# Opposition Brief — Atwater v. Lago Vista

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 318

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A03. Public record. Not legal advice.