).

With the “growth of organized police forces in the late

nineteenth and early twentieth centuries, most American

jurisdictions attempted to expand the common law arrest

powers.” Id. at 789. By the early 1920’s, another com-

mentator writes, “[s]tatutes and municipal charters . . .

quite generally authorized an officer to arrest for any mis-

demeanor whether a breach of the peace or not, without a

warrant, if committed in the officer's presence.” Horace

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

673, 705-06 (1924).

In the mid-1960’s, yet another survey of the law of

arrest concluded that “most modern statutes have enlarged

the powers of arrest without warrant to extend to any

offense committed in the presence of the arresting officer,

including those not amounting to a breach of the peace.”

Edward C. Fisher, Laws of Arrest 181 (1967). This

study further explained that while “ ‘[a]t common law the

right to arrest for a misdemeanor committed in the pres-

ence of the officer is confined to those offenses which

amount to a breach of the peace . . . the distinction is of

slight importance today.’” Jd. (quoting 4 Am. Jur. Arrest

§ 26). Hence, it is no surprise that today not only has the

breach of the peace requirement been abandoned by stat-

ute in virtually every American jurisdiction, but that “[rje-

cently, the trend away from the common law rule has

accelerated.” Schroeder, 58 Mo. L. Rev. at 785.*

B. The determination of Congress, another important

part of the Fourth Amendment calculus, see Watson, 423

U.S. at 423, has likewise been to expand the powers of

federal law enforcement personnel to arrest for non-felony

offenses not involving a breach of the peace. Numerous

federal statutes grant federal officials the authority to

“make arrests without warrant for any offense against the

United States committed in their presence.” 18 U.S.C.

2 The statutory authority for these conclusions is collected in

Schroeder, 58 Mo. L. Rev. at 777-86 nn. 10-22.

§ 3052 (FBI); see also id. § 3050(3) (Federal Bureau of

Prisons); id. § 3053 (U.S. Marshals Service); id. § 3056

(c)(1)(C) (Secret Service); id. §3061(a)(2) (US.

Postal Service); id. § 3063 (Environmental Protection

Agency); 16 U.S.C. § la-6(b)(1) (National Park Serv-

ice); 26 U.S.C. § 7608(a)(3) (Internal Revenue Service);

40 U.S.C. § 212a (U.S. Capitol Police); 42 U.S.C. § 2456a

(National Aeronautics and Space Administration); id.

§ 7270a (Strategic Petroleum Reserve). These statutes

are “the expression of the judgment of Congress that such

an arrest is ‘reasonable.’” Payton, 445 U.S. at 590.

This statutory expansion of arrest authority is fully

supported by the American Law Institute, Model Code of

Pre-Arraignment Procedure (1975).* The section of the

Model Code that governs arrest without a warrant does

not require a breach of the peace for a warrantless arrest

for a misdemeanor or petty misdemeanor, but rather re-

quires only that such an offense be committed “in the

Officer’s presence.” ALI Model Code § 120.1(1)(c)

(quoted in Watson, 423 U.S. at 422 n.11).4 “ ‘The Code

thus adopts the traditional and almost universal standard

for arrest without a warrant.’” Watson, 423 U.S. at 422

(quoting Commentary to Model Code § 120.1, at 289

(footnotes omitted) ).

Notwithstanding the foregoing, petitioner asserts that

the law and practice in “the overwhelming majority of

states” are “contemporary translations of the common

law rule.” Pet. Br. 13-14. Petitioner is in error. The law

*On the history and importance of the ALI Model Code, see

Watson, 423 U.S. at 422.

*The Model Code further expands the common law rule by au-

thorizing arrests for misdemeanors not committed in the arresting

officer’s presence “if the officer has reasonable cause to believe that

such person . . . (i) will not be apprehended unless immediately

arrested; or (ii) may cause injury to himself or others or damage

to property unless immediately arrested.” Model Code § 120.1

(quoted in Watson, 423 U.S. at 422 n.11).

of virtually every State, federal law, and the ALI Model

Code all conclusively establish that any common law rule

requiring a breach of the peace for a warrantless misde-

meanor arrest has long since been abandoned throughout

the country. Under this Court’s cases, this uniform body

of law demonstrates that warrantless arrests for misde-

meanors not involving a breach of the peace are reason-

able and thus not proscribed by the Fourth Amendment.

Il. THE FOURTH AMENDMENT DOES NOT PRO-

HIBIT WARRANTLESS ARRESTS FOR “FINE

ONLY” OFFENSES COMMITTED IN THE ARREST-

ING OFFICER’S PRESENCE

A. Commission of an Offense in the Arresting Officer’s

Presence Is the Strongest Possible Case of Probable

Cause

Petitioner and his amici rightly decry the prospect that

the police be given “vast and unchecked power.” ACLU

Br. Am. Cur. 16. In this regard the ACLU observes that

“{i]t is by now familiar history that the framers’ dismay

at statutes granting general prerogatives to search and

seize (like the writs of assistance) was one of the princi-

pal motivating factors, not only for the Revolution, but

for the creation of the Fourth Amendment itself.” /d. at

16 (citing Nelson B. Lasson, The History and Develop-

ment of the Fourth Amendment 13-78 (1937)).

More to the point, however, “[{t]here is no historical

evidence that the Framers or proponents of the Fourth

Amendment, outspokenly opposed to the infamous gen-

eral warrants and writs of assistance, were at all con-

cerned about warrantless arrests by local constables and

other peace officers.” Watson, 423 U.S. at 429 (Powell,

J., concurring) (citing Lasson, History of the Fourth

Amendment, at 79-105). Indeed, “the Second Congress’

passage of an Act authorizing such arrests so soon after

the adoption of the Fourth Amendment itself underscores

the probability that the constitutional provision was in-

tended to restrict entirely different practices.” Jd. at 429-

30. See also id. at 420-21 (majority opinion).

The Fourth Amendment responds to the problem of

unbounded police discretion to arrest by its requirement

of probable cause. To allow an arrest on some lesser

basis than probable cause would “ ‘leave law-abiding citi-

zens at the mercy of the officers’ whim or caprice,’” Ger-

stein v. Pugh, 420 U.S. 103, 112 (1975) (quoting Brine-

gar v. United States, 338 U.S. 160, 176 (1949) ), the pre-

cise evil posed by the infamous writs of assistance. See

also Whren, 116 S. Ct. at 1776 (“probable cause” is the

“traditional justification” for “police intrusion”). Thus.

Gerstein elaborates,

The standard for arrest is probable cause, defined in

terms of facts and circumstances ‘sufficient to war-

rant a prudent man in believing that the [suspect]

had committed or was committing an offense.’ This

standard, like those for searches and seizures, repre-

sents a necessary accommodation between the indi-

vidual’s right to liberty and the State’s duty to control

crime.

420 US. at 111-12 (citations omitted). Under this stand-

ard, “a policeman’s on-the-scene assessment of probable

cause provides legal justification for arresting a person

suspected of crime, and for a brief period of detention to

take the administrative steps incident to arrest.” Jd. at

113-14. Cf. Minnesota v. Dickerson, 508 U.S. 366, 375

(1993) (under “plain-view” doctrine, “if police are law-

fully in a position from which they view an object, if its

incriminating character is immediately apparent, and if

the officers have a lawful right of access to the object,

they may seize it without a warrant”) (citations omitted ).

It is obvious that when, as in this case, a citizen not

only commits an offense in the presence of an officer

but admits to the officer that he is in the course of com-

mitting the offense, see Pet. App. 7a, there is not the re-

motest possibility that a “ ‘law-abiding citizen{]'” will be

left “‘at the mercy of the officers’ whim or caprice.’ ”

Gerstein, 420 U.S. at 112 (citations omitted). On the

contrary, the admission by a citizen to a police officer

that he is in the course of committing an offense presents

the strongest possible case of probable cause. And while

“in principle every Fourth Amendment case, since it turns

upon a ‘reasonableness’ determination, involves a balanc-

ing of all relevant factors . . . [with rare exceptions . . .

the result of that balancing is not in doubt where the

search or seizure is based upon probable cause.” Whren,

116 S. Ct. at 1776.

In Whren the Court elaborated on the “rare excep-

tions” that require such balancing.

Where probable cause has existed, the only cases

in which we have found it necessary actually to per-

form the ‘balancing’ analysis involved searches or

seizures conducted in an extraordinary manner, un-

usually harmful to an individual’s privacy or even

physical interests—such as, for example, seizure by

means of deadly force, unannounced entry into a

home, entry into a home without a warrant, or physi-

cal penetration of the body.

Id. at 1776-77 (citations omitted).

This case does not remotely resemble any of these “rare

exceptions.” * Indeed, the facts of this case have much in

5 Although Payton and Welsh v. Wisconsin, 466 U.S. 740 (1984),

involved warrantless entries into a home, those entries were non-

consensual. See Payton, 445 U.S. at 576, 587; Welsh, 466 U.S. at

743 n.1 (assuming entry to be non-consensual). In this case, by

contrast, not only was the arrest made at petitioner's place of busi-

ness rather than his home, the entry was justified by the arrest

common with those of Whren itself, in which officers had

observed the plaintiff committing a “civil traffic violation.”

Id. at 1771. Despite the ubiquity of such violations, the

Whren Court emphasized that it was “aware of no prin-

ciple 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 meas-

ure of the lawfulness of enforcement.” Jd. at 1777.

Petitioner’s commission of, and admission to, an offense

in the presence of the arresting officers obviate the need

for any further Fourth Amendment analysis in this case.

See Whren, 116 S. Ct. at 1776. Even if the Court con-

cludes that further balancing is necessary, however, the

Fourth Amendment does not prohibit warrantless arrests

for “fine only” ordinance violations committed in the pres-

ence of a law enforcement officer. Such a holding “would

constitute an intolerable handicap for legitimate law en-

forcement.” See Gerstein, 420 U.S. at 113; see also Wat-

son, 423 U.S. at 431 (Powell, J., concurring).

B. The Ability to Arrest for Ordinance Violations

Committed in the Presence of Arresting Officers Is

Essential to Legitimate Law Enforcement

In some Fourth Amendment cases the Court concludes

that it is necessary to engage in a detailed “balancing of

warrant the officers were serving on one of petitioner's employees,

who listed petitioner's office as his place of business. See Resp. Br.

1-2.

Given the text of the Fourth Amendment, this Court has always

treated cases involving non-consensual searches or arrests within

the home as unique. See Payton, 445 U.S. at 585 (“the ‘physical

entry of the home is the chief evil against which the wording of

the Fourth Amendment is directed’”) (citation omitted) ; see also

id. (quoting Boyd v. United States, 116 U.S. 616, 630 (1386) )

(Fourth Amendment is directed at “invasions on the part of the

government . . . of the sanctity of a man’s home and the privacies

of life’).

all relevant factors” in order to determine whether the

Fourth Amendment standard of “reasonableness” has been

met. Whren, 116 S. Ct. at 1776. Balancing the harm to

the arrestee against the needs of effective law enforcement

demonstrates that warrantless arrests for offenses com-

mitted in the presence of the arresting officer are not pro-

hibited by the Fourth Amendment.

1. Local Government Ordinances, Including Those

Punishable by Fines, Are Enacted And Enforced

to Protect the Public

The Arlington Heights ordinances which made it un-

lawful for petitioner to operate his telephone solicitation

business without a license, Pet.-App. 2a & n.1 (citing

Village of Arlington Heights Code of Ordinances §§ 9-201,

14-3002), are a classic exercise of the police power. As

Justice Holmes explained,

the police power extends to all the great public needs.

It may be put forth in aid of what is sanctioned by

usage, or held by the prevailing morality or strong

and preponderant opinion to be greatly and imme-

diately necessary to the public welfare.

Noble State Bank v. Haskell, 219 U.S. 104, 111 (1911).

“Public safety, public health, morality, peace and quiet,

law and order—these are some of the more conspicuous

examples of the traditional application of the police power

r — affairs.” Berman v. Parker, 348 U.S. 26, 32

* As Professor Wilgus noted as early as 1924,

It is impossible to classify or enumerate the great number

of . . . misdemeanors or breaches of ordinances for which

peace officers may arrest, without a warrant, if committed in

their presence. They include violations of health and food

regulations, Sunday travelling, or entertainments, nuisances on

streets or sidewalks, or loitering, or meetings on same, cruelty

Nor are these concerns any less compelling merely

because a violation of an ordinance may be punishable,

at least in the first instance, by a monetary fine. Indeed,

of thousands

lars.”). And such offenses are no less destructive

fabric of urban life merely because they involve what may

at times be imprecisely referred to as “lesser” offenses.’

“{Ojne of the most important activities of iocal gov-

ernment is the regulation of trades and businesses.” Os-

borne M. Reynolds, Jr., Local Government Law 503

(1982). The compelling purposes of such regulation “in-

clude protecting the public from fraudulent activity or

price-gouging” and the protection of public health and

safety through the licensing and regulation of food

vendors. Id. at 504-09. Local governments also regulate

trades and professions, particularly those involving public

health and welfare (e.g., barbering, cosmetology), and

to animals, vagrancy, drunkenness, disturbances in school

houses, or at elections. .. .

Wilgus, 22 Mich. L. Rev. at 706-07 (citations omitted).

Of course, with the passage of time and the increasing com-

plexity of urban life, the specific ordinances on which the quality of

life depends have in some instances changed. See Resp. Br. 35, 37

(citing numerous provisions of the Chicago Municipal Code setting

forth “fine only” offenses).

* In Washington, D.C., for example,

The city’s rows of decapitated [parking] meters are not

unlike the subway graffiti sociologist Nathan Glazer described

20 years ago in an essay for The Public Interest. Glazer wrote

that graffiti imbues the passerby with “the inescapab)< knowl-

edge that the environment he must endure for an hour or more

a day is uncontrolled and uncontrollable, and that anyone can

invade it to do whatever damage and mischief the mind sug-

gests.”

Stephanie Mencimer, “When Meters Expire,” Washington City

Paper, July 4, 1997, at 19.

safety (¢.g., contractors, electricians, plumbers). 3 C.

Dallas Sands, et al., Local Government Law § 15.08

(1996). They also license and regulate taxis, busses, and

other vehicles for hire, id. § 15.12, and merchandising,

including auctions, auctioneers, retailers, peddlers, huck-

sters, other transient merchants, and used car and other

secondhand dealers. Id. § 15.16. “{DJoor-to-door sales-

persons, solicitors, canvassers, etc.” also engage in activi-

ties whose control “is often thought necessary to the

health and well-being of the community.” Reynolds, Local

Government Law at 511. See Breard v. City of Alex-

andria, 341 U.S. 622 (151).°

Today, door-to-door sales has been replaced by tele-

marketing, with all of its potential for harassment, fraud

and exploitation of the trusting, unsophisticated, or el-

derly.” In this case, for example, as petitioner acknowl-

edges, the Arlington Heights Police Department had,

prior to his arrest, “received complaints about the business

practices of petitioner’s firm,” Pet. 2, including complaints

“about ‘high pressure to contribute . . . on behalf of the

*In Breard, the Court emphasized the important public purposes

served by an ordinance regulating door-to-door sales :

Door-to-door canvassing has flourished increasingly in recent

years. ... Unwanted knocks on the-door by day or night are

a nuisance, or worse, to peace and quiet... .

[R]esponsible municipal officers have sought a way to curb the

annoyances.

341 U.S. at 626-27.

* See, e.g., AARP Plots New Measures to Foil Telemarketing

Fraud, Orange County (Cal.) Register, Feb. 19, 1998, at Al7;

Telemarketing Fraud Rings US Huge Losses, Rocky Mountain

News, Nov. 21, 1997, at 5B (noting study of Department of Justice

estimating annual losses to citizens of U.S. and Canada from tele-

marketing fraud at $40 billion per year; “the swindlers frequently

prey on the elderly and . . . fraud accounts for as much as 10

percent of the industry’”’).

Arlington Heights Police Department’” when he was in

fact soliciting money for an officers’ association. /d.

(quoting Pet. App. 20a). The essential first step in effec-

tively regulating the business practices of “telemarketers”

is to require them to obtain a license, like any other

business.”

2. Law Enforcement Officers Must Have the Ability

to Make Warrantless Arrests for “Fine Only”

Offenses Committed in Their Presence

Any arrest of an offender is a serious intrusion on the

arrestee, and should not be undertaken lightly. Indeed,

arrests are costly and time-consuming for law enforcement

personnel as well as for the arrestee. See ALI Model

Code § 120.2 note at 16. Police officers and adminis-

trators will ordinarily prefer to issue a citation on the spot

rather than to arrest the offender, if circumstances clearly

indicate that a citation will suffice both to enforce the law

and to assure the arrestee’s appearance at subsequent

judicial proceedings on the charges. See ALI Model

Code § 120.2(4) (encouraging “the maximum use of cita-

tions, so that persons believed to have committed offenses

will be taken into custot@y only when necessary in the

public interest”) .”

and activities subject to regulation . . . keep detailed records of

their operations reasonably related to the effectuation of legitimate

police power objectives.” Sands, Local Government Law §& 14.37.

The purpose of this and other license-related requirements is “pro-

tection of the consumer from abuses that might occur as a result

of incompetent or unethical practices.” Jd. § 15.02.

11 Although petitioner characterizes his arrest as a “full custodial

arrest,” Pet. 3, it was less intrusive than most arrests. Petitioner

was not handcuffed and did not undergo an inventory search or

fingerprinting. At the station he was not placed in a cell but rather

in an interview room where members of the public, such as wit-

nesses and crime victims, wait to speak to investigators. He was

There are, however, simply too many recurring situa-

tions—arising in the context of “fine only” offenses just as

in other. contexts—in which a citation will not suffice to

protect the public interest, or at times even the interest of

the arrestee. For this reason, a prohibition of such arrests

would be “an intolerable handicap for legitimate law

enforcement,” Gerstein, 420 U.S. at 113, and would un-

dermine the balancing of interests at the heart of the

Fourth Amendment’s reasonableness inquiry.

The necessity for the ability to make such arrests is

amply demonstrated by the existence of numerous state

laws that authorize warrantless arrests for ordinance vio-

lations committed in the arresting officer’s presence. Of

particular relevance to this case, “under Illinois law a

police officer is authorized to arrest those found violating

municipal ordinances that provide for only a fine and no

incarceration time.” Mustfov v. Rice, 663 F. Supp. 1255,

1269 (N.D. Ill. 1987) (citing Ill. Rev. Stat., ch. 110A,

para. 528; People v. Edge, 94 N.E.2d 359, 363 (IIl.

1950); Chicago Municipal Code § 11-25). See also, e.g.,

Cal. Penal Code § 836(a)(1) (warrantless arrest au-

thorized when arresting officer “has reasonable cause to

believe that the person . . . has committed a public of-

fense in the officer’s presence”); id. § 15.3 (defining “pub-

lic offense” as a violation of law punishable by fine); id.

§ 853.6 (enumerating situations in which officer should

arrest offender, rather than issuing a citation);” Fila.

at the station for approximately one hour and did not believe he

was under arrest until shortly before his release. See Resp. Br.

9-10. Petitioner’s arrest was thus less intrusive than what this

Court sanctioned in Gerstein when it upheld “a brief period of

detention [necessary] to take the administrative steps incident to”

an arrest based on probable cause. 420 U.S. at 114.

12 Although Cal. Penal Code § 853.6 encourages the issuance of

citations for persons arrested for “an offense declared to be a

misdemeanor, including a violation of any city or county ordinance,”

Stat. Ann. §901.15(1) (warrantless arrest authorized

when arrestee has “violated a municipal or county ordi-

nance in the presence of the officer”); Mich. Comp. Laws

§ 764.15(a) (authorizing warrantless arrest by peace offi-

cer for “ordinance violation committed in the peace offi-

cer’s presence”); Minn. Stat. Ann. § 629.34 subd.1(c)

(authorizing warrantless arrest “when a public offense

has been committed or attempted in the officer’s or con-

stable’s presence”); State v. Sellers, 350 N.W.2d 460, 462

(Minn. Ct. App. 1984) (defining “public offense” to

include violation of municipal ordinances “ ‘punishable

by fine or imprisonment’”) (citation omitted); Mo. Rev.

that section goes on to enumerate the numerous situations in which

the offender should not be cited and released. These include:

(1) The person arrested was so intoxicated that he or she

could have been a danger to himself or herself or to others.

(2) The person arrested required medical examination or

medical care or was otherwise unable to care for his or her

own safety.

(3) The person was arrested under one or more of the cir-

cumstances listed in [Vehicle Code] Sections 40302 [failure to

provide “satisfactory evidence of . . . identity” or “give a

written promise to appear”’] and 40303 [unsafe operation of

vehicle or riding bicycle under the influence]... .

(5) The person could not provide satisfactory evidence of per-

sonal identification.

(6) The prosecution of the offense or offenses for which the

person was arrested, or the prosecution of any other offense

or offenses, would be jeopardized by immediate release of the

person arrested.

(7) There was a reasonable likelihood that the offense or

offenses would continue or resume, or that the safety of persons

or property would be imminently endangered by release of the

person arrested.

(8) The person arrested demanded to be taken before a magis-

trate or refused to sign the notice to appear.

(9) There is reason to believe that the person would not ap-

pear at the time and place specified in the notice. The basis

for this determination shall be specifically stated.

Cal. Penal Code § 853.6.

Stat. § 544.216 (authorizing warrantless arrests by state,

county or municipal law enforcement officer of “any per-

son the officer sees violating or who such officer has rea-

sonable grounds to believe has violated any law of this

state, including a misdemeanor or infraction, or has vio-

lated any ordinance over which such officer has juris-

diction”); N.H. Rev. Stat. Ann. § 594:10.1(a) (author-

izing warrantless arrest of person whom peace officer “has

probable cause to believe . . . has committed a misde-

meanor or violation in his presence”); N.Y. Crim. Proc.

Law § 140.10(a) (authorizing warrantless arrest of a

person for “[any] offense when [the officer] has reasonable

cause to believe that such person has committed such

offense in his presence”); N.Y. Penal Law § 10.00.1

(defining an “offense” as “conduct for which a sentence

to a term of imprisonment or to a fine is provided by any

law of this state or by any law, local law or ordinance

of a political subdivision of this state”); Ohio Rev. Code

Ann. § 2935.03 ‘authorizing warrantless arrest by state

or local law enforcement officer of “a person found violat-

ing . . . a law of this state, an ordinance of a municipal

corporation, or a resolution of a township”); Tex. Crim.

Proc. Code Ann. § 14.01(b) (“A peace officer may arrest

an offender without a warrant for any offense committed

in his presence or within his view.”); Howard v. State,

932 S.W.2d 216, 217 (Tex. App. 1996) (ordinance vio-

lation is an “offense” under Texas statute authorizing

warrantless arrests) .”

18 According to the ACLU (Br. Am. Cur. at 15 & n.17), “eight

states’ statutory schemes appear to . . . categorically prohibit[]

custodial arrests for fine-only offenses.” Qualification of this state-

ment is in order for at least three of those eight States.

In Pennsylvania, for example, Pa. Stat. Ann. tit. 53, § 13349

and Pa. R. Crim. P. tit. 42, Rule 6002(a) confer upon the Phila-

delphia police the authority to arrest for ordinance violations com-

mitted in their presence. See In re William M., 655 A.2d 158 (Pa.

Super. Ct.) (upholding warrantless arrest of juvenile for curfew

violation), appeal denied, 666 A.2d 1058 (Pa. 1995). See also Com-

The pressing needs of law enforcement have led to the

adoption of the foregoing laws and others like them, in-

cluding at the federal level."* These !aws demonstrate why

monwealth v. Williams, 568 A.2d 1281, 1284 (Pa. Super. Ct. 1990)

(borough police have authority to make warrantless arrests for

violation of “ ‘any ordinances of said borough for the violation of

which a fine or penalty is imposed’”) (quoting Pa. Stat. Ann. tit.

53, § 46121).

Alaska Stat. §§ 12.25.0356 and 12.25.180 authorize warrantless

arrests for ordinance violations and infractions, the latter when

the person “does not furnish satisfactory evidence of identity; or

. . . Pefuses to accept the citation or to give a written promise to

appear.” Jd. § 12.25.180(b)(2).

Under Alabama law, “[plJolice officers may arrest any person

without a warrant, on any day and at any time, for the violation of

a City ordinance committed in their presence.” Hood v. City of

Bessemer, 404 So.2d 710, 715 (Ala. Crim. App. 1980) (collecting

cases), aff'd, 404 So.2d 717 (Ala. 1981). See also Ala. R. Crim.

P. 4.1(a) (1) (ii) (authorizing warrantless arrest for “[a]ny of-

fense” committed in “the officer’s presence or view”); Ala. Code

§ 13A-1-2(1) (defining “offense” as “[c)onduct for which a sentence

to a term of imprisonment .. . or to a fine is provided by any law

of this state or by any law, local law or ordinance of a political

subdivision of this state”); Moon v. State, 262 So.2d 615 (Ala.

Crim. App. 1972) ; Birmingham (Ala.) City Code § 9-2-25 (authoriz-

ing all Birmingham police officers to “arrest without warrant any

person who, in their presence, commits any violation of this code

or other city ordinance or any other law”).

Insofar as the ACLU’s characterization of the remaining five

States—Delaware, Kentucky, Maine, Rhode Island, and South

Dakota—is correct, their laws simply illustrate the fundamental

point made by the Fourth Circuit many years ago:

The fourth amendment protects individuals from unfounded

arrests by requiring reasonable grounds to believe a crime has

been committed. The states are free to impose greater restric-

tions on arrests, but their citizens do not thereby acquire a

greater federal right.

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

14 Federal statutes grant federal law enforcement personnel au-

thority to make warrantless arrests for violations of federal law

punishable only by monetary penalties. For example, Chapter 16

a ruling by this Court that the Fourth Amendment pro-

hibits warrantless arrests for “fine only” ordinance viola-

tions would unduly interfere with legitimate law enforce-

ment. Amici respectfully submit that if municipal gov-

ernments are to bear the chief responsibility for enacting

and enforcing laws to protect the “great public needs” of

our cities, towns, and counties, see Noble State Bank, 219

U.S. at 111, they must have the concomitant ability to

enforce these laws. As already noted, there are strong

fiscal and logistical disincentives against warrantless ar-

rests; nonetheless, there are many recurring situations in

which the public interest necessitates warrantless arrests

of persons committing offenses in the presence of the

arresting officer.

First are situations in which an arrest is necessary to

ensure the cessation of an ongoing violation. See Cal.

Penal Code § 853.6(7) (authorizing warrantless arrest

where there is “reasonable likelihood that the offense or

offenses would continue or resume”). Besides petitioner's

case, see Pet. App. 7a, there are a wide range of other

situations—particularly those involving mobile or tran-

sient offenders—where meaningful enforcement of im-

portant municipal laws may require the arrest of the

offender. For example, a person unlawfully blaring mes-

of Title 16 of the U.S. Code authorizes an official of the Coast

Guard, Department of Commerce, or Customs Service to arrest,

“with or without a warrant or other process, . . . any persons Su

committing in his presence or view a violation of this chapter or

the regulations issued thereunder,” 16 U.S.C. § 959(d), notwith-

standing that such violations are punishable only by fines. Jd. § 957.

Title 16A, which implements the Atlantic Tuna Conventions, au-

thorizes warrantless arrests even though violations of its provisions

— ao only by civil penalties. See 16 U.S.C. §§97le &

* For these reasons, a ruling that the Fourth Amendment pro-

hibits warrantless arrests for “fine only” offenses might well lead

state and local legislatures to add periods of incarceration to the

possible penalties for violations of these laws.

sages or music from a sound truck can, if simply cited and

released, readily move to another part of a large urban

area and resume the violation. This is also true of persons

vending food from a cart without a license, selling pro-

hibited materials such as fireworks or phony watches from

a cart or an improvised stand, or conducting games of

chance on a sidewalk. It may likewise be necessary in

order to enforce the law with respect to persons who

operate unlicensed cabs, delivery trucks, tow trucks, or

vans for hire. See Mustfov, 663 F. Supp. at 1258-59.

Another category of cases arises when the offender is

cited but “refuses to sign a promise to appear.” ALI

Model Code § 120.1 commentary at 305. The offender

“should then be arrested and taken to the police station

for further proceedings.” Jd. This situation includes,

but is not limited to, those instances in which the offender

is a motorist from out of state. See, e.g., Cal. Veh. Code

§ 40302 (offender to be arrested if he “refuses to give

{the officer] his written promise to appear in court”). See

also Cal. Penal Code § 853.6(9).”*

Another important—and growing—category of cases

are those in which the offender has no identification to

furnish to the officer, furnishes identification which the

officer has reason to believe is not genuine, or flatly re-

fuses to furnish any identification. See, e.g., Cal. Penal

Code § 853.6(5). In these cases the mere issuance of a

citation is meaningless, inviting repeated violations and

contempt for the law.

16 For example, the City of Milwaukee, near the Chicago metropoli-

tan area, has recently had great success fostering urban reviteliza-

tion by sponsoring a variety of street fairs. At the same time, the

City Code makes it an offense, punishable only by a fine, to possess

a small amount of marijuana for personal use. See Milwaukee Code

of Ordinances § 106-38. Clearly the City would be hard pressed to

enforce this ordinance against persons from out of state unless the

Milwaukee police could invoke the power of arrest.

Nor will such incidents arise only when a violator

simply lacks identification; organized groups wishing to

publicize their cause may engage in unlicensed parades

or demonstrations, purposely blocking city streets or other

areas in the hope of being cited. They may well wish to

carry things one step further and heighten media atten-

tion by refusing to provide identification to law enforce-

ment officers, thereby leaving the police no choice but to

arrest them if respect for the law is to be maintained.

Yet another category involves offenses in which the

violator poses a danger either to himself or to others, as,

for example, if he is intoxicated or under the influence of

drugs. See Cal. Penal Code § 853.6(1); Cal. Vehicle

Code § 40303 (authorizing warrantless arrest for “riding

a bicycle while under the influence of an alcoholic bev-

erage or any drug”). An arrest is also necessary when

the offender abusively resists issuance of a citation. See

ALI Model Code § 120.2 commentary at 304 (arrest

necessary for otherwise citable offense where officer can-

not rely on the “voluntary cooperation” of the offender).

The common law (on which petitioner and his amici so

heavily rely) has evolved similarly. Contemporary English

law authorizes warrantless arrests for petty misdemeanors

or other minor offenses for reasons that mirror many of

those in American law. These include: (1) that the name

of the “relevant person[*"] is unknown to, and cannot be

readily ascertained by, the constable”; (2) that the con-

stable has “reasonable grounds for doubting whether a

‘7 English law defines the “relevant person” as “any person whom

the constable has reasonable grounds to suspect of having com-

mitted or having attempted to commit the offense or of being in

the course of committing or attempting to commit it.” Halsbury’s

Laws of England (4th ed. 1990) para. 707 n.2 (citing Police and

Criminal Evidence Act 1984 sec. 25(2)). English common law is

thus more permissive than the law of many American jurisdictions

in that it does not have an “in presence” requirement for a warrant-

less arrest.

name furnished by the relevant person as his name is his

real name”; (3) that (a) the relevant person has “failed to

furnish a satisfactory address for service; or (b) the con-

stable has reasonable grounds for doubting whether an

address furnished by the relevant person is a satisfactory

address for service”; (4) that the constable has “reason-

able grounds for believing that arrest is necessary to pre-

vent the relevant person (a) causing physical injury to

himself or any other person; (b) suffering physical in-

jury; (c) causing loss of or damage to property; (d)

committing an offence against public decency; or (e)

causing an unlawful obstruction of the highway”; or (5)

that the constable has “reasonable grounds for believing

that arrest is necessary to protect a child or other vulner-

able person from the relevant person.” Halsbury’s Laws

of England, para. 707 (footnotes omitted).

The ALI Model Code of Pre-Arraignment Procedure—

which secxs to balance individual rights and the needs of

law enforcement, see id. at xiii-xiv—expressly declines to

adopt a rule prohibiting warrantless arrests for “petty

misdemeanors” committed in the presence of the arresting

officer. While stating a preference for the “maximum” use

of citations, see id. § 120.2(4), the drafters of the Code

nonetheless recognized that in many situations it will be

“necessary in the public interest” that persons who commit

Offenses be arrested and taken into custody rather than

cited on the spot and released. Id. The drafters thus con-

cluded that “[iJt is extremely difficult in drafting a statute

to make determinations that citations shall always be used

for particular crimes.” Jd. commentary at 305.¥

*® The drafters of the Model Code give the following examples of

circumstances in which a warrantless arrest may be “necessary in

the public interest” :

A person may be arrested for a minor offense under circum-

stances which suggest that identification procedures might

identify him as a person wanted for a more serious offense.

Persons who habitually ignore summonses and citations in

It is no solution to suggest, as does the A

warrantless arrests are only when there

“exigent circumstances.” ACLU Br. 22-23. This conces-

sion, helpful insofar as it acknowledges that the Fourth

Amendment does not prohibit warrantless arrests for fine

only offenses, is patently insufficient to meet the needs of

law enforcement. See, ¢.g., Payton, 445 U.S. at 583

(“exigent circumstances” are limited to “emergency or

dangerous situation{s]”). Another of petitioner's amici

highlights the insufficiency of the ACLU’s proposed stand-

ard by urging that warrantless arrests be permitted in

cases “involving a breach of the peace or a threat to

public health or safety.” National Association of Crim-

inal Defense Lawyers iér. Am. Cur. 16.

The inability of petitioner’s own amici to agree dem-

onstrates the impossibility of devising a workable consti-

tutional standard that would not “intolerabi[y] handicap

. . . legitimate law enforcement.” Gerstein, 420 US. at

113. It also demonstrates the wisdom of leaving this

matter to be addressed by the States pursuant to their

respective laws which, as indicated above, they have

done.

ACLU, that

are

traffic cases are often discovered when arrested on a minor

offense and fingerprinted. In other cases the most effective

way of avoiding a potentially explosive situation on the street

as the result of an arrest for a minor offense may be to trans-

port the arrested person quickly, to a police station. In still

other cases the arrested person may be intoxicated, or wounded,

or otherwise unfit to be left on the street with a citation in his

hand.

Id. commentary at 305-06.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,