Opposition Brief — Atwater v. Lago Vista

GAIL ATWATER, et ai.,

Petitioners,

v.

CITY OF LAGO VISTA, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

WILLIAM W. Kruecer, III

Counsel of Record

JOANNA R. LIPPMAN

FLETCHER & SPRINGER

Attorneys for Respondents

823 Congress Avenue

Suite 510

Austin Texas 78701

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

Table of Cited Authorities ................000- iii

ee ee l

eS tit«i‘(‘(‘é l:*C*C RR Cn 1

Il. The Proceedings Below. ................ 2

Reasons for Denying Writ ...............00005. 3

I. The Fourth Amendment Controls All

SE i ec uk i choca é MAMMMERECh 6 coc 4

II. Fifth Circuit Opinion Is Consistent With This

TE Si véuueubescuvasaseses 5

A. An Arrest is Reasonable if It is Made

with Probable Cause. ............... 5

B. Consideration of Additional Factors,

Only Under Extraordinary Circum-

I Oh a De oe as ww te 6

C. Knowles v. Iowa does not conflict with

the Fifth Circuit opinion. ........... 7

Ill. Fifth Circuit Opinion Is Consistent With

Opinions Of State And Federal Courts .... 8

**

Contents

Page

A. Consistency Among the Federal Courts

Of Appeal. .....ccccccscccecvvcsece 8

B. Consistency Among the State Courts.. 10

IV. Fifth Circuit Opinion Is Consistent With

Early American Jurisprudence ........... 12

A. Breach of Peace Claim was Waived. .. 12

B. Early American Jurisprudence is

Consist, ..ccccccvcccenesuenanes 13

iii

TABLE OF CITED AUTHORITIES

Cases:

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

ee eeeeeeneeneeeeeeeeeeeteeeeeeeeee#e#eeee#e#eee#e* # @¢ *# « «

Barry v. Fowler, 902 F.2d 770 (9® Cir. 1990) ....

Becker Steel Co. v. Cummings, 296 U.S. 74 (1935)

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

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

Carroll v. United States, 267 U.S. 132 (1925) ....

Fields v. City of South Houston, 922 F.2d 1183

Tete te nckcbbecesccccececse:

Fisher v. WMATA, 69. F.2d 1133 (4* Cir. 1982) ..

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

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

a

*_eeeeeeeeeeeeeeeee#ee e#eeeeee #©#e# #*# © #& © *® © *® © © © © © ©

Page

iv

Cited Authorities

Page

Illinois v. Ramirez, 618 N.E.2d 638 (I)! App. — 1"

ee, Ce kbaciccetcdeceduabeces sanawens 10

Knowles v. lowa, 525 U.S. 113 (1999) .......... 7,8

Michigan v. DeFillippo, 443 U.S. 31 (1979) ...... 4

Moore v. Gwinnett County, 967 F.2d 1495 (11 Cir.

1992) cert. den. 506 U.S. 1081 (1993) ........ 9, 10

Pyles v. Raisor, 60 F.3d 1211 (6" Cir. 1995) ..... y

Ricci v. Arlington Heights, 116 F.3d 288 (7® Cir.

1997), cert. dism‘d, 523 U.S. 613 (1998) ...... 7)

Stealgald v. United States, 451 U.S. 204 (1981) .. 12

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

Tennessee v. Garner, 471 U.S. 1 (1985) ......... 7

Thomas v. State, 614 So.2d 468 (Fla. 1993) ...... 11

United States v. Basey, 816 F.2d 980 (5® Cir. 1987)

0 0cesestddbed bon deans cant eniewsemad 9

United States v. Mota, 982 F.2d 1384 (9* Cir. 1993)

0 0000e6uced b60bs dled dandeeiebebbaend 9

United States v. Robinson, 414 U.S. 218 (1973) .. 4,7

Vv

Cited Authorities

United States v. Watson, 423 U.S. 411 (1976) .... 13

United States of America v. Trigg, 878 F.2d 1037

(7™ Cir. 1989), cert. den., 502 U.S. 963 (1991)

sn cvvbbivde dedes copewdeba sbnUbd biSesse ce 10

Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1* Cir.

FDEP. cccduvvdcedbedbs codadebeclbobodececs 9

Washington v. Hehman, 578 P.2d 527 (Wash. 1978) ic

Welsh v. Wisconsin, 466 U.S. 740 (1984) ........ 7

Whren v. United States, 517 U.S. 806 (1996) .....

aid de cde due tN UENOe OGN4 CSE ce webeuvies 6, 7, 8, 9, 10

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

United States Constitution:

Fourth Amendment ................ 2, 3, 4, 5, 6, 7, 14

Statutes:

SOE oc hectic ewieciteccctccceve's 13

SFTP TI TIT TTPL TTT Tee 9

vi

Cited Authorities

Page

TEXAS TRANSPORTATION Cope ANN., § 521.025 .... 6

TEXAS TRANSPORTATION Cope ANN., § 545.413(a) .. 6

TEXAS TRANSPORTATION Cope ANN., § 545.413(b) .. 6

TEXAS TRANSPORTATION Cope ANN., § 601.051 .... 6

TEXAS TRANSPORTATION Cope ANN., § 601.053 .... 6

TEXAS TRANSPORTATION Cope ANN., § 601.191 .... 6

Other Authority:

Mopet Cope OF PRE-ARRAIGNMENT PROCEDURE,

DOS bode cudesscduseddecedheisblvesss 13

l

Respondents, City of Lago Vista, former Lago Vista

Officer Bart Turek, and Police Chief Frank Miller,

respectfully submit this Brief in Opposition to the Petition

for Writ of Certiorari filed by Petitioners, Gail Atwater, and

Michael Haas as next friend of Anya Savannah Haas and

Mackinley Xavier Haas. Petitioners seek review of the

judgment and opinion of the United States Court of Appeals

for the Fifth Circuit, rendered on November 24, 1999.

Petitioners’ request for writ should be denied.

STATEMENT OF THE CASE

I. Statement of Facts.

On March 26, 1997, former Lago Vista Police Officer

Turek observed a Dodge pickup truck in which neither the

adult driver or the two young children were wearing seatbeits.

One of the children was standing on the passenger seat in

the truck. In accordance with the Texas law, Officer Turek

arrested Petitioner Atwater for failing to wear a seatbelt,

failing to seatbelt her children, failure to show proof of

financial responsibility and failure to display her driver’s

license. It is undisputed that she committed each of these

offenses. It is undisputed that Texas law authorized Petitioner

Atwater’s custodial arrest.

Petitioner Atwater was transported to the Lago Vista

Police Department, where she waited about fifty minutes for

the Magistrate. It is undisputed that no physical force or

threats of physical force were used against Petitioner Atwater

at any time during this incident. The Magistrate read

Petitioner Atwater her rights, and she was released after

posting bond.

2

It is undisputed that Officer Turek had probable cause

to believe that Petitioner Atwater committed five criminal

offenses. Petitioner Atwater’s arrest was effected in a public

place, and without the use of excessive physical force. She

was subjected to ordinary booking procedures, and was

released within an hour.

Il. The Proceedings Below.

On August 8, 1997, Petitioners commenced an action

against Respondents in the 98th Judicial District Court of

Travis County, Texas, alleging a multitude of constitutional

and State law claims. Respondents properly removed the

litigation to the United States District Court for the Western

District of Texas at Austin. ~

On February 13, 1998, the District Court granted

Respondent’s Summary Judgment Motion, wholly

dismissing Respondents’ claims. Petitioners filed Notice of

Appeal to the United States Court of Appeals for the Fifth

Circuit, and a three-judge panel issued their opinion on

January 29, 1999.

The Panel reversed summary judgment in favor of

Officer Turek and the City of Lago Vista on Petitioners’

Fourth Amendment unreasonable seizure claim, and

remanded that issue to District Court. The Panel upheld

summary judgment in favor of Respondents on all other

constitutional and state law claims. Summary judgment was

affirmed in favor of Police Chief Miller on all grounds.

The Fifth Circuit granted rehearing en banc, and vacated

the panel’s decision. After briefing and oral argument, ten

3

appellate justices held that Petitioner Atwater’s custodial

arrest did not violate her Fourth Amendment rights, and

affirmed the District Court’s summary judgment.

REASONS FOR DENYING WRIT

Petitioners ask this Court to grant a Writ of Certiorari in

order to determine if the Fourth Amendment limits the use

of custodial arrests for fine-only traffic offenses. However,

this question has already been resolved by the United States

Supreme Court. All custodial arrests, including those for

fine-only traffic offenses, must be reasonable. An arrest is

reasonable if the officer had probable cause to arrest.

It is undisputed that Officer Turek had probable cause

to arrest Petitioner Atwater. The arrest, therefore, complied

with the requirements of the Fourth Amendment. The holding

of the United States Court of Appeals for the Fifth Circuit

recognized and considered Fourth Amendment limits on

Petitioner Atwater’s arrest. Thus, the Fourth Amendment

question presented by Petitioners does not merit additional

review.

Petitioners argue that the arrest was unreasonable and

violated the Fourth Amendment. They demand additional

restrictions, beyond probable cause, to justify an arrest for a

fine-only traffic offense. Only in “extraordinary

circumstances” has the United States Supreme Court imposed

a heightened standard for reviewing an arrest. Those

circumstances are not present here. Further, the United States

Supreme Court, and the federal Courts of Appeals, have

rejected all attempts to create a probable cause “plus”

standard for ordinary arrests. The Fifth Circuit opinion is

consistent with all previous case law, and correctly states

4

the law. Petitioner Atwater’s custodial arrest complied with

the Fourth Amendment. As a result, the Petition for Writ of

Certiorari should be denied.

I. THE FOURTH AMENDMENT CONTROLS ALL

ARRESTS

The “Question Presented” in the Petition for Writ of

Certiorari controls the issue raised for review by the United

States Supreme Court. Petitioners ask this Court to determine

if custodial arrests are limited by the Fourth Amendment for

fine-only traffic offenses. There is no dispute that the Fourth

Amendment limits the use of custodial arrests for all offenses,

including fine-only traffic offenses.

The Constitution requires that all arrests be reasonable.

U.S. Const. Amendment IV. An arrest is reasonable if it is

made with probable cause. United States v. Robinson, 414

U.S. 218, 235 (1973); Michigan v. DeFillippo, 443 U.S. 31,

36 (1979).

The United States Court of Appeals for the Fifth Circuit

found that Petitioner Atwater’s arrest complied with the

Fourth Amendment limitations. The arrest was constitutional,

because it was made with probable cause. If the Court

answers Petitioners’ question in the affirmative, the Fifth

Circuit’s holding still stands. As a result, the question

presented by Petitioners does not merit United States

Supreme Court review.

5

II. FIFTH CIRCUIT OPINION IS CONSISTENT

WITH THIS COURT’S OPINIONS

The Fourth Amendment requires that all arrests be

reasonable. Petitioners argue that the Fifth Circuit erred by

failing to require more than probable cause in order to

determine the reasonableness of her arrest. The Fifth Circuit

required probabie cause for an ordinary arrest. This is

consistent with this Court’s requirements.

A. -~ Arrest is Reasonable if It is Made with Probable

ause.

In its history of evaluating arrests, the United States

Supreme Court has recognized that probable cause justifies

the arrest and ordinary processing of the suspected offender.

Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975).

Under this practical compromise, 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.

Id. The probable cause test accommodates an individual’s

right to liberty and the State’s duty to control crime. Brinegar

v. United States, 338 U.S. 160, 176 (1949); Gerstein, 420

U.S. at 112. Probable cause is the measure of a reasonable

arrest under ordinary circumstances.

6

Officer Turek had probable cause to believe that

Petitioner Atwater committed five criminal offenses.' She

failed to seatbelt herself, or her two young children. She

failed to carry with her proof of insurance or her driver’s

license. Her arrest was effected in a public place, with

probable cause, and without the use of excessive physical

force. She was subjected to ordinary booking procedures,

and was released within an hour. Petitioner Atwater pled

guilty to all of the seatbelt charges. The driver’s license and

insurance charges were dropped when she produced proof

of the documents.

Petitioners do not dispute the probable cause facts.

Probable cause authorized Officer Turek to arrest Petitioner

Atwater, and to temporarily detain her until she was taken

before a magistrate. Officer Turek did not violate Petitioner

Atwater’s Fourth Amendment rights. As a result, this Petition

should be denied.

B. Consideration of Additional Factors, Only Under

- Extraordinary Circumstances.

Petitioners argue that the Fifth Circuit erred in failing

to consider extra factors, other than probable cause, to

determine if the arrest was reasonable. This Court has already

rejected consideration of additional restrictions when

evaluating the reasonableness of the ordinary arrest. Whren

v. United States, 517 U.S. 806, 813 (1996) (refusing to take

into account the subjective intent of the officer or whether

1. Appellant violated Texas TRANSPORTATION CODE ANN.,

§§ 545.413(a), 545.413(b), 521.025, and 601.051, 601.053

and 601.191.

7

other officers would have made the arrest, in determining if

an arrest is reasonable).

There are only three “extraordinary” circumstances

where arrests made with probable cause required further

evaluation by this Court. See, id. at 818; Robinson, 414 U.S.

at 325. These “extraordinary” circumstances involve arrests

that are either: 1) made in a home; 2) involve excessive

physical force in effecting the arrest; or 3) go beyond ordinary

booking procedures to effect a physical invasion of the

arrestee’s bodily integrity. See, e.g., Welsh v. Wisconsin, 466

U.S. 740 (1984) (warrantless entry into home); Tennessee v.

Garner, 471 U.S. 1 (1985) (use of deadly force); Winston v.

Lee, 470 U.S. 753 (1985) (surgical removal of a bullet). It is

undisputed that these “extraordinary” circumstances do not

apply to the case at bar.

Consistent with this Court’s rulings, the Fifth Circuit

correctly decided that Petitioner Atwater’s arrest and short

detention did not violate her Fourth Amendment rights. As

a result, the Petition for Review should be denied.

C. Knowles v. Iowa does not conflict with the Fifth

Circuit opinion.

In 1999, this Court held that an officer may not perform

a full search of an automobile after the officer has issued the

driver a citation. Knowles v. Iowa, 525 U.S. 113 (1999).

Petitioner complains that the Fifth Circuit opinion

“eviscerates” the Knowles opinion. However, this laint

is unfounded. 2 Py

_ Towa state law authorized officers to either issue a

citation, or to take traffic offenders into custody. In Knowles,

the Iowa Supreme Court upheld the constitutionality of an

officer issuing a citation and still performing a custodial

arrest-type searches of the driver and automobile. Knowles,

569 N.W.2d 601 (Iowa 1997). The United States Supreme

Court reversed the lowa Supreme Court. It is unconstitutional

to perform a custodial arrest-type search if the driver is not

subjected to a custodial arrest. Knowles, 525 U.S. at 487-88.

Knowles is a search case, holding that police officers

must actually arrest the driver in order to perform a post-

arrest search. The Knowles Court neither addressed nor

attempted to restrict the authority of police officers to effect

the custodial arrest of traffic offenders. In the instant case,

the Fifth Circuit opinion does not address the same issues. It

does not conflict with the Knowles decision, or with any other

holding from this Court.

Ill. FIFTH CIRCUIT OPINION IS CONSISTENT

WITH OPINIONS OF STATE AND FEDERAL

COURTS

The United States Supreme Court never required more

than probable cause to establish the constitutionality of a

public arrest. Whren, 517 U.S. at 813. The precedent from

other federal and state courts is consistent with this approach.

Every Court addressing the question upheld the federal

constitutionality of public custodial arrests made with

probable cause and in compliance with state law. These

Courts refused to impose additional limitations on the right

to publicly arrest certain criminal offenders.

A. Consistency Among the Federal Courts of Appeal.

Federal Courts of Appeal uniformly reject all attempts

to require more than probable cause in determining whether

9

an ordinary arrest constitutes a civil rights violation. These

Courts declined to consider (a) how serious the offense or

punishment was;? (b) whether a citation could have been

issued in lieu of an arrest;’ (c) whether state law was complied

with;* (d) the subjective intent of the officer making the

arrest;> (¢) whether other officers would have made the

2. Ricci v. Arlington Heights, 116 F.3d 288, 290-91 (7* Cir.

1997), cert. dism'd, $23 U.S. 613 (1998); Fisher v. WMATA, 690

F.2d 1133, 1139 (4* Cir. 1982).

3. Moore v. Gwinnett County, 967 F.2d 1495 (11% Cir. 1992)

cert. den. 506 U.S. 1081 (1993); Higbee v. City of San Diego, 911

F.2d 377, 379 (9® Cir. 1990).

4. See Fields v. City of South Houston, 922 F.2d 1183 (5* Cir.

1991); Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1* Cir. 1997);

Pyles v. Raisor, 60 F.3d 1211, 1215 (6* Cir. 1995); Barry v. Fowler,

902 F.2d 770, 772-73 (9* Cir. 1990); Street v. Surdyka, 492 F.2d

368, 371-72 (4* Cir. 1974). In each of these cases, the court

concluded that probable cause justified the warrantless arrests,

despite the violation of state laws and early common law that

restricted the arrest of misdemeanor offenders to only offenses that

were committed in the officer’s presence.

Petitioner’s reliance on United States v. Mota (982 F.2d 1384

[9* Cir. 1993]}) for the contrary position is misplaced. In Mota, the

Court addresses the admissibility of evidence in a criminal trial.

The Court explicitly distinguished its holding from claims involving

civil rights (such as its holding in Barry v. Fowler, supra). Id. at

1387. In the context of a § 1983 claim, the Ninth Circuit does not

consider a violation of state law as relevant to determining if a civil

rights violation occurred. /d.

5. Holland v. City of Portland, 102 F.3d 6 (1* Cir. 1996);

United States v. Basey, 816 F.2d 980, 990-91 (5* Cir. 1987).

10

arrest;® or (f) if the arrest complied with usual police

department policies or practices.’

In each of these cases, probable cause alone was

sufficient to establish the reasonableness of the arrest. These

federal appellate opinions are consistent with the opinion

rendered by the Fifth Circuit in this matter. There is no

confusion among the federal courts that justifies Supreme

Court intervention.

B. Consistency Among the State Courts.

State courts have addressed a number of issues related

to the custodial arrest of traffic offenders. However, none of

these opinions control the question presented or argued by

the Petitioners. Petitioners fail to cite even one case, on the

federal or state level, holding that the United States

Constitution requires more than probable cause to effect the

public, state-authorized arrest of a misdemeanor offender.

As a result, Supreme Court intervention in this matter is not

necessary to resolve conflict or inconsistencies.

State courts uphold the custodial arrests of fine-only

misdemeanor offenders. See, e.g., [llinois v. Ramirez, 518

N.E.2d 638 (Ill. App. — 1* Dist. 1993). These courts consider

whether a violation of state law should effect the

6. Whren, 517 U.S. at 813-4; Moore v. Gwinnett County, 967

F.2d 1495, 1498 (11® Cir. 1992), cert. den., 506 U.S. 1081 (1993).

7. United States of America v. Trigg, 878 F.2d 1037, 1041

(7* Cir. 1989), cert. den., 502 U.S. 963 (1991).

11

constitutionality of the arrest*; and whether arrest for civil

infractions is authorized.’

For instance, the Washington Supreme Court found that

state public policy dictated that the custodial arrest of certain

misdemeanor offenders was inappropriate. Washington v.

Hehman, 578 P.2d 527, 529 (Wash. 1978). The Court

explicitly acknowledged that the United States Supreme

Court never required such a holding. It noted that states were

entitled to provide criminal defendants greater rights than

the minimum standard required by the Constitution. /d.

State court decisions reflect the diversity with which

various states establish and enforce their laws. It is uniquely

within these bodies’ power and authority to establish laws

and dictate the mode of their enforcement and punishment.

Contrary to Petitioners’ assertion, these opinions do not

reflect “confusion” in the lower courts about the

constitutional standard. Rather they reflect differing

approaches to enforcement of their state’s laws. The federal

constitutional standard for a public arrest that is made in

compliance with state law is not questioned by these Courts;

probable cause is enough.

8. See, e.g., Thomas v. State, 614 So.2d 468, 471 (Fla. 1993).

9. See, e.g., Barnett v. United States, 525 A.2d 197, 198-99

(D.C. 1987) (noting that the arrest would only be justified if

complainant committed a criminal infraction, as opposed to a

civil one).

12

IV. FIFTH CIRCUIT OPINION IS CONSISTENT

WITH EARLY AMERICAN JURISPRUDENCE

Petitioners claim that the common law dictates a

different result in this matter. Petitioners note that, in

England, common law provided that an officer only had

authority to arrest for misdemeanors that constituted a breach

of peace, and were committed in their presence. As noted by

the Fifth Circuit, Petitioners waived this claim, by failing to

raise it until this case was reheard by that Court en banc.

Morever, the Fifth Circuit’s holding is consistent with early

American jurisprudence authorizing arrests for all

misdemeanors committed in the officer’s presence.

A. Breach of Peace Claim was Waived.

It is a well-recognized appellate principle that issues or

questions that are not raised to the trial court, are not

considered in the reviewing court. See, e.g., Becker Steel

Co. v. Cummings, 296 U.S. 74, 82 (1935); Stealgald v. United

States, 451 U.S. 204, 208 (1981). Petitioners argue that the

Fifth Circuit erred by failed to consider that Petitioner

Atwater’s offenses did not constitute breaches of the peace.

Petitioners did not raise this common law argument in their

pleadings, Summary Judgment Response, or Motion for

Rehearing that was presented to the trial court. It was not

raised in the Appellate Brief, or in Reply to Appellee’s Brief.

It is first relied on by Petitioners in the Appellants’ Brief

filed before Fifth Circuit en banc consideration of this matter.

Petitioners want this Court to review a question on grounds

that the trial court was not given an opportunity to consider,

Petitioners waived their complaint.

13

B. Early American Jurisprudence is Consistent.

Common law does not dictate a different result in this

matter. Old English common law allowed officers to arrest

offenders committing misdemeanors if the offense

constituted a breach of the peace, and was committed in their

presence. However, the English and American legislatures

have modified this limitation for over one hundred years.

See, e.g., Burroughs v. Eastman, 59 N.W. 817, 818-820

(Mich. 1894), and cases cited therein. This 1894 court in

Burroughs cites numerous courts that already approved of

legislation authorizing police power to arrest on view for

offenses that did not necessarily constitute a breach of the

peace.

Moreover, this Old English arrest requirement is ignored

in previous Supreme Court decisions as a probable cause

standard for public arrests. See, e.g., Carroll v. United States, _

267 U.S. 132, 156-67 €1925); United States ¥. Watson, 473

U.S. 411, 418 (1976). In 1976, the United States Supreme

Court relied upon the proposed Model Code of Pre-

Arraignment Procedure. The Code permitted warrantless

arrests when misdemeanors were committed in the officer’s

presence, regardless of whether the offense constituted a

breach of the peace. § 120.1, Mopet Cope or Pre-

ARRAIGNMENT PROCEDURE. '°

Early Anferican jurisprudence has long accepted the

legislature’s power to modify the old English common law

law argument by failing to raise it in a timely manner. As a

resujt, the Fifth Circuit correctly sustained summary

judgment, and the Petition should be denied.

10. See also, 18 U.S.C.A. § 3052 (since 1951, giving F.B.1.

agents authority to arrest for any offense against the United States

committed in their presence).

14

CONCLUSION

Petitioner Atwater committed five violations of Texas

law. In accordance with his authority, Respondent/Officer

Turek arrested Petitioner Atwater, and briefly detained her

until she was released by a magistrate. The Fifth Circuit

correctly held that Petitioner Atwater’s Fourth Amendment

rights were not violated by this arrest.

Review on a writ of certiorari is a matter of this Court’s

judicial discretion. The Fourth Amendment question

presented does not reflect a vital question that justifies this

Court’s review. Obviously, the Fourth Amendments limits

the use of custodial arrests for fine-only traffic offenses, as

it does for all offenses. This Court has long recognized that

the existence of probable cause ensures that the State’s

interest in effecting the arrest is balanced by the individual’s

right of liberty. The Fifth Circuit’s opinion is consistent with

this Court’s holdings regarding the same.

Moreover, the Fifth Circuit opinion does not conflict

with the decisions of other United States Courts of Appeals,

or that of the state courts. In fact, Petitioners fail to cite even

one Court that required more than probable cause to

determine the constitutionality of an ordinary, public arrest

of a misdemeanor offender. Further, early American

jurisprudence has long recognized that the common law

breach of peace requirement could be abrogated by legislative

action.

An officer’s right to arrest when there is probable cause

is clearly established by this Court, and the lower courts.

The Fifth Circuit opinion is consistent with these decisions,

and the Question Presented does not merit further review.

As a result, the Petition for Writ of Certiorari should

be denied.

15

Respectfully submitted,

WituiaM W. Kruecer, III

Counsel of Record

JOANNA R. LipPMAN

FLETCHER & SPRINGER

Attorneys for Respondents

823 Congress Avenue

Suite 510

Austin Texas 78701

(512) 476-5300