# Petitioners Brief — Atwater v. Lago Vista

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A08

## Record

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

## Text

cr ° o
oOupreme Court. ij.s v4

) FILED

No. 99-1408 SEP 1 2009

In The CLERK |

a

—— ..

SJ

GAIL ATWATER, AND MICHAEL HAAS AS NEXT
FRIEND OF ANYA SAVANNAH HAAS AND
MACKINLEY XAVIER HAAS,

Petitioners,

CITY OF LAGO VISTA, BART TUREK,
AND FRANK MILLER, |

Respondents.

S

On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit

¢

BRIEF OF PETITIONERS
S

PaMELA McGraw Rosert C. DeCarui*
Attorney at Law Desra IRWIN
P.O. Box 202165 Law Orrices or DeCaru &
Austin, Texas 78720 IRWIN
(512) 257-3688 12034 Research Blvd.,
Micnaet F. Sturey Suite 6

: Austin, Texas 78759

727 East Dean Keaton St.
Austin, Texas 78705
(512) 232-1350

(512) 258-9299

Counsel for Petitioners
"Counsel of Record

OOOO OOOOOOeee_e__________—V—X——oOaaqaaae—e—e—=E—eaws——

f~1"r

QUESTION PRESENTED

Petitioner Gail Atwater was placed under custodial
arrest for not wearing a seat belt, a misdemeanor that carries a
fifty-dollar fine as its maximum penalty. Does the Fourth
Amendment limit the use of custodial arrests for fine-only
traffic offenses?

TABLE OF CONTENTS

SCNT CUMSUEEED oc ctcccccccccccessscceess i
TCT TT ERT TTT TT CT TTT Te il
BREE Se AFURMEUUEED 0 ccc ccccccccccesevcece vi
ES ob 605s 5640445 0505006500040 l
i) ta cieineckdetuaa setae skies sdeve wes l
CONSTITUTIONAL AND

DEAT ERS POPU MIMI occ c ccc ccccccecececes l
STATEMENT OF THECASE ........ ee ae 2
GR ee ee rere ee ee re 2
Ee. EMO PORCCREINGS BGIOW 2. ccccccccscccccces 5
SUMMARY OF THE ARGUMENT ................. 6
Oe ee 7

I. Both the History Leading to the Fourth Amendment's
Adoption and Founding-Era Rules Governing Warrantless
Arrests Make Clear that the Custodial Arrest Here Was
Gia bs bude 564K 0-40 06.506 0060 0s 7

A. The Fourth Amendment Was Adopted to Check
Unfettered Discretion of the Sort Given by General
Warrants and Writs of Assistance to Conduct
Searches and Seizures Arbitrarily ............ 8

lee a a a A A a fae 2209S 42° eee —_

Il.

1. John Wilkes and the rejection of general
warrants in England .....,...........45. 9

2. Challenges to writs of assistance in colonial
DT cekdgcegesceescecenccenecees 10

3. The Fourth Amendment repudiated unfettered
search and seizure discretion ............ 12

B. Warrantless Arrests Could Only be Made for
Felonies and Breaches of the Peace Committed in
the Presence of the Arresting Official ........ 13

C. Because Officer Turek’s Arrest of Gail Atwater
Would Have Been Unlawful When the Fourth
Amendment Was Adopted, the Arrest Was
eo. 6 ie accu ce ugbeneeen és 19

D. The Decision Below Is Contrary to the Fourth
Amendment Because It Grants Law Enforcement
Unfettered Discretion to Search and Arrest of the
Sort the Fourth Amendment Was Meant to End 20

Balancing the Competing Interests of Law Enforcement
and the Individual Demonstrates that the Custodial Arrest
of Ms. Atwater for Non-Usage of Seat Belts Was
Constitutionally Unreasonable ................ wae

A. The Nature and Quality of the Intrusion on Gail
Atwater’s Liberty Interests Was Substantial ... 24

1. Custodial arrests as a general matter are
significant governmental intrusions ...... 24

-lii-

2. The custodial arrest of Gail Atwater was
particularly invasive and extreme ........ 28

The Government’s Interest in Enforcing the Seat
Belt Law Does Not Justify the Intrusion Here . 30

1. The governmental interest in enforcing the seat
belt law is relatively slight.............. 31

2. The custodial arrest furthered no legitimate law
enforcement objective that could not also have
been accomplished by issuing a citation ... 32

3. No special circumstances were present in this
case to make a custodial arrest necessary or
re 33

III. The Court Below Erred by Creating a Broad Per Se Rule
that Probable Cause Without More Justifies Any Custodial

Arrest, Regardless of the Offense ................ 36
A. The Court of Appeals’ Reliance on Whren v. United
SED TED eucevincocescodecacs 36
B. United States v. Watson Upheld Only Warrantless
Felony Arrests, and its Analysis Supports
PU DUNE neccavesccandduiccucs 40
C. The Decision Below Abrogates the Automobile
Exception by Permitting Warrantless Vehicular
Searches Without Probable Cause that a Vehicle
PT 41
D. The Court of Appeals’ Ruling Undermines this

Court’s Decision in Knowles v. lowa ........ 43

-iv-

---—

— eee

IV. This Case Lends Itself to Articulating More Clearly the
Permissible Boundaries of When a Custodial Arrest May
Be Used for Fine-Only Traffic Offenses ..........

V. CONCLUSION

eeeemeeeeeeeeeeeeeeeeeeeeeeeeees

45

TABLE OF AUTHORITIES

Page

Cases
Almeida-Sanchez v. United States,

EC TT TS 43
Atwater v. City of Lago Vista,

165 F.3d 380 (Sth Cir. 1999) .............. 19,30
Atwater v. City of Lago Vista,

195 F.3d 242 (Sth Cir. 1999) (en bans) ..... passim
Baltimore & O. R. Co. v. Cain,

ee SY rrr 4]

Beckwith v. Philby,
6 Barn. & Cress. 635,
108 Eng. Rep. 585 (K.B.1827) ............... 40

_ Berkemer v. McCarty, '
~ .°468 US. 420 (1984) 2.5 ot ng... 25,28,46,48

Boyd v. United States,

Es cb cdeeccesennecécsseseses 8
Bridgestone/Firestone, Inc. v. Glyn-Jones,

S76 S.W.246 132 (Tem. 1996) 2... ccccccccccces 31
California v. Carney,

Se Ds okecenccesetuceuasas 24,42
California v. Hodari D..,

A RT eer TT 20

-Vi-

es ieee

~O.e). ..28!_ a

Camara v. Municipal Court,

Ps. cccdeheuteuneeseesuass 12
Carroll v. United States,

Be Gs SEGUE oc ccccdscccese 13,15,18,42-43
City of Chicago v. Morales, _

ee erer 15-16

Colorado v. Bertine,
Ss dc dstdcatadeénenticbes 28

Commonwealth v. Carey,
66 Mass. (12 Cush.) 246 (1853)............... 17

County of Riverside v. McLaughlin,
Pe SE cc cccccasecedsccoses 20,27,45

Davis v. United States,
Ps. dccengchaceeenacoutets 13

Delaware v. Prouse,
440 U.S. 648 (1979) .............. 12,23,30,38,49

Dickerson v. United States,
530U.S.__, slip op. (June 26, 2000).......... 19

Edmond v. Goldsmith,
* 183 F.3d 659 (7th Cir. 1999),

cert. granted, No. 99-1030 (Feb. 22, 2000) ...... 48
Florida v. Bostick,
Dc Gkckaveeduaesteeeseuns 26

Florida v. Royer,

GGOUD. G4 EIGER) 2 occ ccccccvccscccsccees 26
Graham v. Connor,

GED TEE, FREI cc cccccacccccccesccccses 26
Henry v. United States,

fi) & ]. err rerie ree 8,24
Holley v. Mix,

3 Wend. 350 (N.Y. Sup. Ct.1829) ............. 40

Huckle v. Money,
2 Wils. K.B. 205, 95 Eng. Rep. 768 (K.B. 1763) .. 9

Hudson v. Palmer,
Ss BET ED oc ced eccesesecsesecénces 27

Illinois v. Lafayette,
— fit & || BPP Ererererereririreee ee 34

Johnson v. State,
PG GPG co cccesesesdccosesaséeses 41

Knowles v. lowa,
525 U.S. 113 (1998) ......... 24,**,33,34,43-44,45

Kurtz v. Moffitt,
BU Cs GT GED o cccccdeccéesevesdcecuss 40

Leach v. Money,
19 Howell St. Tr. 1001,
97 Eng. Rep. 1075 (K.B. 1765) ............... 10

-Viii-

Maryland v. Wilson,

re 23,25,47
McDonald v. United States,

Ee ee eee 31
Michigan v. Long,

a 48
New York v. Belton,

SP EE ovdcccesevsteocecees 28,42
New York v. Class,

ee oo och cance cteaveases 30,47
Ohio v. Robinette,

ee betes ceccbioee 45,48
Ornelas v. United States,

eS he ie at 39
Payton v. New York,

ED . The other two categories of inferior offenses were
“Deceipts and Conzenage,” and “Nusances.” Matthew Hale, Pleas
of the Crown 134 (2d ed. 1678).

-14-

— SEV Sa

repeated in legal treatises,‘ legal dictionaries,’ and the
handbooks used by the officials required to apply the rule.®

The authority to arrest without a warrant for breaches of
the peace was based on the nature of the offenses, i.e., that they
were violent public disturbances or threats thereof. As Chief
Justice Taft explained for the Court in Carroll v. United States,
the purpose of arresting for breaches of the peace was not to
enable apprehension of criminals (the basis for warrantless
felony arrests), but to bring an end to the breach of the peace.
Carroll, 267 U.S. at 157; see also Francis H. Bohlen & Henry
Shulman, Arrest With and Without a Warrant, 75 U. Pa. L.
Rev. 485, 490 (1927); see generally City of Chicago v.

* See, e.g., Matthew Hale, Pleas of the Crown 92 (2d ed.
1678); 2 William Hawkins, A Treatise of the Pleas of the Crown 75,
77 (1721); 4 William Blackstone, Commentaries on the Laws of
England 289 (1769).

* “None shall be arrested for Debt, Trespass &c. or other
Cause of Action, but Virtue of a Precept or Commandment out of
some Court: But for Treason, Felony, or Breach of the Peace, any
Man may arrest without Warrant or Precept.” Giles Jacob, A New-
Law Dictionary (7th ed. 1756) (definition of “arrest”); see also J.
Johnson, Les Termes de la Ley 38 (ist Am. ed. 1812) (same
definition for “arrest’”’).

® See, e.g., The Conductor Generalis 25 (Hugh Gaine ed.,
New York 1788) (limiting a constable’s warrantless arrest power to
felons and for a “breaker of the peace in his view”); Francois-Xavier
Martin, The Office and Authority of a Justice of the Peace, and of
Sheriffs, Coroners, &c. According to the Laws of the State of North-
Carolina 45 (1791) (“In all criminal cases, where any one is in
danger of life, or member, any private man may arrest another,
without process or warrant . . . .”) (emphasis added); Eliphalet Ladd,
Burn’s Abridgment, or the American Justice 40-41 (1792).

-15-

Morales, 527 U.S. 41, 106-08 (1999) (Thomas, J., dissenting)
(describing police officers’ common-law “responsibility for
preserving the peace”).

For other misdemeanors that did not involve public
disturbances or actual or threatened violence, there was no need
for an exception to the warrant requirement. In fact, one of the
bases for distinguishing misdemeanors from felonies at
common law was that, unlike a felony, an arrest could not be
made for a misdemeanor without a warrant unless it was an
ongoing breach of the peace. See 9 Encyclopaedia of the Laws
of England 268 (2d ed. 1908) (defining “misdemeanor”’).
Immediate arrests were not seen as necessary for
misdemeanors. For this reason, a summons was used to initiate
the criminal process for a misdemeanor charge, unlike a felony
charge, which began with the issuance of an arrest warrant.’

In other contexts, “breach of the peace” had a broader
meaning that encompassed any violation of the criminal law,

” James Wilson, a signatory of both the Declaration of
Independence and the Constitution, and also an early member of this
Court, recognized this distinction:

On an indictment for any crime under the degree of
treason or felony, the process proper to be first
awarded, at the common law, is a venire facias,
which, from the very name of it, is only in the nature
of a summons to require the appearance of the party.
... Onan indictment for felony or treason, a capias is
always the first process.

2 Works of James Wilson 689-90 (Robert G. McCloskey, ed. 1967).
Wilson noted that it was “now the usual practice” in England to issue
a capias even for misdemeanors, but he indicated no similar change
in this country. /d. at 690.

-16-

synonymous with the phrase “breach of the king’s peace,”* but
the phrase was used in its narrow sense when describing the
power to arrest. See 11 Encyclopaedia of the Laws of England
3 (2d ed. 1908). In fact, founding-era dictionaries distinguished
the term “peace,” which was associated with the powers of
justices of the peace to prevent public disturbances, from the
phrase “peace of the king.” See, e.g., T. Cunningham, A New
and Complete Law-Dictionary (1783 ed.) (definitions of
“Peace” and “Peace of the King”); 5 Giles Jacob, The Law-
Dictionary 112-13 (Am. ed. 1811) (entries for “Peace” and
“Peace of the King”). The distinction continued to be
recognized during the eighteenth century. Compare | John
Bouvier, A Law Dictionary 190 (11th ed. 1865) (defining
“breach of the peace”), with 2 John Bouvier, A Law Dictionary
322 (11th ed. 1865) (defining “pax regis” and “peace”’).

Following the Fourth Amendment’s ratification, the
common law rule was well-settled for roughly the first one
hundred years of the Republic. Through most of the nineteenth
century, courts continued to hold that a warrantless
misdemeanor arrest was unlawful when not a breach of the —
peace.’ Nineteenth-century American legal commentators were

* The phrase was used in this broader sense when it appeared
on a criminal indictment.

* See, e.g., Pow v. Beckner, 3 Ind. 475, 478 (1852) (“To
justify a constable in apprehending without process for an affray, the
affray must take place in his view and be still continuing. After it is
over he has no more power to arrest the offenders than any other
person.”); Commonwealth v. Carey, 66 Mass. (12 Cush.) 246, 250
(1853) (“{E]ven if he were a constable, he had no power to arrest for
any misdemeanor without a warrant, except to stay a breach of the
peace, or to prevent the commission of such an offense); Robison v.
Miner, 68 Mich. 549, 556-59, 37 N.W. 21, 25 (1888) (holding

-17-

no different, and in fact, some stated the rule as prohibiti
prohibiting ail
warrantless misdemeanor arrests. William L. Murfee, A
Treatise on the Law of Sheriffs and Other Ministerial Officers
§ 1 161, at 629-30 (1884). Other treatises limited warrantless
misdemeanor arrests to offenses involving public violence. '°

By the early twentieth century, courts had begun to
ignore the breach-of-the-peace requirement,'' and legislation in
many states permitted warrantless arrests for any misdemeanor
committed in an officer’s presence. See T.W. Hughes, A
Treatise on Criminal Law and Procedure § 876, at 597 ( 1919).
Obviously, these alterations to the common law a century or
more after the Fourth Amendment’s adoption provide no
insight into the understanding of the Amendment when it was

Moreover, these changes to the common law rule were
made by state courts and legislatures before this Court held the
Fourth Amendment applied to the states. See Wolf v. Colorado
338 US. 25, 27-28 (1949). They therefore do not constitute
legislative opinions on their constitutionality. Because the
Fourth Amendment did not apply to the states, state legislatures
would not have been concerned whether their legislation met

unconstitutional the portion of a liquor law that deemed its violations
to be breaches of the peace and permitted warrantless arrests); see
also Bohlen & Shulman, supra, at 486 & n.3 (citing cases).

© See also 1 Joseph Chitty, A Practical Treatis
. , e on the
Criminal Law 15 (1st Am. ed. 1819); John G. Crocker, The Duties of
Sheriffs, Coroners and Constables § 48, at 33 (2d ed. 1871).

'' Contemporary commentators perceived those courts
. . . . . . to be
misreading this Court’s decision in Carroll v. United States, 267 U.S.
137 (1925). See Bohlen & Shulman, supra, at 487-883.

-18-

Fourth Amendment standards. Moreover, to hold that post-
Fourth-Amendment-adoption alterations to the common law by
states are relevant when made before the Fourth Amendment
applied to the states would permit state legislatures to
preemptively nullify federal constitutional rights before they
applied to them. Cf. Dickerson v. United States, 530 U.S. __.,
slip op. at 1 (June 26, 2000) (rejecting the argument that an Act
of Congress vitiated Miranda because “a constitutional decision
_ may not be in effect overruled by an Act of Congress”).

on Because Officer Turek’s Arrest of Gail
Atwater Would Have Been Unlawful When
the Fourth Amendment Was Adopted, the
Arrest Was Unconstitutional

Gail Atwater was not breaching the peace when she and
her children rode in her truck at fifteen-miles-per-hour
unrestrained by seat belts. Though there may be traffic offenses
that qualify as breaches of the peace, this is not one of them.

Non-use of seat belts is not, by any stretch of the
imagination, a public disturbance or an act likely to incite
violence in others. It is not even a public offense. Unlike many
traffic offenses, violations of the Texas seat-belt law have
virtually no impact on other drivers. As the three-judge panel
of the Fifth Circuit astutely observed, the seat-belt law is one of
several “paternalistic statutes” that Texas and many states have
adopted “to protect a specific individual from his own conduct,
conduct which poses no threat to the public at large.” Atwater
v. City of Lago Vista, 165 F.3d 380, 385 (Sth Cir. 1999) (panel),
Pet. App. B at 37a. It is difficult — if not impossible — to
conceive of a traffic violation that is further from a breach of
peace than the seat-belt law.

Furthermore, the common law justification for
warrantless breach-of-the-peace arrests is wholly absent in this
case. There is no indication that a custodial arrest was
necessary to prevent the offense from continuing. In fact, the
record indicates the opposite. Ms. Atwater told her children

that the policeman was right, and they had broken the law by
not wearing their seat belts. (R. 384).

; At a minimum, the Fourth Amendment prohibits
seizures that were unlawful at the time of the Amendment’s
adoption. Wyoming v. Houghton, 526 U.S. 295, 299 (1999);
see also County of Riverside v. McLauglin, 500 U.S. 44, 60-61
(1991) (Scalia, J., dissenting) (citing California v. Hodari D.,
499 U.S. 621 (1991)). Because the arrest of Gail Atwater
would not have been permitted by founding-era common-law
rules, her arrest violated the Fourth Amendment.

D. The Decision Below Is Contrary to the
Fourth Amendment Because It Grants Law
Enforcement Unfettered Discretion to Search
and Arrest of the Sort the Fourth
Amendment Was Meant to End

The court below not only ignores the nature of the
offense for which Ms. Atwater was arrested, but also leaves to
the complete discretion of every police officer whether to use
custodial arrests for any traffic violation. The Fifth Circuit
thereby gives law enforcement the very sort of broad discretion

to commit arbitrary searches and seizures that the Fourth
Amendment sought to end.

/ Because of the immense number of traffic laws, it is
virtually impossible for any person to drive for any significant
distance without committing some infraction. See, e.g., Salken,
supra, at 223. Violations of traffic laws are numerous. 1993

-20-

A Se EK Ren. -

Department of Transportation statistics indicated that 50% of
all vehicles at any time were violating the then-maximum speed
limit of 55 miles per hour, with 71% of the vehicles speeding
on urban interstates, and 80% on rural interstates. See U.S.
Dep’t of Transportation, National Maximum Speed Limit --
Fiscal Year 1993: Travel Speeds, Enforcement Efforts, and
Speed-Related Highway Safety Statistics tbls. 1 & 3 (Oct.
1995). More recently, seven out of ten drivers admitted in an
official survey that they had run a red light at least once in the
past year. See 2 U.S. Dept. of Transportation, National
Highway Traffic Safety Administration, National Survey of
Speeding and Other Unsafe Driving Actions 119 (1998) (report
no. DOT HS 808 749). Violations of seat belt laws are also
fairly common. At any given time, almost one-third of vehicle
occupants are not using their seat belts. 2 U.S. Dept. of
Transportation, National Highway Traffic Safety
Administration, 1998 Motor Vehicle Occupant Safety Survey
20 (2000) (report no. DOT HS 809 051).

An observant police officer can come up with a traffic
violation for almost any vehicle. See, e.g., United States v.
Smith, 80 F.3d 215, 219 (7th Cir. 1996) (condoning a traffic
stop based on the officer’s belief that an air freshener hanging
from the rear view mirror of a car amounted to a material
obstruction between the driver and the windshield in violation
of Illinois law). This means police officers are left to choose
which laws to enforce, and against which drivers to enforce
them:

[G]iven the pervasiveness of such minor [traffic]
offenses and the ease with which law enforcement
agents may uncover them in the conduct of virtually
everyone, [probable cause for a traffic violation]
hardly matters, for here as well there exists ‘a power.
that places the liberty of every man in the hands of

-2)}-

every petty officer,’ precisely the kind of arbitrary
authority which gave rise to the Fourth Amendment.

1 Wayne R. LaFave, Search and Seizure, § 1.4(e), at 123 (3d

ed. 1996) (quoting 2 Legal Papers of John Adams 141-42 (L.
Kinvin Wroth & Hiller B. Zobel eds., 1965)).

Petitioners do not challenge police discretion to
selectively make stops for traffic violations they observe. State
legislatures have determined that various traffic laws help
insure safer roads and highways, and police should enforce
those laws by making traffic stops and issuing citations for their
violation. See Whren v. United States, 517 U.S. 806, 818
(1996) (“[W]e are aware of no principle 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 measure of the lawfulness of enforcement.”). Giving
police the discretion to choose which violations to enforce and
choosing which vehicles to stop is an acceptable concession to
permit enforcement of these laws, even though that means
traffic stops may be made for pine tree air fresheners hanging
from vehicle windshields. But there is no reason to grant a
similar degree of discretion to handcuff and take people to jail
for those same minor violations.

Those who insisted on a bill of rights with a provision
prohibiting unreasonable searches and seizures likely would be
amazed at the freedom and lifestyle enabled by motor vehicles.
They also would be shocked that regulation of these motor
vehicles is used as an excuse to grant law enforcement almost
unlimited discretion to search and seize. Such discretion may
be acceptable to permit enforcement by issuance of traffic
citations, but not when the discretion includes whether or not to
place a person under custodial arrest.

-22-

The decision below ignored the common law altogether
and turned the historical basis of the Fourth Amendment on its
head. Granted, many things have changed since 1791.
Organized police forces were unknown in colonial times, as
were motor vehicles. Furthermore, many state courts and
legislatures abandoned the breach-of-the-peace requirement
during the 20th century, thereby lessening the protections
afforded by the common law. Still, the evils for which the
Fourth Amendment was adopted and the protections afforded
by the common law should not be ignored. Balancing the
competing interests shows there is no reason for doing so here.

Il. Balancing the Competing Interests of Law
_ Enforcement and the Individual Demonstrates that
the Custodial Arrest of Ms. Atwater for Non-Usage

of Seat Belts Was Constitutionally Unreasonable

The Fourth Amendment’s over-arching command is that
all searches and seizures must be reasonable. “The touchstone
of our analysis under the Fourth Amendment is always ‘the
reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security.’”
Maryland v. Wilson, 519 U.S. 408, 411 (1997) (quoting
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (quoting
Terry v. Ohio, 392 U.S. 1, 19 (1968))). The Fourth
Amendment reasonableness of a seizure is determined by
balancing the competing interests of the government and the
individual. “To determine the constitutionality of a seizure,
‘fw]e must balance the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting
United States v. Place, 462 U.S. 696, 703 (1983); citing
Delaware v. Prouse, 440 U.S. 648, 654 (1979); United States
v. Martinez-Fuerte, 428 U.S. 543, 555 (1976)).

-23-

For Gail Atwater, the seizure and subsequent searches
to which she was subjected were an extreme intrusion and
disruption of her life and the life of her children. No legitimate
law enforcement objective or governmental interest was
furthered in any way by this conduct.

A. The Nature and Quality of the Intrusion on
Gail Atwater’s Liberty Interests Was
Substantial

Gail Atwater was subjected to a custodial arrest. A
custodial arrest in any circumstance is a_ substantial
governmental intrusion, particularly for the average law-
abiding citizen. The circumstances of this case — a mother
handcuffed and taken to jail in front of her two young children
— make the custodial arrest here particularly egregious.

1. Custodial arrests as a general matter
are significant governmental
intrusions

A custodial arrest of a person is the quintessential
seizure. See California v. Hodari D., 499 U.S. 621, 624 (1991)
(citing Henry v. United States, 361 U.S. 98, 100 (1959)). The
Fourth Amendment therefore requires that it be reasonable. See
Payton v. New York, 445 U.S. 573, 585 (1980). This Court has
used the term “custodial arrest” to describe seizures where the
person is not just detained, but taken into custody and
transported to the police station. E.g., Knowles v. lowa, 525
U.S. 113, 117 (1998); United States v. Robinson, 414 U.S. 227,
234-35 (1973).

A custodial arrest is a particularly significant

governmental intrusion on an individual’s liberty interest. The
degree of the intrusion an arrest involves is readily apparent

-24-

when compared with a routine traffic stop. A traffic stop “is a
relatively brief encounter and ‘is more analogous to a so-called
“Terry stop” ... than to a formal arrest.” Knowles v. lowa,
§25 U.S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468
U.S. 420, 439 (1984)). The typical traffic stop, although a
Fourth Amendment seizure, often is no more than an
inconvenience, in which the motorist “will be obliged to spend
a short period of time answering questions and waiting while
the officer checks his license and registration, ... may then be
given a citation, but [expects] that in the end he most likely will
be allowed to continue on his way.” Berkemer, 468 U.S. at
437; but see Maryland v. Wilson, 519 U.S. 408, 422 (1997)
(Kennedy, J., dissenting) (“Traffic stops, even for minor
violations, can take upwards of 30 minutes.”). Unlike a
custodial arrest, a traffic stop is not a complete suspension of an
individual’s freedom. The person remains in or near his or her
car, which is a less threatening and more familiar setting than
a police station house or a jail cell.

A custodial arrest is likewise far more intrusive than
most searches, especially a vehicle search or a Terry frisk. An
arrest is “a wholly different kind of intrusion upon individual
freedom from a limited search for weapons.” Terry v. Ohio,
392 U.S. 1, 26 (1968). As Justice Powell observed:

A search may cause only annoyance and temporary
inconvenience to the law-abiding citizen, assuming
more serious dimension only when it turns up
evidence of criminality. An arrest, however, is a
serious personal intrusion regardless of whether the
person seized is guilty or innocent. Although an
arrestee cannot be held for a significant period
without some neutral determination that there are
grounds to do so, no decision that he should go free

-25-

can come quickly enough to erase the invasion of his
privacy that already will have occurred.

United States v. Watson, 423 U.S. 411, 428 (1976) (Powell, J.,
concurring) (citations omitted) (emphasis added). The
custodial arrest, not the search incident to the arrest, “is the
significant intrusion of state power into the privacy of one’s
person.” United States v. Robinson, 414 U.S. 218, 237 (1973)
(Powell, J. concurring).

The significance of custodial arrests is sometimes
overlooked because the focus often is on the search rather than
the arrest. This is usually the case when the Fourth
Amendment challenge is raised with the hope of triggering
application of the exclusionary rule. For the criminal seeking
to exclude otherwise admissible evidence, the search most
surely is the utmost concern. But the perspective of the average
citizen is the focus of Fourth Amendment balancing, not the
perspective of the career criminal. See Florida v. Bostick, 501
U.S. 429, 438 (1991) (“the ‘reasonable person’ test presupposes
an innocent person”) (citing Florida v. Royer, 460 U.S. 491,
519 n.4 (1983) (Blackmun, J., dissenting)). For the average
citizen, who is always subject to a possible traffic stop for a
myriad of reasons, a search is an annoyance. A custodial arrest

is a nightmare.

A custodial arrest typically entails physical restraint at
the outset. See Graham v. Connor, 490 U.S. 386, 396 (1989)
(recognizing that “the right to make an arrest .. . necessarily
carries with it the right to use some degree of physical
coercion”). At a minimum, this restraint usually comes in the
form of handcuffing, followed by physically placing the
individual in the back of a locked police car for transportation
to the booking station.

Once at the booking station, the arrestee is subjected to
the booking process, usually including fingerprinting and a
“mug shot.” Valuables are taken away, and the person Is placed
in a jail cell. As an incident to the arrest, the arrestee is almost
always subjected to a search of his or her person, and may be
subjected to more extreme invasions, such as body cavity
searches. An arrestee may be detained for as long as 48 hours
before a probable cause determination is made by a magistrate.
See County of Riverside v. McLaughlin, 500 U.S. 44, 56-57
(1991). If unable to post the bond set by the magistrate," the
arrestee will languish in jail until a scheduled court date.

Significantly, pre-trial detention often places multiple
detainees in a single holding cell, thus mingling traffic violators
with persons arrested for much more serious offenses who pose
a risk of physical harm to the traffic-offense arrestee. Most, if
not all, liberty interests and expectations of privacy are lost as
an incident to pre-trial detention. “The fact of arrest and
incarceration abates all legitimate Fourth Amendment privacy
and possessory interests in personal effects, and therefore all
searches and seizures of the contents of an inmate’s cell are
reasonable.” Hudson v. Palmer, 468 U.S. 517, 538 (1984)
(O’Connor, J., concurring) (citations omitted).

The harm from a custodial arrest lingers long after the
detention ends. See, e.g., Terry v. Ohio, 392 U.S. 1, 26 (1968)
(observing that a custodial arrest “is inevitably accompanied by
future interference with the individual’s freedom of movement,
whether or not trial or conviction ultimately follows.”). The
record of the arrest may linger even when there ultimately is an
acquittal, and even if no charges are ever brought against the

'2 Ms. Atwater was required to post a $310 bond to get out
of jail for a $50 offense. (R. 424).

-27-

arrestee. Further, arrest records are easily accessible by the
public, and may close the door on a broad array of employment
opportunities. See William A. Schroeder, Warrantless
Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L.
Rev. 771, 797 (1993); Salken, supra, at 264. In fact, Texas tort
law discourages employers from hiring persons with arrest
records. See Read v. Scott Fetzer Co., 990 S.W.2d 732, 734
(Tex. 1998).

An arrest following a traffic stop is an even greater
governmental intrusion. An arrest for a traffic violation comes
as a particularly great shock to a driver, whose expectation is
that, at most, it will end with a traffic citation. See Berkemer,
468 U.S. at 437. Also, the arrest is commonly a public
spectacle, made on the side of a public road in full view of all
passers by.

The searches that may accompany the arrest also are
more intrusive when a custodial arrest follows a traffic stop.
The search incident to arrest encompasses not just the person of
the arrestee, but also the vehicle the arrestee had occupied. See
New York v. Belton, 453 U.S. 454, 460-61 (1981). The vehicle
is frequently impounded, and reacquisition requires payment of
impoundment fees — regardless of whether a criminal charge
follows the arrest. The vehicle then may be subjected to a more
thorough search in which the vehicle’s contents are inventoried.
See Colorado v. Bertine, 479 U.S. 367 (1986).

2. The custodial arrest of Gail Atwater
was particularly invasive and extreme

The arrest of Gail Atwater had all the characteristics of
a full custodial arrest. Furthermore, the arrest was exacerbated
by a police officer’s humiliating a mother in front of her two
young children.

-28-

Ms. Atwater was subjected to a full-fledged custodial
arrest. Officer Turek handcuffed Ms. Atwater’s hands behind
her back, loaded her into a police squad car, and then
transported her to the police station. Once at the police station,
Gail Atwater was forced to remove her shoes and glasses, and
empty her pockets, then a “mug shot” was taken. (R. 386-88;
706). She was then placed in a cold jail cell for approximately
one hour before being taken to a magistrate. Meanwhile, her
vehicle was towed to an impound lot in another city and its
interior searched and inventoried.'? She then had to pay an
additional $110 to get it back. (R. 400).

This arrest was particularly egregious because of the
presence of Ms. Atwater’s children. The arrest began with
Officer Turek yelling at her, which subsequently included
accusations — in front of her children — that she was a bad
mother and did not care about her children. (R. at 384-85, 388-
89, 704-05). He also implied Ms. Atwater was a liar, again in
front of her children. Officer Turek’s behavior is all the more
distasteful — and detrimental to Ms. Atwater’s children —
when it came immediately after she had explained to her
children that they were “wrong” for not wearing their seat belts
and the police officer was just “doing his job.” (R. 384). Ms.
Atwater’s four-year-old son and six-year-old daughter received
a traumatic lesson on what this police officer thought his job
entailed.

After hearing their mother vilified by a man with a gun,
the children then watched him handcuff their mother and take

'? The inventory revealed the following: two tricycles, one
bicycle, one igloo cooler, two pairs of children’s shoes, toys, food,
and a bag of Kingsford charcoal. (R. 426).

-29-

her away.'* And what was to become of Gail Atwater’s two
young children when she was taken to jail? Ms. Atwater
begged Officer Turek to permit her to bring her children to a
friend’s home a few houses away, but he refused. (R. 384,
704). Initially, he planned to take the children into custody as
well. (R. 427). Luckily, a family friend arrived, and Officer
Turek permitted her to take the children. (R. 386).

The governmental intrusion here was undoubtedly
substantial. Ms. Atwater was subjected to a full custodial arrest
which her young children were forced to witness.

B. The Government’s Interest in Enforcing the
Seat Belt Law Does Not Justify the Intrusion
Here

Petitioners recognize that as a general matter,
government has a “‘vital interest’ in highway safety and the
various programs that contribute to that interest.” New York v.
Class, 475 U.S. 106, 112 (1986) (citing Delaware v. Prouse,
440 U.S. 648, 658 (1979)). Seat belt laws, however, are readily
distinguishable from most laws that further highway safety:
they are “designed to protect a specific individual from his own
conduct, conduct which poses no threat to the public at large.”
165 F.3d 380, 385, Cert. Pet. App. B at 37a. The remaining
issue is whether the governmental interest in enforcing the seat
belt laws was furthered in any conceivable way by the
handcuffing and arrest of Gail Atwater in front of her children.
It was not.

'* This was particularly harmful to the children because they
blame themselves for their mother’s arrest: they had lost a toy, and
were out of their seat belts so they could look out the windows to try
to find it. (R. 380, 396).

-30-

1. The governmental interest in
enforcing the seat belt law is

relatively slight

The Texas seat belt statute is a criminal law of relatively
recent vintage. See Act of July12, 1984, 68th Leg., 2nd C.S.,
ch. 1, § 1, 1984 Tex. Gen. Laws 11, 12. Indeed, seat belts were
not even required in newly-manufactured American
automobiles until 1967. See Kurt B. Chadwell, Comment,
Automobile Passive Restraint Claims Post-Cipollone: An End
to the Federal Preemption Defense, 46 Baylor L. Rev. 141,
143-44 (1994).

The gravity of the offense is an important factor in
determining the reasonableness of a search or seizure. See, e.g.,
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); McDonald v.
United States, 335 U.S. 451, 459 (1948) (Jackson, J.,
concurring). Not wearing a seat belt is obviously less grave of
an offense than attempted robbery, malicious wounding, or
burglary of a home, all crimes involving direct attacks on the
rights of others. Cf Winston v. Lee, 470 U.S. 753, 755-56
(1985); Tennessee v. Garner, 471 U.S. 1, 4 (1985). It also is
less serious than drunk driving, which poses a threat to all
others on the road. Cf Welsh, 466 U.S. at 755 (Blackmun, J.,
concurring). It is even less significant than a failure to use a
turn signal. Cf Whren v. United States, 517 U.S. 806, 810
(1996).

Finally, the penalty for violating the seat belt law is
minimal: a fine ranging from $25 to $50 is authorized. Tex.
Transp. Code Ann. § 545.413(d) (West 1999). The Texas
Legislature intended for the fine to be the only penalty for not
wearing a seat belt, not custodial arrest and subsequent
incarceration. See Bridgestone/Firestone, Inc. v. Glyn-Jones,
878 S.W.2d 132, 134 (Tex. 1994) (the statutory fine was meant

-31-

to be “the sole legal sanction for the failure to wear a seat
belt”). Texas even bars evidence of the use or non-use of seat
belts in civil litigation. Tex. Transp. Code Ann. § 545.413(g)
(West 1999). “(T]he penalty that may attach to any particular
offense seems to provide the clearest and most consistent
indication of the State’s interest in arresting individuals
suspected of committing that offense.” Welsh v. Wisconsin,
466 U.S. 740, 754 n.14 (1984). As evidenced by the penalty
imposed for a violation of the seat belt law, the governmental
interest in the law’s enforcement is relatively slight.

2. The custodial arrest furthered no
legitimate law enforcement objective
that could not also have been
accomplished by issuing a citation

Even if the government had a stronger interest in
enforcing the seat belt laws, a custodial arrest would not
advance that interest. “The most common purpose of arrest is
to bring an actual or supposed criminal into court for
investigation or trial or to subject a convict to the penalty
previously imposed upon him by a competent tribunal.” Rollin
M. Perkins, The Law of Arrest, 25 lowa L. Rev. 201, 202
(1940). These and other justifications for a custodial arrest
usually do not apply to traffic violations.

Because the traditional justifications for custodial
arrests do not apply to most traffic offenses, issuing citations is
the preferred method for enforcing most traffic laws. “It should
be the policy of every law enforcement agency to issue citations
in lieu of arrest or continued custody to the maximum extent
consistent with the effective enforcement of the law.”
American Bar Association, Standards for Criminal Justice, §
10.2-1 (2d ed. 1980). Academics have made the same
recommendation. See, e.g., 3 Wayne R. LaFave, Search and

-32-

Seizure § 5.2(g), at 91 (3d ed. 1996); Salken, supra, at 249
(1989); Arthur Mendelson, Arrest for Minor Traffic Offenses,
19 Crim. L. Bull. 501, 503 (1983).

In addition, approving the use of custodial arrests for
fine-only traffic offenses such as seat belt laws is counter to the
governmental interest in enforcing traffic laws: it raises the
stakes of the “routine” traffic stop, increasing the potential
danger to police officers. People should not fear police, whose
job it is to protect them. But if police have the unfettered
discretion to arrest anyone for even the slightest criminal
infraction, that will engender fear of police. Currently the
expectation of most drivers is that a traffic stop will be brief.
Because of this, traffic stops are less adversarial than custodial
arrests. “The threat to officer safety from issuing a traffic
citation . . . is a good deal less than in the case of a custodial
arrest.” Knowles v. Iowa, 525 U.S. 113, 117 (1998).

If the decision below is approved by this Court, that
may change. Every driver who sees the flashing lights of a
police car in the rear view mirror will have cause to wonder if
this will be the officer who decides to handcuff and take the
driver to jail. Drivers will wonder if they will spend the next
two days in jail, and their behavior will reflect this.

3. No special circumstances were
present in this case to make a
custodial arrest mecessary or
reasonable

Various factors may arise in individual traffic stops that
conceivably could make the increased governmental intrusion
of a custodial arrest “reasonable.” No such factors were present
in this case. The custodial arrest did nothing to further “the

-$3-

community’s interest in fairly and accurately determining guilt
or innocence.” Winston v. Lee, 470 U.S. 753, 762 (1985).

A custodial arrest was not necessary to secure an
appearance in court for the seat belt violation. Ms. Atwater —
known by the officer to be a local resident, wife of an
emergency room physician, and mother of two young children
— posed no risk of flight. Likewise, Officer Turek confirmed
that she was a licensed driver after she presented him with her
Texas driver’s license number. (R. 386). Once the officer had
made the stop, he had obtained all the evidence necessary for
prosecution of the offense. See Knowles, 525 U.S. at 118. Ms.
Atwater’s signature on a citation, promising to appear, was all
that was needed to insure enforcement of the law.'®

Similarly, there was no indication that Ms. Atwater
would have refused to belt herself and her children once her
non-compliance was cited. In fact, the record strongly indicates
the opposite: she was telling her children that they were wrong
and that they all should have been wearing their seat belts. (R.
384). But Ms. Atwater was not given the chance to sign a
promise to appear: Officer Turek immediately announced his
decision to place her under custodial arrest. (R. 382).
Whatever his motivation, from the moment Officer Turek

'’ The Fourth Amendment does not a/ways mandate the least
intrusive law enforcement practice, see, e.g. , Illinois v. Lafayette, 462
U.S. 640, 647-48 (1983), as when the less intrusive practice poses
significant difficulties in its application. But here, what happens to
be a “less intrusive” means for enforcing the seat belt law is also the
easiest, cheapest, most commonly used, most effective, in short, the
best means as well.

-34-

stopped Ms. Atwater’s truck, he made it clear that he intended
to take her to jail.'®

Finally, any of the sort of aggravating circumstances
that can cause a traffic stop to “escalate” were wholly lacking
in this case. Gail Atwater was not intoxicated or using illegal
drugs. There were no outstanding warrants for her arrest. She
was not a repeat offender.'’ Ms. Atwater was at all times
cooperative and polite, even when Officer Turek’s yelling made
her children begin to cry. (R. 388-89, 414). There was no
indication that Ms. Atwater was armed, or that she posed any
threat to the officer’s safety. In short, none of the common
justifications given for custodial arrests were present in this
case. All legitimate law enforcement objectives could have
been accomplished by issuing a citation. In the balancing of
interests, the respondents’ side of the scale is empty.

As the court below erred by refusing to engage in an
historical inquiry, so, too, did it err by not balancing the
competing interests of the individual and government as
mandated by this Court’s decisions. Other lower courts have
not shirked this responsibility when faced with a custodial

‘© Not surprisingly, Officer Turek’s performance review
indicates that he led his department in misdemeanor arrests. (R.
653).

'7 At various stages in this litigation, the respondents have
mischaracterized Gail Atwater as having previously violated the seat
belt law. See, e.g., Brief of Appellees at 3, Atwater v. City of Lago
Vista, 165 F.3d 380 (Sth Cir. 1999) (No. 98-50302). There is not
evidence in the record so indicating. Ms. Atwater had been stopped
by Officer Turek a few weeks before the episode that gave rise to this
case, but her children were restrained on that occasion and no
citation was issued. (R. 379, 405, 703-07).

-35-

arrest for a traffic violation. See, e.g., State v. Jones, 727
N.E.2d 886, 892-95 (Ohio 2000); State v. Harmon, 910 P.2d
1196, 1201-04 (Utah 1995). Under the circumstances of this
case, the balancing of the competing interests leads to the same
result that would have been reached under common law rules,
themselves the result of a balancing of interests: the custodial
arrest of Gail Atwater was an unreasonable seizure.

Ill. The Court Below Erred by Creating a Broad Per Se
Rule that Probable Cause Without More Justifies
Any Custodial Arrest, Regardless of the Offense

The Fifth Circuit announced a broad new rule that
probable cause is the only Fourth Amendment restriction on a
seizure of a person. Such a rule, when applied to minor traffic
offenses, cannot be squared with the events that led to the
Fourth Amendment’s adoption or with any balancing of the
competing interests of the individual and law enforcement.
Additionally, this Court has never recognized such an
unqualified rule, which ignores and even undercuts other
decisions of this Court.

A. The Court of Appeals’ Reliance on Whren v.
United States Was Misplaced

The Fifth Circuit relied on language in Whren v. United
States, 517 U.S. 806 (1996), concluding that any custodial
arrest was reasonable so long as there is probable cause,
ignoring the character of the offense. See 195 F.3d at 244-46,
Pet. App. A at 4a-7a. The court below focused on the

following passage:

Where probable case has existed, the only cases in
which we have found it necessary to perform the
‘balancing’ analysis involved searches or seizures

-36-

conducted in an extraordinary manner, unusually
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 ahome without a warrant, or physical penetration
of the body.

Whren, 517 U.S. at 818 (citations omitted). There are several
reasons why reliance on this passage was incorrect.

First, Whren did not address the constitutionality of a
custodial arrest, but rather of a temporary detention — a traffic
stop — based on probable cause to believe that a traffic
violation had been committed. Whren, 517 U.S. at 808. The
Whren petitioners contended that a traffic stop should only be
permitted if a hypothetical police officer, “acting reasonably,
would have made the stop for the reason given.” Whren, 517
U.S. at 810. This Court unanimously rejected that argument as
a thinly-veiled effort to avoid the Court’s repeated rejections of
efforts to scrutinize officers’ objective intent. 517 U.S. at 811-
12. All that was before this Court in Whren was the
constitutionality of a traffic stop, not the custodial arrests that
followed.

Second, the custodial arrests in Whren were not traffic
arrests, but drug arrests based on probable cause. The vehicle
occupants were arrested for possession of narcotics after the
officer approached the vehicle and saw the passenger holding
in plain view two large bags of what appeared to be crack
cocaine. Whren, 517 U.S. at 808-09. The officers who made
the arrests in Whren were plainclothes “vice-squad officers”
patrolling in a “high drug area.” Jd. at 808. The officers had
observed a vehicle with temporary plates that had stopped for
an unusually long time at a stop sign, for no apparent reason.
Id. The vehicle then drove away when the police car made a U-

-37-

turn and approached. /d. The petitioners contended that the
stop and ultimate arrests were for a traffic violation in the hope
that this Court would announce a rule that prohibited
“pretextual” traffic stops. Jd. at 810, 811-12. However, the
facts in Whren arguably were sufficient to justify a brief
detention based on reasonable suspicion apart from any traffic
violation. See United States v. Cortez, 449 U.S. 411, 417-18
(1981).

Finally, the custodial arrest of Gail Atwater was
extraordinary. A custodial arrest is admittedly less of an
intrusion than a physical penetration of the body, and based on
precedent, entries into the home are treated as greater intrusions
than physical incarceration of one’s person. But what
constitutes an “extraordinary” seizure is relative to the crime at
issue. The infraction for which Ms. Atwater was arrested is
much less serious than the offenses in the decisions listed by
this Court in Whren as involving “extraordinary” intrusions:
drunk driving,'* burglary,'? armed robbery,” or trafficking in
narcotics.” The nature and quality of an intrusion on an
individual’s Fourth Amendment interests must be balanced
“against the importance of the governmental interests alleged
to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1,8
(1985) (quoting United States v. Place, 462 U.S. 696, 703
(1983); citing Delaware v. Prouse, 440 U.S. 648, 654 (1979);
United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976)).
The degree of the governmental intrusion on Gail Atwater was

'§ Schmerber v. California, 384 U.S. 757, 758 (1966).
'9 Tennessee v. Garner, 471 U.S. 1, 5 (1985).

20 Winston v. Lee, 470 U.S. 753, 755 (1985).

2! Wilson v. Arkansas, 514 U.S. 927, 929 (1995).

-38-

just as extraordinary as the intrusions in the cases listed in
Whren, when the basis for the governmental intrusion -
enforcing the seat belt law — is considered.

Indeed, even the Solicitor General has indicated that,
after making a traffic stop based on probable cause to believe
that a traffic violation has occurred, it is extraordinary to do
more than issue a ticket, absent some indication of other
ongoing criminal activity:

Once a police officer has completed his
investigation and citation of the traffic offense that
gave rise to the stop, the motorist must be permitted
to leave, unless the officer has by that time developed
reasonable suspicion that the motorist has committed
or is committing another offense. See United States
v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998);
[United States v. McRae, 81 F.3d 1528, 1535 (10th
Cir. 1996)]. A reasonable suspicion to continue to
detain a motorist requires a ‘particularized and
objective basis for suspecting the person stopped of
criminal activity,’ Ornelas v. United States, 517 U.S.
690, 696 (1996) (internal quotation marks omitted), in
additional to the original traffic offense.

Brief for the United States in Opposition at 9-10, Potts v.
United States, No. 98-2000. In Potts, the police officer stopped
the vehicle after it had changed lanes without signaling and it
had been speeding; there was no question the officer had
probable cause to believe that these offenses had occurred.
United States v. Potts, 173 F.3d 430, 1999 WL 96756 (6th Cir.
Feb. 2, 1999) (unpublished disposition). If probable cause to
believe a traffic offense has occurred were alone sufficient to
justify a custodial arrest, then the issue of whether a traffic stop
lasts too long — a much less significant governmental intrusion

-39-

than a custodial arrest — would rarely, if ever, be a concern.

B. United States v. Watson Upheld Only
Warrantless Felony Arrests, and its Analysis
Supports Petitioners’ Position

The Fifth Circuit also ignored this Court’s anaysis in
United States v. Watson, 423 U.S. 411 (1976). Watson dealt
with the validity of a warrantless felony arrest based on
probable cause. Watson, 423 U.S. at 415-16. The Watson
Court did not take for granted that probable cause was
sufficient to justify a warrantless felony arrest. Instead, the
Court carefully reviewed common-law authorities to determine
if a warrantless felony arrest was proper when the Fourth
Amendment was adopted. Like Watson, the instant case
involves a warrantless custodial arrest. The Watson analysis,
therefore, should be applied here.

The Watson opinion contains a broad statement
indicating that probable cause would also be sufficient to justify
a warrantless arrest for a misdemeanor: “The cases construing
the Fourth Amendment thus reflect the ancient common-law
rule that a peace officer was permitted to arrest without a
warrant for a misdemeanor or felony committed in his presence
as well as for a felony not committed in his presence if there
was reasonable ground for making the arrest.” Watson, 423
U.S. at 418. But the authorities cited to support this statement
either address only felony arrests” or note the common-law rule

” See Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230
(K.B.1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 638-39, 108
Eng. Rep. 585, 586 (K.B.1827); Kurtz v. Moffitt, 115 U.S. 487, 504
(1885); Rohan v. Sawin, 59 Mass. (59 Cush.) 281, 284 (1850);
Wakely v. Hart, 6 Bin. 316, 318 (Pa.1814); Holley v. Mix, 3 Wend.
350, 350 (N.Y. Sup. Ct.1829); State v. Brown, 5 Del. (5 Harr.) 505,

-40-

limitting arrest authority to breach-of-the-peace mis-
demeanors.”

Instead, the analysis and holding of Watson demonstrate
that an arrest that meets the common law standards satisfies
Fourth Amendment requirements. As the Watson Court stated,
a “balance [was] struck by the common law in generally
authorizing felony arrests on probable cause, but without a
warrant.” Watson, 423 U.S. at 421. The common law struck a
different balance depending on the nature of the offense. The
arrest in Watson satisfied the common law rules. The arrest in
this case does not.

os The Decision Below Abrogates the
Automobile Exception by Permitting
Warrantless Vehicular Searches Without
Probable Cause that a Vehicle Contains
Contraband

Although the Fifth Circuit’s decision purports to place
importance on probable cause, the ironic effect of the holding

507 (Ct. Gen. Sess. 1853); Johnson v. State, 30 Ga. 426, 426, 429-30
(1860); Wade v. Chaffee, 8 R.1. 224, 225 (1865); Reuck v. McGregor,
32 N.J.L. 70, 74 (Sup. Ct. 1866); Cf Baltimore & O. R. Co. v. Cain,
81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895) (stating that “[i}t is
settled that an officer has the right to arrest without a warrant for any
crime committed within his view,” but the issue before the court was
whether a non-police officer could arrest without a warrant for
breach of the peace).

»® 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4
W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the
Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown
*72-74; Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541
(1924).

-41-

is to dispense with probable cause altogether for warrantless
searches of automobiles. If custodial arrests were permitted for
any fine-only traffic offense, then there would no longer be a
probable cause requirement for application of the “automobile
exception.”

Seventy-five years ago, this Court recognized the
“automobile exception” to the warrant requirement, holding
that a warrantless search of a motor vehicle based on probable
cause satisfied the Fourth Amendment’s reasonableness
requirement. See Carroll v. United States, 267 U.S. 132, 153
(1925). “Ifa car is readily mobile and probable cause exists to
believe it contains contraband, the Fourth Amendment thus
permits police to search the vehicle without more.”
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam)
(citing California v. Carney, 471 U.S. 386, 393 (1985)).

If the decision below is affirmed, police will not only be
permitted to search vehicles “without more,” they will be
allowed to search vehicles with even less. “[W]hen a
policeman has made a lawful custodial arrest of the occupant of
an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile.”
New York v. Belton, 453 U.S. 454, 460 (1981). If custodial
arrests are allowed for all minor traffic offenses, the automobile
exception’s probable cause requirement will have been
effectively jettisoned.

This is true, of course, whenever police conduct a
warrantless arrest: they are then permitted to conduct a
warrantless search incident to the arrest. The probable cause
that justifies the arrest essentially transfers to support the
warrantless search when there may have been no probable
cause to justify the search alone. This is palatable when there
is probable cause that a serious crime has been committed, but

-42-

much less so when the offense for which the arrest is made is
merely a minor traffic offense. The fact that a citizen happens
to violate a traffic law is no indication of any other criminal
conduct. This Court has observed that “the Carroll doctrine
does not declare a field day for the police in searching
automobiles.” Almeida-Sanchez v. United States, 413 U.S. 266,
269 (1973). If the decision below is left intact, the field day
will have been declared.

D. The Court of Appeals’ Ruling Undermines
this Court’s Decision in Knowles v. lowa

Finally, the decision below undermines this Court’s
recent decision in Knowles v. Iowa, 525 U.S. 113 (1998).
Knowles held that a police officer cannot search a car following
a traffic stop when the officer issues a traffic citation and does
not place the driver under custodial arrest. Knowles, 525 U.S.
at 114. The decision below undermines Knowles in two

respects.

First, the Fifth Circuit nullifies any protection Knowles
provides against full searches incident to arrest. Any officer
wishing to avoid the holding of Knowles need only place the
driver under custodial arrest for the traffic violation, and
thereafter search the vehicle and driver as a search incident to
arrest. See United States v. Robinson, 414 U.S. 218 (1973). If
the decision below is allowed to stand, Knowles will cease to
provide any protection to the average citizen. Indeed, a zealous
officer will have an incentive to make custodial arrests in order
to expand the scope of permissible searches.

Second, unless the decision below is reversed, Knowles
will be meaningless when read against this Court’s earlier
decisions addressing searches incident to arrest. This Court has
held that when a police officer has probable cause to believe an

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offense has occurred for which an arrest may be made, the
search incident to the arrest can be conducted either before or
after the actual arrest. See, e.g., Rawlings v. Kentucky, 448 U.S.
98, 110-11 (1980); Peters v. New York, 392 U.S. 40, 40-43
(1968). Thus, unless limitations are placed on when custodial
arrests may be used for traffic offenses, avoiding the holding of
Knowles becomes a matter of timing: a police officer may
simply search the vehicle first, and if contraband is found,
declare that the driver has been arrested for the traffic violation,
thereby justifying the search after-the-fact. The officer also
then avoids the trouble of actually making the custodial arrest
unnecessarily but accomplishes the desired search. As
Professor LaFave has explained, “if Rawlings is not to undo
Knowles, it will be necessary for the Court to find some way to
avoid its use in the manner just suggested.” 3 Wayne R.
LaFave, Search and Seizure § 5.2, at 16 (3d ed. 2000 Supp.).”°
Prohibiting the use of custodial arrests for fine-only traffic
offenses absent extraordinary circumstances would solve this
dilemma.

** Because of this, the systemic disincentives to making
custodial arrests, raised by the respondent in Ricci as a reason for not
placing limits on the use of custodial arrests for minor offenses, will
not deter a police officer who wishes to conduct a thorough search
of a vehicle or person. See Respondent's Brief at 15, Ricci v. Village
of Arlington Heights, No. 97-501, 1998 WL 134006. Significantly,
the respondent in Ricci essentially conceded that it would be proper
to require citations rather than custodial arrests for traffic offenses.
Id. at 16.

° See also Wesley M. Oliver, With an Evil Eye and an
Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial
Profiling, 74 Tulane L. Rev. 1409, 1453 (2000) (“The unanimous
decision in Knowles simply would make no sense if probable cause
to believe an offender had committed a traffic offense alone justified
taking him into custody.”).

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—. “iil i i

A tt A ts

IV. This Case Lends Itself to Articulating More Clearly
the Permissible Boundaries of When a Custodial
Arrest May Be Used for Fine-Only Traffic Offenses

It would not be necessary to announce a general rule in
this case in order to determine that the court below erred. The
specific circumstances of this case make clear that the custodial
arrest of Gail Atwater for violating the seat belt law was
unreasonable under the Fourth Amendment. The arrest
furthered no legitimate law enforcement interests. It would not
be inappropriate to leave to the lower courts the task of
determining if and when custodial arrests for other minor traffic
offenses, under different circumstances, comply with the Fourth
Amendment. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 936
(1995) (“[W]e leave to the lower courts the task of determining
the circumstances under which an unannounced entry is
reasonable under the Fourth Amendment.”). Indeed, this Court
often has eschewed bright-line rules in Fourth Amendment
settings. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39 (1996).

Nevertheless, this Court has not hesitated to provide
guidance to police officers and the public when appropriate. As
the Court has explained in setting forth a general rule, “Our task
in this case is to articulate more clearly the boundaries of what
is permissible under the Fourth Amendment.” County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); see also
Knowles v. Iowa, 525 U.S. 113, 118-19 (1998). This is a case
that lends itself to establishing those boundaries.

Both the extreme intrusion of custodial arrests on law-
abiding Americans, and the literally millions of traffic stops
that occur every year, make it desirable to articulate the limits
on when custodial arrests may be used for traffic offenses.
While in some instances, a wide array of approaches in
different regions makes sense, that is not true here. For

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—

uniformity, to avoid arbitrary exercises of discretion, and to
avoid the likelihood of future Fourth Amendment violations,
Petitioners suggest the following rule:

The Fourth Amendment prohibits custodial arrests for
fine-only traffic offenses except when the arrest is
necessary for enforcement of the traffic laws or when
the offense would otherwise continue and pose a
danger to others on the road.

Issuing traffic citations is already the most common
method for enforcing fine-only traffic offenses. Custodial
arrests, on the other hand, are rare. See, e.g., Berkemer v.
McCarty, 468 U.S. 420, 434 (1984). The proposed rule
preserves the common-law distinction between lesser and more
serious offenses, but does so without reliance on terms such as
“misdemeanor,” “felony,” or “breach of the peace,” which have
definitions that vary widely in different jurisdictions and differ
substantially from their common-law meanings. See United
States v. Watson, 423 U.S. 411, 440 n.9 (1976) (Marshall, J.,
dissenting) (listing federal statutes making offenses felonies
that were misdemeanors at common law).

Furthermore, the proposed rule curbs unfettered
discretion in conducting searches and seizures of the over 185
million Americans drivers for fine-only offenses that are only
marginally criminal. Such limitations on police discretion are
good for both the police and the public. See Amicus Curiae
Brief of the Institute on Criminal Justice at the University of
Minnesota Law School et ai. The proposed rule limits
discretion, however, without thwarting legitimate law
enforcement objectives. Arrests would still be permitted for
drunk driving and other offenses that will continue to pose a
danger to others if the driver is not detained. Similarly, it
would permit custodial arrests in cases when the officer cannot

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ascertain the driver’s identity, thus ensuring effective
enforcement of traffic offenses.

Finally, the proposed rule leaves police with ample
room to detect other more serious crimes.”* Police will still be
able to do any of following during a traffic stop:

° With probable cause to believe that a motor vehicle
contains contraband, police may stop and search a
vehicle without first obtaining a warrant as thoroughly
as a magistrate could authorize. See United States v.
Ross, 456 U.S. 798, 823 (1982).

° Police may order a driver to exit the vehicle and
conduct a protective “frisk” of the driver’s person for
weapons. See Pennsylvania v. Mimms, 434 U.S. 106
(1977).

° Police also may order any passengers to exit the
vehicle, and frisk them as well. See Maryland v.
Wilson, 519 U.S. 408, 415 (1997).

° Police may demand to inspect the VIN, and remove any
objects obscuring the view of it. See New York v.
Class, 475 U.S. 106, 115, 118-19 (1986).

26 The potential that other crimes might not be discovered if
police are not permitted to arrest for any traffic offense is not a
legitimate part of the Fourth Amendment inquiry. To consider the
government’s interest in enforcing crimes other than the one for
which the arrest was made is to allow the effect of the exclusionary
rule — which is a Fourth Amendment remedy — to impact the
substance of the Fourth Amendment. Nevertheless, this concern may
have motivated the Fifth Circuit in reaching its result.

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° To insure their safety, police may conduct a limited
search of the vehicle’s interior, including the passenger
compartment and any closed containers in the area, to
ensure no weapons are present, if there are reasonable
grounds to believe that their safety is threatened. See
Michigan v. Long, 463 U.S. 1032, 1049-51 (1983).

° Police may seize, without a warrant, any contraband
they encounter in “plain view” while conducting the
above searches, and arrest the driver or passengers
based on the probable cause developed from that
discovery. See Texas v. Brown, 460 U.S. 730 (1983).

° Police may question a driver and passengers regarding
unrelated criminal activity without first warning them
of their mght to remain silent. See Berkemer v.
McCarty, 468 U.S. 420, 439-40 (1984).

° Police may seek and obtain a driver’s consent to
conduct more expansive searches, and are not required
to tell the driver that he or she need not consent. See
Ohio v. Robinnett, 519 U.S. 33, 36, 39-40 (1996).

° Police may have a drug-sniffing dog circle the vehicle
to ascertain the presence of drugs. See United States ».
Place, 462 U.S. 696, 707 (1983) (drug sniffing dog
sniffing luggage not a search); but see Edmond v.
Goldsmith, 183 F.3d 659 (7th Cir. 1999), cert. granted,
No. 99-1030 (Feb. 22, 2000).

In short, police officers making traffic stops have at their
disposal abundant powers to detect crimes, other than traffic
violations, that may be occurring.

_

“An individual operating or traveling in an automobile
does not lose all reasonable expectation of privacy simply
because the automobile and its use are subject to government
regulation.” Delaware v. Prouse, 440 U.S. 648, 662 (1979).
Having the discretion to take the actions listed above provides
police with ample opportunities to uncover any other criminal
activity. In the case of Gail Atwater, of course, there was no
other criminal activity. Allowing police to retain the broad
discretion to arrest granted them by the Fifth Circuit will not
further detection of other crimes. It will simply, when
exercised, constitute a severe and arbitrary governmental
intrusion on otherwise law-abiding citizens who happen to
violate minor traffic laws.

V. Conclusion

History, balancing the competing interests of the
individual and government, and faithfully following this
Court’s precedents all demonstrate that Gail Atwater’s Fourth
Amendment rights were violated. Petitioners therefore
respectfully pray that the Court reverse the court of appeals’ en
banc decision, and remand this case to the district court for
trial.

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Respectfully submitted,

Robert C. DeCarli *

Debra Irwin

Law Offices of DeCarli & Irwin
12034 Research Blvd., Suite 6
Austin, Texas 78759

(512) 258-9299

Fax: (512) 258-1395

Pamela McGraw
P.O. Box 202165
Austin, Texas 78720
(512) 257-3688

Fax: (512) 331-1560

Michael F. Sturley

727 East Dean Keeton St.
Austin, Texas 78705
(512) 232-1350

Fax: (512) 471-6988

*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A08. Public record. Not legal advice.