Amicus Curiae Brief — Atwater v. Lago Vista
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
Supreme Court, 8.
7 FILED
— 1
No. 99-1408 g
ö
'
4
GAIL ATWATER, ET AL., PETITIONERS
CITY OF LAGO VISTA, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
THOMAS M. GANNON
Attorney
Department of Justice
Washington, D. C. 20520-0001
(202) 514-2217
QUESTION PRESENTED
Whether the reasonableness clause of the Fourth
Amendment prohibits officers, who have probable cause to
believe that a crime has been committed, from arresting the
suspect because the crime involves a traffic offense that is
punishable only by a fine.
TABLE OF CONTENTS
Interest of the United States
I. Warrantless misdemeanor arrests based on
probable cause are reasonable under the Fourth
Amendment regardless of whether the offense
constitutes a “breach of the peace”
A. No source of law supports imposing on the
Fourth Amendment a “breach of the peace”
requirement for misdemeanor arrests
B. Constitutionalizing restrictions on probable
cause-based arrests that rest on the common law
distinction between felonies and misdemeanors
would be unworkable
II. The Fourth Amendment permits arrests
based on probable cause for offenses, including
traffic offenses, that are not punishable by
incarceration
A. Fines have long been an important means
of enforcing the criminal law
B. The Fourth Amendment permits seizures
for offenses punishable only by fine
C. A distinction in arrest authority based
on punishment poses enforcement
lifficulti
D. Legislatures have prevented and can
continue to prevent arbitrary law
enforcement
(III)
conan
15
IV
TABLE OF AUTHORITIES
Cases: Page
Bearden v. Georgia, 461 U.S. 660 (1983) 20
Bell v. Wolfish, 441 U.S. 520 (1979) 24
Berkemer v. McCarty, 468 U.S. 420 (1984) . 18, 30
Brown v. Texas, 443 U.S. 47 (1979) 7
Burroughs v. Eastman, 59 N. W. 817 (Mich. 1894) 9
Carroll v. United States, 267 U.S. 182 (1925) . ., 10, 16, 25
City of Akron v. Mingo, 160 N. E. 2d 225 (Ohio
1959) 14
City of Boerne v. Flores, 521 U.S. 507 (1997 7 13
Conrad v. Lengel, 144 N. E. 278 (Ohio 1924) 9
Davis v. United States, 328 U.S. 582 (1946) 10
Dunaway v. New York, 442 U.S. 200 (1979) E 7, 27-28
Ehrlich v. Guiliani, 910 F 2d 220 (4th Cir. 1990) 24
Fisher v. Washington Metro. Area Transit Auth.,
690 F. 2d 1133 (4th Cir. 1982) 10
Gerstein v. Pugh, 420 U.S. 103 (1975) 6, 23
Gustafson v. Florida, 414 U.S. 260 (1973) 21
Hammer v. Gross, 932 F.2d 842 (9th Cir.) (en banc),
cert. denied, 502 U.S. 980 (1991) 16
Higbee v. City of San Diego, 911 F.2d 377 (9th
Cir. 1990) 10, 24
John Bad Elk v. United States, 177 U.S. 529
(1900) 10
Johnson v. United States, 333 U.S. 10 (1948 10
Knowles v. Iowa, 525 U.S. 113 (1998) 26
Kurtz v. Moffitt, 115 U.S. 487 (1885) 10, 15
Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983) 24
Lewis v. United States, 518 U.S. 322 (1996) 19
Michigan v. DeFillippo, 443 U.S. 31 (1979) 21
Michigan v. Summers, 452 U.S. 692 (1981) 24
New York v. Class, 475 U.S. 106 (1986) 26
Oleson v. Pincock, 251 P. 23 (Utah 1926) 9
V
Cases Continued: Page
Payton v. New York, 445 U.S. 573 (1980) . 6, 10, 13, 15
Pennsylvania v. Mimms, 434 U.S. 106 (1977) 21
People v. Controller, 18 Mich. 445 (1869) 19
Rawlings v. Kentucky, 448 U.S. 98 (1980) 27
Robbins v. California, 453 U.S. 420 (1981) 22
Schmerber v. California, 384 U.S. 757 (1986) 23
South Dakota v. Opperman, 428 U.S. 364 (1976) 26
Staker v. United States, 5 F.2d 312 (6th Cir.
1925) 10
State ex rel. Thompson v. Reichman, 188 S.W. 225,
reh’g denied, 188 S.W. 597 (Tenn. 1916) 14, 24
Street v. Surdyka, 492 F. 2d 368 (4th Cir. 1974) 10
Tate v. Short, 401 U.S. 395 (1971) 20
Tennessee v. Garner, 471 U.S. 1 (1985) ............. 12-13, 16, 21
United States v. Brewster, 408 U.S. 501 (1972) ............. * 14
United States v. Martinez - Fuerte, 428 U.S. 543
(1976) 26
United States v. Robinson, 414 U.S. 218 (1973) * 21
United States v. Ross, 456 U.S. 798 (1982) 22
United States v. Salerno, 481 U.S. 739 (1987) .............. 23, 24
United States v. Sharpe, 470 U.S. 675 (1985) 30
United States v. Trigg, 878 F. 2d 1037 (7th Cir.
1989) 10
United States v. Watson, 423 U.S. 411 (1976) — 10, 11, 13, 22
Warden v. Hayden, 387 U.S.294 (1967) 13
Wayne County v. City of Detroit, 17 Mich. 390
(1868) 19
Welsh v. Wisconsin, 466 U.S. 740 (1984) 9, 10, 19,
21, 22, 25
White v. Kent, 11 Ohio St. 550 (1860) 9
Whren v. United States, 517 U.S. 806 (1996) .............. passim
Williamson v. United States, 207 U.S. 425 (1908) ........... 14
Wilson v. Arkansas, 514 U.S. 927 (1995). 12-13, 21
Winston v. Lee, 470 U.S. 753 (1985) 21
VI VII
Constitution, statutes and regulations: Page Statutes and regulations~Continued:
U.S. Const. 18 U.S.C. 3052
Art. I 15 18 U.S.C. 3053
$6 5, 14 18 U.S.C. 3056(c)(1)(C)
Amend. IV passim 18 U.S.C. 3061(a)(2)
Amend. V 3 18 U.S.C. 3063(a)(3)
Amend. XIV (Equal Protection Clause) 6, 29 18 U.S.C. 357100
14 U.S.C. 84 19 19 U.S.C. 1589a(3)
15 U.S.C. 1338 19 21 U.S.C. 372(e)(4)
16 U.S.C. 422d 19 21 U.S.C. 841 (1994 & Supp. IV 1998)
16 U.S.C. 423f 19 21 U.S.C. 842 (1994 & Supp. IV 1998)
16 U.S.C. 4601l-Ga(e) 1,11 21 U.S.C. 844 (1994 & Supp. IV 1998)
16 U.S.C. 668b(a) 1¹ 21 U.S.C. 878(a)(3)
16 U.S.C. 668dd(g) (Supp. IV 1998) 11 22 USC. 10
16 U.S.C. 670j(b)(1) 11 25 U.S.C. 2803(3)(A)
16 U.S.C. & 11 28 U.S.C. 566(d)
16 U.S.C. 706 11 33 U.S.C. 446
16 U.S.C. 727(a) 11 33 U.S.C. 452
16 U.S.C. 7423-100) 1¹ 33 U.S.C. 1321(m)(1)(B)
16 U.S.C. 831e-3(b)(2)(A) 11 42 U.S.C. 1983
16 U.S.C. 916g 11 50 U.S.C. App. 2411(a)
16 U.S.C. 959(d)(1) 11 Ala. Code (1995 & Supp. 1999):
16 U.S.C. 971f(aX(2) 11 § 15-10-3(a)(1)
16 U.S.C. 972g(d) 11 932-5 A-1910
16 U.S.C. 11720) 11 Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp.
16 U.S.C. 1338(b) 11 1999)
16 U.S.C. 1377(d)(1) 11 65 Ill. Comp. Stat. Ann. § 5/1-2-1 (West 1996)
16 U.S.C. 1540(e\3) 11 625 Ill. Comp. Stat. Ann. §§ 5/6-800 et seg.
16 U.S.C. 3375(b) 1¹ (Nonresident Violator Compact of 1977 (West 1998) ....
16 U.S.C. 5506(c)(1)(A) (1994 & Supp. IV 1988) 11 NJ. Stat. Ann. (West 1995):
18 U.S.C. 243 19 § 2C:1-4
18 U.S.C. 244 19 § 2C:1-5
18 U.S.C. 333 18 Tex. Transp. Code Ann. (West 1999 & Supp. 2000):
18 U.S.C. 475 19 $§ 543.003-543.005
18 U.S.C. 489 19 § 545.413(a)
18 U.S.C. 495 18 § 543.413(b)
18 U.S.C. 510 (1994 & Supp. IV 1998) 17, 18
Vill
Statutes and regulations—Continued:
Va. Code (Michie 1996):
§ 18.2-266. 108)
§ 18.2-270 (Supp. 1999)
Wis. Stat. Ann. § 346.65(2)(a) (West 19999
36 C. F. R.:
Pt. 1:
Section 1.3(a)
Pt. 4:
Section 4.15 .......
Miscellaneous:
4 W. Blackstone, Commentaries on the Laws of
England (1769)
Halsbury’s Laws of England: (1st ed. 1909)
—]]Gœ—ͤ—U—b — ũ '4·ũMñdÄNm A A.
Vol. 9 (Ist ed. 1909) —
Vol. 10 (3d ed. 1955)
10 Halsbury’s Laws of England (3d ed. 1955) .
2 W. Hawkins, A Treatise of Pleas of the Crown
(1795)
Institute for Law and Justice, Domestic Violence: A
Review of State Legislation Defining Police &
Prosecution Duties and Powers (Mar. 1998)
Institute for Law and Justice, State Stalking Leg-
islation: A Status Report—1997 (Mar. 1998) ...
W. LaFave, Arrest: The Decision to Take a Suspect
into Custody (1965)
3 W. Lafave, Search and Seizwre (3d ed. 1996)
Model Code of Prearraignment Procedure (1975)
National Highway Traffic Safety Admin., Standard
Enforcement Saves Lives: The Case for Strong
Seat Belt Laws (1999)
W. Schroeder, Warrantless Misdemeanor Arrests
and the Fourth Amendment, 58 Mo. L. Rev. 771
(1993)
RRS
do
12
IX
J. Stephen, A History of the Criminal Law of
England (1883):
Vol. 1 15, 16
Vol. 2 16
Vol. 3 19
J. Story, Commentaries on the Constitution of the
United States (Carolina Academic Press 1987) 14
U.S. Bureau of Justice Statistics:
Offenders Returning to Federal Prison, 1986-97
(Sept. 2000) 20
Prison Statistics (1999) 20
Survey of State Prison Inmates (1991) 20
U.S. Dep’t of Justice, Bureau of Justice Assistance,
Regional Seminar Series on Developing and
Implementing Antistalking Codes (June 1996) ............. 16-17
U.S. Dep't of Justice, Office of Justice Programs,
Stalking and Domestic Violence: The Third
Annual Report to Congress Under the Violence
Against Women Act (July 1998) 16-17
U.S. Marshal’s Office, Code of Professional Respon-
sibility: Standards of Conduct (May 17, 1999)
(http://156.9.230.3/prt/policy/directive/web/99-18.htm) .. 29
U.S. Gen. Acct. Ofe.:
Federal Law Enforcement: Investigative Authority
and Personnel at 13 Agencies (GAO/GGD-96-154,
Sept. 1996) 11
Federal Law Enforcement: Investigative Authority
and Personnel at 32 Organizations (GAO/GGD-97-93,
Sept. 1996) 11
H. Voorhees, The Law of Arrest in Civil and Criminal
Actions (1904) 12, 13, 15, 18
H. Wilgus, Arrest Without A Warrant, 22 Mich. L.
Rev. 541 (1923-1924) passim
In the Supreme Court of the United States
No. 99-1408
GAIL ATWATER, ET AL., PETITIONERS
Vv.
CITY OF LAGO VISTA, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
This case presents the question under the Fourth Amend-
ment’s reasonableness clause whether police officers may
make warrantless arrests for misdemeanor offenses that are
punishable only by a fine or whether the arrest authority is
limited to misdemeanors that are punishable by imprison-
ment or that cause a breach of the peace. There are approxi-
mately 85 federal criminal offenses that are punishable only
by a fine. See App. A, infra. Federal law enforcement
officers are authorized by statute to make warrantless
arrests for any misdemeanors committed in their presence,
without any limitation to violations punishable by more than
a fine or to those that constitute a breach of the peace. See,
e.g., 16 U.S.C. 460/-6a(e) (authorizing arrest without a war-
rant for fine-only offenses committed in national parks or
federally administered recreation sites or facilities); 18
U.S.C. 3052, 3053. In addition, the United States frequently
prosecutes cases based on evidence that comes to light as the
result of arrests by state or local authorities enforcing their
own laws under their own policies. The United States
(1)
2
therefore has a significant interest in the resolution of this
case.
STATEMENT
1. Texas has made it a criminal offense for front-seat
passengers in a passenger vehicle to fail to wear safety belts
if the vehicle is equipped with such belts. Tex. Transp. Code
Ann. § 545.413(a) (West 1999 & Supp. 2000). Texas law also
criminalizes the failure of a driver to secure with a safety
belt any child between the ages of 4 and 15 who is riding in
the front seat of the vehicle. Id. § 545.413(b). Violation of
the law is punishable by a fine of not less than $25 or more
than $50.' Texas law authorizes, but does not require, law
enforcement officers to issue citations in lieu of arrest for
violations of the seatbelt law. Id. §§ 543.003-543.005.
2. In March 1997, petitioner Gail Atwater was driving
with her two children in the family’s pickup truck. Pet. App.
5la. Petitioner’s three-year-old son and five-year-old daugh-
ter accompanied her in the front seat. Ibid.; J. A. 20.”
Petitioner was not wearing a seatbelt, nor had she put
seatbelts on her children. Respondent Bart Turek, at that
time a City of Lago Vista police officer, witnessed the seat-
belt violations and stopped petitioner’s vehicle. According to
the allegations of the complaint, which must be accepted as
true at this stage, respondent Turek yelled at petitioner as
he approached the vehicle that “[w]e’ve met before” and
1 Federal law similarly criminalizes the failure of an operator and all
passengers to wear safety belts in any passenger car operated on federal
parkways or federal parkland. 36 C.F.R. 4.15. Failure to comply is
punishable by a fine of up to $5000 or six months’ imprisonment or both.
36 C. F. R. 1.3(a); 18 U.S.C. 3571(b)(7).
2 Although the district court described the children as “seated,” peti-
tioner Atwater’s affidavit indicates that both children were standing on
their seats, C.A. App. 702, and the complaint is not inconsistent with the
affidavit. J.A. 20. The police report indicates that petitioner’s son was
“standing in the passenger side of the truck and leaning against the dash-
board.” C.A. App. 420.
eS NS
3
You're going to jail.” Pet. App. 51a-52a; J. A. 20“ Respon-
dent then called for back-up and asked petitioner for her
license and insurance information. Pet. App. 52a. Petitioner
responded that she did not have them because her purse had
been stolen the day before. Respondent stated that he had
“heard that story two-hundred times” from stopped motor-
ists. J.A. 21; see also Pet. App. 52a. When petitioner asked
to take her children to a friend’s house nearby, respondent
replied, “[yJou’re not going anywhere.” Pet. App. 52a; J. A.
21. Petitioner’s friend then arrived and took the children to
her home. Ibid. After the children left, respondent Turek
handcuffed Atwater and took her to the local jail, where she
spent approximately one hour being processed and having
bail set. Pet. App. 2a, 52a; C.A. App. 423. In addition,
petitioner’s car was impounded. Pet. App. 52a. The arrest
report charged petitioner with driving without a seatbelt,
failing to restrain her children in seatbelts, driving without a
license, and failing to provide proof of insurance. Id. at 2a.
3. Petitioner and her husband filed suit under 42 U.S.C.
1983 against respondent Turek, the Chief of Police, and the
City of Lago Vista. Pet. App. 3a. The complaint alleges
denials of petitioner’s constitutional rights under the Fourth
and Fifth Amendments and violations of state law, and seeks
compensatory, special, and exemplary damages. J.A. 22-40.
The district court granted summary judgment for the re-
spondents (Pet. App. 50a-63a) on the ground that petitioners’
claims were “meritless,” id. at 51a, in light of petitioner
Atwater’s admission that her conduct violated the criminal
law and her failure to allege that she “was harmed or de-
tained in any way inconsistent with the law,” id. at 56a-57a.
3 Respondent Turek had previously stopped petitioner for what he
perceived to be a seatbelt violation, but then learned that, although peti-
tioner’s son was seated up on the vehicle’s armrest, he was wearing a
seatbelt. Pet. App. 30a.
4
4. A panel of the court of appeals reversed. Pet. App.
28a-49a. The court held that petitioner’s claim that respon-
dent Turek yelled at her and arrested her for the seatbelt
violations properly alleged an unreasonable seizure under
the Fourth Amendment. Id. at 33a. The panel also held that
respondent Turek was not entitled to qualified immunity
because “Supreme Court precedent clearly established” that
“an arrest for a first-time seat belt offense is indeed an ex-
treme practice” subject to a “balancing analysis to determine
the reasonableness of the police activity.” Id. at 44a.*
5. The en banc court of appeals reversed. Pet. App. la-
27a. Relying on this Court’s decision in Whren v. United
States, 517 U.S. 806 (1996) (Pet. App. 4a), the majority held
that an arrest based on probable cause is reasonable under
the Fourth Amendment except in those “rare” instances
where the arrest is “conducted in an extraordinary manner”
that is “unusually harmful to an individual’s privacy or even
physical interests,” ibid., such as the use of deadly force,
physical penetration of the body, or entry of the home, id. at
6a. Because Inleither party disputes that Officer Turek had
probable cause to arrest [petitioner]” and because “there is
no evidence in the record that Officer Turek conducted the
arrest in an ‘extraordinary manner, unusually harmful’” to
petitioner’s privacy interests, the court held that the arrest
was reasonable under the Fourth Amendment. Id. at 6a, 7a.
Judge Reynaldo Garza dissented on the ground that the
normal practice is to issue a citation for seatbelt offenses and
no reason was given for arresting petitioner. Pet. App. 8a-
lla. Judge Wiener dissented on the ground that, in his view,
before a police officer can constitutionally place an indivi-
dual under full custodial arrest, even with probable cause,
the officer must have a plausible, articulable reason for ef-
fecting such an intrusion,” id. at 20a, and that, in the absence
4 The panel also reinstated the claims against the City, but it affirmed
dismissal of the claims against the Chief of Police. Pet. App. 49a.
5
of such a reason, the arrest constitutes the infliction of “pun-
ishment” on the individual, id. at 18a. Judge Dennis dis-
sented on the ground that the Fourth Amendment incor-
porates the common-law prohibition on arrests for misde-
meanors that do not involve a breach of the peace. Id. at
20a-27a.
SUMMARY OF ARGUMENT
Petitioner’s arrest for violation of a state criminal law sat-
isfied the requirements of the Fourth Amendment. The
arrest was supported by probable cause to believe that peti-
tioner had violated the criminal law; indeed, she has never
denied the violations nor disputed the existence of probable
cause. Because probable cause existed and the seizure was
not effected in an extraordinary or unusual manner, the
arrest was reasonable within the meaning of the Fourth
Amendment.
1. There is no basis for concluding that the Fourth
Amendment permits a warrantless arrest for a misdemeanor
only if the violation involves a breach of the peace. The
common law expressly recognized that the arrest authority
of police could be expanded by statute to include arrests like
the one at issue in this case, and the longstanding practice of
the federal government and every State confirms that
understanding. Moreover, the phrase “breach of the peace”
itself lacked an established meaning at common law, such
that, even if it were incorporated into the Fourth Amend-
ment, it would not restrict arrests in the manner advocated
by petitioner. Indeed, this Court has recognized that the
congressional immunity from arrest for a “breach of the
peace” found in Article I, Section 6 of the Constitution em-
braces all violations of the criminal law. Finally, the reason-
ableness of an arrest under the Fourth Amendment should
not turn on malleable and diverse legislative classifications
of crimes as misdemeanors or felonies, or on variable judicial
definitions of “breach of the peace.”
6
2. The Fourth Amendment permits a custodial arrest
even though the law at issue is punishable only by a fine.
The common law did not foreclose arrests for fine-only
offenses, and established practice permits them. Further-
more, the propriety of an officer’s decision to arrest based on
probable cause—and his potential liability for money
damages—should not vary based on the punishment that
ultimately ensues weeks, months, or years later. And there
is no basis for concluding that a jurisdiction’s decision to
penalize a violation by a sanction other than imprisonment
means that the government lacks a strong interest in effec-
tive enforcement of that law. Where probable cause exists, a
jurisdiction’s decision to enforce the criminal law through a
custodial arrest is not constitutionally suspect simply
because a less intrusive enforcement method may arguably
be available.
ARGUMENT
The Fourth Amendment, made applicable to the States
through the Fourteenth Amendment, Payton v. New York,
445 U.S. 573, 576 (1980), provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no War-
rants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. Amend. IV. Outside the home, the Fourth
Amendment does not require a warrant in order to justify an
arrest based on probable cause. Payton, 445 U.S. at 590-591;
Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Rather, a police
officer’s “on-the-scene assessment of probable cause pro-
vides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the admin-
istrative steps incident to arrest.” Id. at 113-114.
7
This Court has never invalidated a routine arrest for a
criminal offense based on probable cause. To the contrary,
the Court recently reaffirmed that the “result of [the Fourth
Amendment’s reasonableness inquiry] is not in doubt where
the search or seizure is based upon probable cause.” Whren
v. United States, 517 U.S. 806, 817 (1996); see also Brown v.
Texas, 443 U.S. 47, 50 (1979) (balancing of public and indivi-
dual’s interests is reserved for “seizures that are less intru-
sive than a traditional arrest”); Dunaway v. New York, 442
U.S. 200, 208 (1979) (the “long-prevailing standardl]“ of
probable cause embodiels] the best compromise that has
been found for accommodating [the] often opposing interests
in safeguard[ing] citizens from rash and unreasonable inter-
ferences with privacy and in seek[ing] to give fair leeway for
enforcing the law in the community’s protection. The stan-
dard of probable cause thus representls] the accumulated
wisdom of precedent and experience as to the minimum
justification necessary to make the kind of intrusion involved
in an arrest ‘reasonable’ under the Fourth Amendment.”)
(internal quotation marks and citation omitted).
Indeed, the only cases in which this Court has applied a
balancing analysis to arrests based on probable cause have
been when the search or seizure was effectuated in an “ex-
traordinary manner, unusually harmful to an individual’s pri-
vacy or even physical interests—such as, for example, sei-
zure by means of deadly force, unannounced entry into a
home, entry into a home without a warrant, or physical pene-
tration of the body.” Whren, 517 U.S. at 818 (citations
omitted); see also Dunaway, 442 U.S. at 208 (probable cause
standard “applie[s] to all arrests, without the need to balance
the interests and circumstances involved in particular situa-
tions”).
If the allegations of the complaint are subsequently shown
to be true, there would be little question that respondent
Turek behaved in an inappropriate and unprofessional man-
ner. But the arrest of Gail Atwater was nevertheless per-
8
missible under the Fourth Amendment. Petitioners’ and
their amici’s effort to discard the long-established probable
cause standard for arrests finds no basis in the Fourth
Amendment, this Court’s precedents, or the practicalities of
law enforcement.
I. WARRANTLESS MISDEMEANOR ARRESTS
BASED ON PROBABLE CAUSE ARE REASON-
ABLE UNDER THE FOURTH AMENDMENT RE-
GARDLESS OF WHETHER THE OFFENSE CON-
STITUTES A “BREACH OF THE PEACE”
A. No Source Of Law Supports Imposing On The
Fourth Amendment A “Breach Of The Peace”
Requirement For Misdemeanor Arrests
Petitioners (Br. 13-20) and their amici (Cato Inst. Br. 3-7;
NACDL Br. 15-17; ACLU Br. 20-21) argue that the arrest of
petitioner Atwater was unreasonable because the common
law generally prohibited warrantless arrests for misdemean-
ors that did not involve breaches of the peace. It is true that
the common law rule for warrantless misdemeanor arrests
was!] sometimes expressed” as limited to “when a breach of
the peace has been committed in [the officer's] presence or
there is reasonable ground for supposing that a breach of
peace is about to be committed or renewed in his presence.”
Carroll v. United States, 267 U.S. 132, 157 (1925) (quoting 9
Halsbury’s Laws of England (Halsbury) pt. III, § 612, at 299
(1st ed. 1909)) (emphasis added). But that statement of the
common law does not suggest that a parallel rule should
exist under the Fourth Amendment. The common law itself,
this Court’s cases, and a pattern of arrest authorization
statutes make clear that Congress and the States may
expand upon the common law arrest authority.
1. The common law specifically recognized that an offi-
cer’s arrest authority could be expanded by statute. 10
Halsbury § 632, at 342 (3d ed. 1955) (“An arrest without a
warrant may be under a power conferred by common law or
by statute.”). Statutorily conferred arrest authority was not
confined to breaches of the peace. For example, night
watchmen could “arrest all offenders, and particularly night-
walkers, and commit them to custody till the morning.” 4 W.
Blackstone, Commentaries on the Laws of England 289
(1769) (emphasis added); see also 2 W. Hawkins, A Treatise
of Pleas of the Crown ch. 13, preface & § 5, at 79-80 (1795)
(authority of night watchmen to arrest “any Stranger * * *
until Morning,” without “Process from some Court of
Record”). Under the Pedlar’s Act of 1871, a police officer
could arrest a pedlar who “refuses to show his certificate or
has no certificate,” 10 Halsbury § 641, at 348 n.s, and under
the Hawkers Act of 1888, a “peace officer may arrest a
person found hawking without a license or not producing a
licence on demand,” id. § 642, at 350 n.f. Officers could also
arrest without a warrant “in connexion with the protection
of * * * musical copyright.” Id. § 642, at 350.
Accordingly, “it is generally recognized today that the
common law authority to arrest without a warrant in misde-
meanor cases may be enlarged by statute.” Welsh v. Wis-
consin, 466 U.S. 740, 756 (1984) (White, J., dissenting) (inter-
nal quotation marks omitted); H. Wilgus, Arrest Without A
Warrant, 22 Mich. L. Rev. 541, 550 (1923-1924) (Wilgus)
(“The states may, by statute, enlarge the common law right
to arrest without a warrant, and have quite generally done
so or authorized municipalities to do so, as for example, an
officer may be authorized by statute or ordinance to arrest
without a warrant for various misdemeanors and violations
of ordinances, other than breaches of the peace, if committed
in his presence.”) (citing cases) (footnotes omitted)); id. at
705-706.°
5 See also Oleson v. Pincock, 251 P. 23, 25 (Utah 1926); Conrad v.
Lengel, 144 N.E. 278, 278 (Ohio 1924); Burroughs v. Eastman, 59 N.W.
817, 819-820 (Mich. 1894); White v. Kent, 11 Ohio St. 550, 554 (1860); 10
10
2. This Court’s descriptions of the common law rule for
misdemeanor arrests, moreover, have generally omitted the
breach of the peace limitation and have focused, instead, on
the requirement that the misdemeanor be committed in the
officer’s presence. See, e.g., Payton, 445 U.S. at 590 n.30
(“The cases construing the Fourth Amendment thus reflect
the ancient common-law rule that a peace officer was per-
mitted to arrest without a warrant for a misdemeanor or fel-
ony committed in his presence.”); United States v. Watson,
423 U.S. 411, 418 (1976) (same).’
Likewise, most lower courts that have addressed the issue
have held that the Fourth Amendment does not bar war-
rantless misdemeanor arrests, regardless of whether the
offense constitutes a breach of the peace or is punishable
only by fine,“ The common law “breach of the peace”
limitation that petitioners and their amici suggest should be
incorporated into the Fourth Amendment thus has not been
Halsbury §§ 641, 642, at 347-351 (discussing statutory powers of police to
arrest without a warrant).
6 The requirement that the misdemeanor be committed in the officer's
presence is not at issue in this case. Cf. Welsh, 466 U.S. at 756 (White, J.,
dissenting) (“But the requirement that a misdemeanor must have oc-
curred in the officer’s presence to justify a warrantless arrest is not
grounded in the Fourth Amendment.”); 3 W. LaFave, Search and Seizure
§ 5.1(b), at 21 (3d ed. 1996).
7 See also Johnson v. United States, 333 U.S. 10, 15 (1948); Carroll,
267 U.S. at 156 (“The usual rule is that a police officer may only
arrest without a warrant one guilty of a misdemeanor if committed in his
presence. John Bad Elk v. United States, 177 U.S. 529, 534 (1900) (IAln
officer, at common law, was not authorized to make an arrest without a
warrant, for a mere misdemeanor not committed in his presence.”); Kurtz
v. Moffitt, 115 U.S. 487, 498-499 (1885); see also Davis v. United States, 328
U.S. 582, 614 (1946) (Frankfurter, J., dissenting).
8 See Higbee v. City of San Diego, 911 F.2d 377, 379-380 (9th Cir.
1990); United States v. Trigg, 878 F. 2d 1037, 1041 (7th Cir. 1989); Fisher v.
Washington Metro. Area Transit Auth., 690 F 2d 1133, 1139 & n.6 (4th Cir.
1982); Street v. Surdyka, 492 F.2d 368, 370-373 (4th Cir. 1974). But see
Staker v. United States, 5 F. 2d 312, 314 (6th Cir. 1925).
11
treated as an essential aspect of the common law arrest
power.
3. The breach of the peace limitation on misdemeanor
arrests also finds no support in the legislation of Congress or
the States. While Congress has generally retained the in
the presence“ requirement for misdemeanor arrests by
federal law enforcement officers, no federal statute confines
misdemeanor arrests to breaches of the peace. See, e.g., 18
U.S.C. 3052 (FBI agents authorized to “make arrests with-
out warrant for any offense against the United States com-
mitted in their presence”), 3053 (same, for U.S. marshals and
deputies), 3056(c)(1)(C) (same, for Secret Service)“ Be-
cause there is a strong presumption of constitutionality due
to an Act of Congress, especially when it turns on what is
reasonable, Watson, 423 U.S. at 416 (quotation marks
omitted), Congress’s consistent omission of a breach of the
See also 16 U.S.C. 460/-6a(e) (authorizing arrest without a warrant
for fine-only offenses committed in national parks or federally admin-
istered recreation sites or facilities); 18 U.S.C. 3061(a)(2) (postal inspectors
may “make arrests without warrant for offenses against the United States
committed in their presence”), 3063(a)(3) (same for Environmental Pro-
tection Agency officers); 19 U.S.C. 1589a(3) (same for customs officers); 21
U.S.C. 878(a)(3) (same for Drug Enforcement Administration officers); 25
U.S.C. 2803(3)(A) (Bureau of Indian Affairs officers may “make an arrest
without a warrant for an offense committed in Indian country if * * * the
offense is committed in the presence of the employee”); 28 U.S.C. 566(d)
(in protecting courts and federal judicial officers, a U.S. marshal may
“make arrests without warrant for any offense against the United States
committed in his or her presence”); see generally U.S. Gen. Acct. Ofe.,
Federal Law Enforcement: Investigative Authority and Personnel at $2
Organizations App. II & III (GAO/GGD-97-98, Sept. 1996); U.S. Gen.
Acct. Ofe., Federal Law Enforcement: Investigative Authority and Per-
sonnel at 13 Agencies App. I & II (GAO/GGD-96-154, Sept. 1996). Con-
gress has also authorized certain law enforcement officers to effect war-
rantless arrests for specific offenses, some of which are not felonies. See,
e.g., 16 U.S.C. 668b(a), 670j(b)(1), 690e(a), 706, 727(a), 742j-1(d), 831¢-3(b),
916g, 959(d)(1), 971f(a\(2), 972g(d), 1172(d), 1338(b), 1377(d)(1), 1540(e)(3),
3375(b); 21 U.S.C. 372(e)(4); 22 U.S.C. 1978(f)(4)(A); 33 U.S.C. 446, 452,
1321(m)(1)(B); 50 U.S.C. App. 2411(a); 16 U.S.C. 668dd(g) (Supp. IV 1998);
16 U.S.C. 5506(c)(1)(A) (1994 & Supp. IV 1998).
12
peace requirement for warrantless misdemeanor arrests
counsels strongly against incorporating such a limitation into
the Fourth Amendment.
All fifty States and the District of Columbia, likewise,
authorize at least some (if not all) of their law enforcement
officers to execute warrantless misdemeanor arrests in the
absence of a breach of the peace. See, e.g., Ala. Code § 15-10-
3(a)(1) (1995 & Supp. 1999) (authorizing warrantless arrest
for any “public offense” committed in the presence of the
officer); Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp.
1999) (authorizing arrest without a warrant when a misde-
meanor has been committed in the officer’s presence)“ The
Model Code of Prearraignment Procedure similarly author-
izes warrantless arrests where the officer has reasonable
cause to believe that the person has committed “a misde-
meanor or petty misdemeanor in the officer’s presence.”
Model Code of Prearraignment Procedure § 120.1, at 13
(1975). Academic scholars have also long acknowledged the
propriety in this country of warrantless arrests for misde-
meanors even if they do not amount to a breach of the
11
peace.
4. In some contexts, common law limitations that take
root in this country may suggest that a similar constraint
applies under the Fourth Amendment. See Wilson v.
Arkansas, 514 U.S. 927, 933 (1995) (common law “knock and
announce” principle incorporated into Fourth Amendment in
10 We have collected representative state statute in an appendix to
this brief. See App. B, infra. See also W. Schroeder, r/urrantless Misde-
meanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 847
(1993).
1! See, e., H. Voorhees, The Law of Arrest in Civil and Criminal
Actions § 131, at 78-79 (1904) (“[B]y authority of statute, city charter, or
ordinance, lan officer] may arrest without a warrant, one who, within his
, commits a misdemeanor other than a breach of the peace, as,
for example, one who is violating a city ordinance, without breaking the
peace.”) (footnotes omitted); id. § 146, at 85; Wilgus 541, 550; 3 W. LaFave,
supra, § 5.1(b), at 12-23.
13
part because the rule “was woven quickly into the fabric of
early American law”). But this Court “has not simply frozen
into constitutional law those law enforcement practices that
existed at the time of the Fourth Amendment’s passage.”
Tennessee v. Garner, 471 U.S. 1, 13 (1985) (quoting Payton,
445 U.S. at 591 n.33); see also Payton, 445 U.S. at 600 (noting
that “custom and contemporary norms necessarily play
* * * a large role in the constitutional analysis” of what is
“reasonable” under the Fourth Amendment) (emphasis
added); Warden v. Hayden, 387 U.S. 294, 300-310 (1967) (re-
jecting common-law prohibition against searches for “mere
evidence”).
In this context, where the common law itself acknowl-
edged that legislatures were not bound by a breach of the
peace limitation, and where “the judgment of the Nation and
Congress has for so long been to authorize warrantless
public arrests on probable cause” for misdemeanors, Watson,
423 U.S. at 423, transposition of a breach of the peace
limitation into the Fourth Amendment is unwarranted.
5. Even if some form of the “breach of the peace” limita-
tion had taken root in the Fourth Amendment, the phrase
“breach of the peace” had different meanings at common law.
While some definitions focused (like petitioners and their
amici) on conduct that threatened violence, disorder, or
disruption, the common law at other times employed “breach
of the peace” to refer to all violations of the criminal law.
See, e.g., H. Voorhees, The Law of Arrest in Civil and
Criminal Actions § 117, at 72 (1904) (“a breach of the public
peace is the invasion of the security and protection which the
law affords every citizen”); Wilgus 574 (under the statute of
Charles II, “it was held that every indictable offense was
constructively a breach of the peace * * * [and] disobeying
14
any act of parliament was a breach of the peace”) (footnotes
omitted).
Indeed, this Court has adopted the broader construction
of “breach of the peace” in interpreting the legislative immu-
nity from arrest granted Members of Congress by Article I,
Section 6 of the Constitution, which in relevant part pro-
vides: “The Senators and Representatives * * * shall in all
Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Ses-
sion of their respective Houses, and in going to and return-
ing from the same.” As this Court has explained:
[When the Constitution was written the term “breach of
the peace” did not mean, as it came to mean later, a mis-
demeanor such as disorderly conduct but had a different
18th century usage, since it derived from breaching the
King’s peace and thus embraced the whole range of
crimes at common law.
United States v. Brewster, 408 U.S. 501, 521 (1972).”
12 See also City of Boerne v. Flores, 521 U.S. 507, 539 (1997) (Scalia, J.,
concurring) (citing English cases to the effect that “[E]very breach of a
law is against the peace.”); id. at 540 & n.2; City of Akron v. Mingo, 160
N. E. 2d 225, 228-231 (Ohio 1959); State ex rel. Thompson v. Reichman, 188
S.W. 225, 228 (“The term ‘breach of the peace’ is generic and includes all
violations of public peace or order, or acts tending to the disturbance
thereof.”), on reh’g, 188 S.W. 597, 602 (Tenn. 1916) (“{[WJhat can be more
logical than to say that every violation of a criminal law is a breach of the
peace of the state?”). The common law also recognized that the crimes
constituting a breach of the peace could be expanded by statute. Wilgus
575 (noting that the phrase had been expanded to include, for example,
desecrating the national flag and transporting intoxicating liquor);
Reichman, 188 S.W. at 607.
13 See also Williamson v. United States, 207 U.S. 425, 444 (1908)
(“Now, as all crimes are offenses against the peace, the phrase ‘breach of
the peace’ would seem to extend to all indictable offenses, as well those
which are in fact attended with force and violence, as those which are only
constructive breaches of the peace of the government, inasmuch as they
violate its good order.”); J. Story, Commentaries on the Constitution of
the United States § 438, at 308 (Carolina Academic Press 1987) (same).
15
Petitioners’ argument thus attempts to import into one
provision of the Constitution an interpretation of “breach of
the peace” that is quite different from the meaning the
Framers ascribed to that phrase when drafting Article I. At
a minimum, the established constitutional definition and
other common law authority demonstrate that the meaning
of “breach of the peace” was sufficiently unsettled to pre-
clude elevating petitioners’ restrictive reading of the phrase
to the level of constitutional rule. See Payton, 445 U.S. at
598.
B. Constitutionalizing Restrictions On Probable-Cause-
Based Arrests That Rest On The Common Law Dis-
tinction Between Felonies And Misdemeanors Would
Be Unworkable
Petitioners’ and their amici’s effort to impose constitu-
tional limits on misdemeanor arrests is predicated upon an
anachronistic distinction between felonies and misdemeanors
that has little relevance to modern criminal law. At common
law, felonies consisted of crimes punishable by death or for-
feiture of land. See 1 J. Stephen, A History of the Criminal
Law of England 458 (1883).* The term “misdemeanor” com-
prised all remaining crimes except treason. See, e.g., Wilgus
572.
Because of the statutory codification of criminal law in
most American jurisdictions, many of the crimes considered
to be misdemeanors at common law—such as assault, at-
tempted felonies, forgery, and kidnaping—are now consid-
Petitioners suggest (Br. 13-17) that the common law permitted warrant-
less arrests only for felonies and breaches of the “Public Peace,” and that
the term “breach of the king’s peace,” which encompassed all criminal
laws, was not applied in delineating the power to arrest. The analysis in
Brewster, however, which was concerned with a constitutional “privilege(]
against Arrest,” did not draw that distinction. See also Voorhees § 117, at
72 (all violations of the criminal law are “breach{es] of the public peace”).
M4 See also Garner, 471 U.S. at 13-14; Kurtz, 115 U.S. at 499; Voorhees
§ 115, at 70-71; Wilgus 569.
16
ered felonies. See, e.g., Garner, 471 U.S. at 14, 20 (statutory
changes in the classification of crime have “made the as-
sumption that a ‘felon’ is more dangerous than a misde-
meanant untenable”; distinction is “highly technical” and
“arbitrary”). Indeed, “{iJn this country there is no generally
accepted meaning of the[] terms” felony and misdemeanor
“except as given by statute.” Wilgus 570; Carroll, 267 U.S.
at 158 (“Under our present federal statutes, [the distinction
between felonies and misdemeanors] is much less important
and Congress may exercise a relatively wide discretion in
classing particular offenses as felonies or misdemeanors.”).””
Petitioner’s proposed constitutional rule, if construed lit-
erally, would thus place undue weight on the vagaries of leg-
islative classifications of crime. As a result, the same crime
committed by the same defendant would constitutionally be
subject to warrantless arrest in one jurisdiction and to only a
summons or citation in another jurisdiction. For example,
stalking by telephone or letter, or violation of a protective
order in a domestic violence case (neither of which would
necessarily have been considered a breach of the public
peace under petitioners’ definition) is treated as a felony in
some States and a misdemeanor in others. See U.S. Dep’t of
Justice, Office of Justice Programs, Stalking and Domestic
Violence: The Third Annual Report to Congress Under the
15 See also Hammer v. Gross, 932 F.2d 842, 853 (9th Cir.) (en banc)
(Kozinski, J., concurring) (noting that, while California classifies drunk
driving as a misdemeanor, impersonating a bride or bridegroom is a fel-
ony), cert. denied, 502 U.S. 980 (1991); Wilgus 573; 1 Stephen, supra, at
489 (“A large number of misdemeanours were created by statute at
different times, but especially in the eighteenth and nineteenth centuries,
which differ in no essential respect from the common crimes distinguished
as felonies.”); 2 Stephen, supra, at 189, 193 (“(S]ince the substitution of
milder punishments for death, the distinction [between felonies and mis-
demeanors] has become unmeaning and a source of confusion, especially as
many offences have been made misdemeanours by statutes, which render
the offender liable to punishments as severe as those which are now
usually inflicted upon persons convicted of felony.”).
17
Violence Against Women Act 24-26 & App. B (July 1998)
(chronicling state legislation). And the State of New Jer-
sey appears to classify most of its crimes as misdemeanors.
N.J. Stat. Ann. §§ 2C:1-4, 2C:1-5 (West 1995). This Court
should be hesitant to constitutionalize legislative labels that
are often the “result[] of evolution or accident” ( ilgus 568)
and to adopt a rule under which “the search and seizure pro-
tections of the Fourth Amendment are so variable” (Whren
517 US. at 815).
The misdemeanor/felony distinction would also prove diffi-
cult to apply by police officers on the street. Frequently the
line between felony and misdemeanor conduct is dependent
upon the offender’s prior criminal history or the amount of
money or of a drug at issue. See, e.g., 18 U.S.C. 510 (1994 &
Supp. IV 1998) (forgery cf Treasury checks under $500 is a
misdemeanor); 21 U.S.C. 841, 842, 844 (1994 & Supp. IV
1998). A police officer who witnesses the forgery of a Social
Security check or an individual possessing an unknown quan-
. 16 See also U.S. Dep’t of Justice, Bureau of Justice Assistance, Re-
gional Seminar Series on Developing and Implementing Antistalking
Codes 53-55 (Table 9) June 1996); Institute for Law and Justice, Domestic
Violence: A Review of State Legislation Defining Police and Prosecution
Duties and Powers (Domestic Violence) 2, 7-10, 25 (Mar. 1998), Institute
for Law and Justice, State Stalking Legislation: A Status Report—1997
(State Stalking Legislation), at 5 (Exh. 1) and Apps. 1 & 2 (Mar. 1998).
At least 28 States and the District of Columbia, moreover, mandate or
strongly encourage arrests in stalking and domestic violence cases as a
matter of policy. Petitioner’s proposed construction of the Fourth Amend
ment could imperil some of those important law enforcement policies and
programs. State Stalking Legislation 19 (Exh. 4) (documenting States
that authorize arrests without a warrant for stalking); Domestic Violence
12 (“Today all but 1 state authorizes warrantless arrests of domestic
violence offenders based solely on a probable cause determination.” and
Un 20 states and the District of Columbia police arrest is required when
the officer determines that probable cause exists.”), 13, 76 (48 states
authorize warrantless arrests based on a probable cause determination
that a protective order has been violated). The laws of thirteen States
explicitly bar police from simply issuing citations or appearance tickets in
lieu of a formal arrest in domestic violence cases. Domestic Violence 16.
18
tity of drugs (neither of which would necessarily qualify as a
breach of the peace in petitioners’ view) will not know
whether a warrantless arrest is permitted until after the
offender is seized, the evidence collected, and the defen-
dant’s criminal history checked. See Berkemer v. McCarty,
468 U.S. 420, 430-431 (1984) (“The police often are unaware
when they arrest a person whether he may have committed
a misdemeanor or a felony. * * * Indeed, the nature of his
offense may depend upon circumstances unknowable to the
police, such as whether the suspect has previously com-
mitted a similar offense or has a criminal record of some
other kind.”) (footnote omitted).
Nor can it be assumed that misdemeanors that do not
amount to a breach of the peace are less serious crimes for
which enforcement can be relaxed at little social cost. The
forgery of a poor, elderly person’s $400 Social Security check
(18 U.S.C. 495, 510 (1994 & Supp. IV 1998)) may distress and
financially embarrass that victim. An officer’s arrest of an
individual who mutilates federal bank notes by removing the
corner dollar values (18 U.S.C. 333) may expose a counter-
feiting operation that would cost the taxpayers a significant
amount of money. And domestic violence that does not rise
to petitioners’ definition of a common law breach of the peace
(such as where the victim of a battery does not scream or
otherwise disturb the public, see Voorhees § 121, at 74) may
nevertheless inflict considerable suffering on the victim.
II. THE FOURTH AMENDMENT PERMITS ARRESTS
BASED ON PROBABLE CAUSE FOR OFFENSES,
INCLUDING TRAFFIC OFFENSES, THAT ARE
NOT PUNISHABLE BY INCARCERATION
Petitioners’ alternative contention (Br. 11-13, 23-26) is
that, even when the police possess probable cause, they may
not effectuate an arrest if the authorized punishment for the
violation is a fine. The fact that an offense is not punishable
by incarceration, however, does not strip the offense of its
19
criminal character. Nor does it diminish the governmental
interest in ensuring compliance with the law and the imposi-
tion of authorized penalties.
A. Fines Have Long Been An Important Means Of
Enforcing The Criminal Law
Fines have a long history in the criminal law. In 1413,
persons found guilty of forging property deeds were
required to “make fine and ransom at the king’s pleasure.” 3
Stephen, supra, at 181. Offenses as varied as “cutting off the
ears of the king’s subjects,” burning carts loaded with coal,
bribery in parliamentary elections, and the unlawful
collection of interest were, for a period of time, punishable
only by a fine. Id. at 189, 198, 253. Cases specifically
recognized that “ordinances punishing by fine” certain types
of misconduct “were penal laws.” Wilgus 551 n.60 (citing
County of Wayne v. City of Detroit, 17 Mich. 390 (1868), and
People v. Controller, 18 Mich. 445, 576 (1869)).
In the modern day, government continues to rely upon
fines as an important means of punishing crime. Congress
has created more than 85 criminal offenses for which a fine is
the only authorized sanction. See, e.g., 14 U.S.C. 84 (inter-
ference with aids to navigation); 15 U.S.C. 1338 (eigarette
labeling and advertising); 16 U.S.C. 422d, 423f (vandalism at
national monuments and military parks); 18 U.S.C. 243 (ex-
clusion of jurors on account of race or color), 244 (diserimina-
tion against person wearing uniform of the armed forces),
475, 489 (imitating or reproducing U.S. obligations, securi-
ties, or coins); see also App. A, infra.
The arguments of petitioners and their amici assume that
the decision to withhold incarceration as punishment for a
crime diminishes the seriousness of the offense. While the
type of sanction authorized is an important indication of
seriousness, Welsh, 466 U.S. at 754 n.14; see Lewis v. United
States, 518 U.S. 322, 326 (1996), the sanction chosen by gov-
ernment cannot be the sole, dispositive factor in evaluating
20
the public’s interest in enforcement. The selection of a
punishment for a crime reflects a complicated judgment
about the nature of the crime, its cost to society, and the best
means of deterring violations, promoting rehabilitation, and
other factors. For example, many prosecutors’ offices have
adopted diversion programs for first-time domestic violence
and drug offenders. First-time offenders are given
probation and required to meet a variety of educational,
employment, and counseling requirements, in lieu of
incarceration. See also Bearden v. Georgia, 461 U.S. 660, 662
(1983) (discussing the Georgia First Offender’s Act). It is
true that incarceration remains a potential penalty in the
diversion-program cases. But that does not significantly
distinguish the case at hand, because individuals who refuse
to pay the fine for an ordinance violation (for reasons other
than poverty) often can be jailed. See, e.g., 65 Ill. Comp.
Stat. Ann. § 5/1-2-1 (West 1996); Bearden, 461 U.S. at 668;
Tate v. Short, 401 U.S. 395, 400 (1971).
A decision to limit the sanction for a violation to a fine
thus does not translate into a lack of interest in or commit-
ment to enforcing the law. Given the exploding prison popu-
lation and the generally high recidivism rates for released
prisoners,“ governments that experiment with alternatives
to incarceration, such as fines, should not find their hands
tied in enforcing and implementing those alternative sanc-
tions. Nor should the Fourth Amendment categorically
declare that such experimentation, as a matter of constitu-
tional law, reflects such a diminished community interest in
law enforcement that probable cause arrests are imper-
missible.
17 See U.S. Bureau of Justice Statistics, Prison Statistics (1999), avail-
able at http://www.ojp.usdoj.gov/bjs/prisons.htm; U.S. Bureau of Justice
Statistics, Survey of State Prison Inmates 11 (1991); U.S. Bureau of
Justice Statistics, Offenders Returning to Federal Prison, 1986-s7 (Sept.
2000).
21
B. The Fourth Amendment Permits Seizures For Offenses
Punishable Only By Fine
This Court’s decisions have recognized that the Fourth
Amendment does not preclude seizures where the offense is
not punishable by incarceration. Stops for traffic violations
have long been permitted without reference to the potential
penalty for the infraction. See, eg, Pennsylvania v.
Mimms, 434 U.S. 106, 107 (1977) (driving with expired li-
cense plate). Recently, in Whren v. United States, supra
this Court unanimously rejected an effort to require more
than probable cause to justify a seizure for a “civil” traffic
violation, 517 U.S. at 808. The petitioners in Whren argued
that, in analyzing the reasonableness of the seizure, courts
should factor in the purportedly diminished governmental
interest in enforcing “minor traffic infractions.” Id. at 816-
817. While acknowledging “in principle” that every Fourth
Amendment case entails a balancing of relevant factors, the
Court held that “the result of that balancing is not in doubt
where the search or seizure is based upon probable cause.”
Id. at 817. The officer’s “probable cause to believe the law
has been broken” necessarily “‘outbalances’ private interest
in avoiding police contact.” Id. at 818."
' The Court ruled that actual balancing is
reserved for those
where probable cause is absent or the seizure is “conducted in an extra.
ordinary manner, unusually harmful to an individual's privacy or even
physical interests. Whren, 517 U.S. at 818. Such extraordinary searches
or seizures include surgical intrusion (Winston v. Lee, 470 U.S. 753 (1985))
the use of deadly force (Tennesse v. Garner, supra), or warrantless or
——— = — the home (Wilson v. Arkansas, supra; Welsh
None of those activities i
nor anything remotely like them
22
The Court rejected the Whren petitioners’ objections that
traffic laws are so multitudinous and inadvertently violated
as to render the stops “extraordinary,” stating:
[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 ordinasy measure of the lawfulness of en-
forcement. And even if we could identify such exorbitant
codes, we do not know by what standard (or what right)
we would decide, as petitioners would have us do, which
particular provisions are sufficiently important to merit
enforcement.
517 U.S. at 818-819.
This case involves a short custodial arrest, and Whren
involved a stop. But both qualify as seizures under the
Fourth Amendment. Whren, 517 U.S. at 809-810; Watson,
423 U.S. at 414- 424. Furthermore, the extent of the seizure
was not a factor in the Whren Court’s analysis precisely
because such balancing was deemed unnecessary for routine
seizures based on probable cause. See 517 U.S. at 817; see
also Robbins v. California, 453 U.S. 420 450 (1981) (Stevens,
J., dissenting) (“As a matter of constitutional law, however,
any person lawfully arrested for the pettiest misdemeanor
may be temporarily placed in custody.”) (footnote omitted),
overruled, United States v. Ross, 456 U.S. 798 (1982).
Surely, here, where a violation of the criminal law is in-
volved, as much as for Whren’s civil violation, “there is no
realistic alternative to the traditional common-law rule that
probable cause justifies a search and seizure,” and so “infrac-
tion itself” should remain “the ordinary measure of the
lawfulness of enforcement.” Whren, 517 U.S. at 818-819.”
2° In Welsh, the Court held that a State’s classification of an offense as
noncriminal and the modest sanction imposed were relevant in assessing
whether officers could make a warrantless arrest in the home. 466 U.S. at
752-754. Whren, however, makes clear that, for routine seizures based on
A custodial arrest may serve valid purposes even where
the authorized penalty upon conviction is not incarceration.
The police may need to preserve evidence, confirm the
suspect’s identity, defuse and control a situation, or abate a
continuing violation. Jurisdictions that mandate or encour-
age arrests of individuals who violate domestic violence pro-
tective orders, shoplifters, or runaways may consider their
arrest policy part of a larger law enforcement strategy de-
signed to cure minor violations before a pattern of criminal-
ity develops. Furthermore, governments may legitimately
and reasonably determine that their officers should not be
forced to make spot decisions in the heat of an encounter
about the reliability of a suspect’s identification, promise to
appear in court, or promise not to repeat the offense.
Relatedly, jurisdictions may reasonably determine, for a
variety of reasons, that officers should not be required to
process paperwork and both determine the appropriateness
of and collect cash bonds at the scene of an arrest. Those
purposes justify the arrest even where the legislature does
not deem it necessary to punish violators upon conviction
with incarceration.
Nor, contrary to the argument of Judge Wiener in dissent
below (Pet. App. 18a, 20a), does an arrest and its attendant
processing at a police station entail the unconstitutional
infliction of “punishment” on defendants facing fines. This
Court has long recognized that 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.” Gerstein, 420 U.S. at 113-114; see
also United States v. Salerno, 481 U.S. 739, 749 (1987) (“If
the police suspect an individual of a crime, they may arrest
and hold him until a neutral magistrate determines whether
probable cause outside the home, such considerations play no part in the
constitutional analysis. 517 U.S. at 818; see also Schmerber v. California,
384 U.S. 757, 766-772 (1966).
24
probable cause exists.”). Arrest and booking thus represent
not punishment, but the admnistrative processing of a
criminal suspect—a type of seizure that is reasonable, within
the meaning of the Fourth Amendment, if predicated on
probable cause. And the government’s authority to initiate
the criminal process has never been held to depend upon the
type of punishment authorized for the offense charged. .
Indeed, this Court has generally characterized even sig-
nificant periods of pretrial detention as a “regulatory re-
straint,” rather than punishment. See Bell v. Wolfish, 441
U.S. 520, 537 (1979); see also Salerno, 481 U.S. at 746 (“[Tyhe
mere fact that a person is detained does not inexorably lead
to the conclusion that the government has imposed
punishment.”); id. at 748 (pretrial detention under the Bail
Reform Act “is regulatory in nature”). In light of the
Court’s conclusion that the lengthy and intrusive forms of
detention in Bell and Salerno do not constitute punishment,
the suggestion that the one hour petitioner Atwater spent
being administratively processed at the station house
constituted punishment fails.”
21 See Michigan v. Summers, 452 U.S. 692, 702-708 (1981); Higbee, 911
Fa 30 Pai wer — Fagen Pacey me
taken to jail to be booked and p in yh
— . ———r—rðĩ3zn. Gian tev —.
purpose, arrest for violation of liquor laws is permissible even though
imprisonment may not be available as punishment); Wilgus 543 (an arrest
eaten — —5 : —
he may be brought into the proper answer j
— — — marks omitted); W. LaFave, Arrest: The
Decision to Take a Suspect into Custody 186-189 (1965); 4 Blackstone,
supra at 286; cf. Ehrlich v. Giuliani, 910 F.2d 1220, 1223 (4th Cir. 1990)
(“One of the most important duties of a prosecutor pursuing a criminal
ing is to ensure that defendants * * * are present at trial.”);
Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983) (arrest brings the
subject before the court and subjects him to its immediate authority,
without which “the initiation of a prosecution would be futile”).
2 The officer's subjective motivation is irrelevant to this inquiry.
Whren, 517 U.S. at 813.
C. A Distinction In Arrest Authority Based On Punish-
ment Poses Enforcement Difficulties
Like the effort to confine misdemeanor arrests to
breaches of the peace, a constitutional rule that allows
arrests only for offenses punishable by imprisonment raises
problems of practical implementation. A number of laws
make first offenses punishable by a fine or other non-
incarceration penalty, but permit incarceration for
subsequent offenses.” A police officer witnessing an offense
on the street, however, has no way of knowing whether the
perpetrator is a first-time offender. Failure to arrest could
leave a repeat offender on the street; arrest could subject
the officer to personal liability for damages. “This is
certainly a very unsatisfactory line of difference” for police
officers to administer. Carroll, 267 U.S. at 157.
Petitioners’ proposal (Br. 46) that the Fourth Amendment
ban all arrests for fine-only offenses unless the arrest is
“necessary” for enforcement of the laws or the “offense
would otherwise continue and pose a danger to others” will
likewise be difficult to implement on the streets.“ For
2 See, eg. Welsh, 466 U.S. at 746 (first offense is a civil infraction pun-
ishable by $200 fine; subsequent offenses punishable by imprisonment of
up to one year); Carroll, 267 U.S. at 154; Va. Code § 18.2-266.1(B) (Michie
1996); id. § 18.2-270 (Michie 1996 & Supp. 1999) (first-time offense of driv-
ing while intoxicated punishable by license suspension and fine; subse-
quent offenses are punishable as a misdemeanor by fine and imprison-
ment; third offense within ten years is a felony); Ala. Code § 32-5A-191(b)
(Michie 1999) (first-time offense of driving under the influence subject
only to license suspension if driver is under 21); Wis. Stat. Ann.
§ 346.65(2)(a) (West 1999) (first-time offense of driving under the influence
punishable only by a fine). .
Not all jurisdictions can afford to equip every police car with up-to-
date computers. Even for those that can, computers often break down or,
due to heavy usage, communications are significantly delayed.
® Petitioners propose (Br. 46) to limit their rule to traffic offenses, but
they offer nothing other than ipse dizit and the already-rejected argument
that traffic offenses are multitudinous (see Whren, 517 U.S. at 818-819) to
explain why such an artificial category should be carved out of the Fourth
26
example, while petitioners take for granted that petitioner
Atwater’s checkbook (she had no other form of identification
with her, Pet. App. 30a) satisfactorily established her identi-
fication in a small-town setting based on the officer’s subjec-
tive knowledge, it is far from clear whether and under what
circumstances (such as urban settings or areas with tran-
sient populations, like many of the specialized jurisdictions
policed by federal officers) an officer’s arrest of a person
who, like petitioner Atwater, has committed multiple traffic
offenses and offers only a checkbook for identification will be
deemed objectively unreasonable under the Fourth Amend-
ment. See Knowles v. Iowa, 525 U.S. 113, 119 (1998) CUE a
police officer is not satisfied with the identification furnished
by the driver, this may be a basis for arresting him rather
than merely issuing a citation.”).™ Similarly, while peti-
Amendment. In fact, a traffic-offense line would be particularly incongru-
ous because this Court’s Fourth Amendment jurisprudence has con-
sistently recognized that persons in automobiles have —— —
enhanced expectations of liberty and privacy because of the —
pervasively regulated character of automobile travel. See, g., New
v. Class, 475 U.S. 106, 112 (1986) (noting that automobiles, unlike homes or
offices, are subject to a “web of pervasive regulation”), United States v.
Martineꝛ - Fuerte, 428 U.S. 543, 561 (1976) (JOhe's expectation of privacy
in an automobile and of freedom in its operation are significantly different
from the traditional expectation of privacy and freedom in one’s resi-
dence.”); South Dakota v. Opperman, 428 U.S. 364, 368 (1976) (noting the
“obviously public nature of automobile travel,” under which cars routinely
“travel{] public thoroughfares where both (their) occupants and (their)
contents are in plain view”). And if the argument that probable cause is
insufficient to justify an arrest is accepted here, it is not at all clear why
the Fourth Amendment would not also require balancing the need to
arrest against its intrusiveness for all other misdemeanors or even some
felonies, such as those involving possession-amounts of drugs or white-
collar crimes, where it could equally be argued that (1) the officer unques-
tionably knew the suspects’ identities because they were established citi
zens of the community, (2) they promised not to repeat the offense
they had no prior criminal record indicating that they would, and (3) they
signed a promise to appear in court.
2% Petitioners’ contention (Br. 43) that permitting arrests for fine-only
offenses will nullify the holding in Knowles is misplaced. Knowles did not
27
tioners’ test (Br. 46) professes to reserve the ability to arrest
traffic offenders to prevent recurrence of the offense, they
offer no guidelines by which courts can review the assess-
ment of officers on the scene, who frequently encounter traf.
fic offenders for the first time, that a person stopped poses a
risk of repeating the offense a few miles down the road.
Judicial review, through the medium of personal damages
actions, of an officer’s on-the-spot determination that an
individual is unlikely to appear in court or pay a fine will be
similarly difficult. While it may be obvious when the offender
destroys the citation or states that he will not pay, an
officer’s judgment based on more subtle indications such as
body language or other indicia of credibility will be harder to
defend after the fact. Yet the failure to respond to citations
is a significant problem for law enforcement. We have been
informed that s significant percentage of all citations issued
by federal law enforcement agencies go unpaid in the
absence of concerted collection efforts.
In our experience, federal officers generally do not make
arrests for fine-only offenses in the absence of a good reason.
Nevertheless, a constitutional rule should not be adopted
that would restrict the officers’ ability to make an on-the-
spot assessment that an arrest is needed to maintain control
of a situation, or that forces officers who have probable cause
to believe that a crime has been committed, on pain of per-
sonal liability for money damages, to apply such an uncertain
balancing test on the street and in the heat of an encounter.
“A single, familiar standard” of probable cause “is essential
to guide police officers, who have only limited time and
expertise to reflect on and balance the social and individual
limit the authority to arrest; it held only that a search incident to arrest is
impermissible under the Fourth Amendment when a custodial arrest is
not made. Any officer who searches before effectuating an arrest (see
Rawlings v. Kentucky, 448 U.S. 98, 110-111 (1980)) still must make an
arrest regardless of the outcome of that search, or face a Section 1983
action based on Knowles.
28
interests involved in the specific circumstances they
confront.” Dunaway, 442 U.S. at 213-214. While it no doubt
frequently is good policy and a wise use of police resources
not to make arrests for fine-only offenses, persons who have
violated the duly enacted criminal laws of a jurisdiction have
no constitutional right to be immune from routine criminal
processing.
D. Legislatures Have Prevented And Can Continue To
Prevent Arbitrary Law Enforcement
Quite apart from the impracticality of petitioners’ pro-
posed legal test, petitioners have failed to demonstrate that
a widespread problem of abusive arrests for misdemeanors
or traffic offenses exists. To the contrary, even a dissenting
judge below acknowledged that the facts of the present case
were “extreme” (Pet. App. 12a) and arose only in the case of
the “admittedly rare rogue patrol officer” (id. at 19a). In the
view of the federal government, moreover, although federal
law authorizes arrests for seatbelt violations (36 C.F.R.
4.15), it generally is inappropriate to enforce that law other
than by way of citation. In fact, the United States Park
Police, in conjunction with the local district courts, have
developed a “collateral list” procedure under which officers
may issue citations for certain misdemeanor crimes for
which arrest is otherwise authorized, including seatbelt of-
fenses, and may either require a subsequent appearance in
court or allow the offender to avoid a court appearance by
paying a designated fine.”
27 Further, the Department of Transportation and its National High-
way Traffic Safety Administration consider arrests for seatbelt violations
to be counterproductive to the national goal of increasing seatbelt com-
pliance, because the adverse public reaction to such arrests could dissuade
jurisdictions from adopting mandatory seatbelt usage laws, especially
those laws that make the failure to wear a seatbelt a primary offense
enforceable in its own right. See generally NHTSA, Standard Enforce-
ment Saves Lives: The Case for Strong Seat Belt Laws 13 (1999) (noting
that primary enforcement laws are considerably more effective in enhanc-
Although not presented by the facts of this case, peti-
tioners and their amici raise concerns about discriminatory
enforcement. But this Court made quite clear in Whren that
such claims should be addressed through the Equal Protec-
tion Clause, rather than through the Fourth Amendment.
517 U.S. at 813. Indeed, amicus ACLU acknowledges (Br. 9)
that courts across the country are increasingly recognizing
such equal protection claims.
An additional consideration limits the risk of abusive use
of the arrest power. As the brief of amicus Institute on
Criminal Justice indicates, officers face enormous disincen-
tives to arresting suspects for the commission of a minor
offense. While traffic stops can take little time, occur outside
the view of supervisors and other officers, and entail little if
any paperwork, custodial arrests are an entirely different
matter. A single arrest can consume hours of an officer’s
time; his actions are subject to supervisorial review and peer
scrutiny at the station house; and the paper trail that attends
arrests would make it much easier to document a pattern of
discriminatory law enforcement. Officers also generally do
not advance their own professional interests by consuming
enormous amounts of time and limited police resources by
arresting for minor misdemeanors and fine-only offenses. Of-
ficers who act out of vindictiveness, bias, or other improper
motive may also be subject to internal disciplinary proce-
dures. See, e. g., U.S. Marshal's Office, Code of Professional
Responsibility: Standards of Conduct (May 17, 1999), avail-
able at http://156.9.230.3/prt/policy/ directive/web/99-18.htm;
see also C.A. App. 400, 407, 410 (both Chief of Police and the
City mayor made clear to respondent Turek that they
disapproved of his handling of petitioner Atwater’s offense).
ing seatbelt usage, and thus reducing traffic fatalities, than those laws that
permit citations for failure to wear a seatbelt only when the vehicle is
stopped for a different traffic offense).
30
Crafting a new constitutional rule for fine-only misde-
meanors is not the only available safeguard against possible
abuses. As amicus ACLU demonstrates (Br. 22-25), a
number of States have taken steps to limit the authority of
police to arrest for misdemeanor, traffic, or fine-only of-
fenses. See also App. C, infra; Berkemer, 468 U.S. at 437
n.26; 625 Ill. Comp. Stat. Ann. ILCS §§ 5/6-800 et seq.
(Nonresident Violator Compact of 1977). The nature, scope,
and context of the restrictions adopted, however, vary; no
uniform national consensus on restricting arrest authority
has emerged. Accordingly, such decisions are best made
locally in light of the particular policy concerns and needs for
law enforcement of individual communities, rather than
homogenized through constitutional rule. Once a community
has adjudged certain behavior to be criminal, the Fourth
Amendment should not require police officers, who have pro-
bable cause to believe that an offense has been committed, to
adopt the least restrictive or least intrusive means of
enforcing the law. See United States v. Sharpe, 470 U.S. 675,
687 (1985) (“[T]he fact that the protection of the public
might, in the abstract, have been accomplished by ‘less intru-
sive’ means does not, by itself, render the search unrea-
sonable.”).
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
NOVEMBER 2000
31
SETH P. WAXMAN
Solicitor G !
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor G
PATRICIA A. MILLETT
Assistant to the Solicitor
General ’
THOMAS M. GANNON
Attorney
APPENDIX A
Federal Criminal Offenses Punishable
By Fine Only
5 U.S.C. 552a(i) (knowingly disclosing individually
identifiable information in government records, or willfully
maintaining as a government employee a system of records
without meeting notice requirements, or requesting or
obtaining individual government records under false
pretenses);
7 U.S.C. 228b-4 (while acting as a live poultry dealer or
employed by such, failing to obey an order of the Secretary
of Agriculture with respect to financing or payment
arrangements for poultry),
7 U.S.C. 472 (failing to furnish information to the De-
partment of Agriculture on the grades and staple length of
cotton on hand and failure to permit inspection);
7 U.S.C. 608c(14) (violations of certain orders governing the
handling of agricultural commodities);
7 U.S.C. 1373(a) (1994 & Supp. IV 1998) (failing to make a
report on or keep a record of certain agricultural activities);
7 U.S.C. 1596 (violating any provision of chapter 37 of title 7,
regarding seeds, or rules promulgated thereunder);
7 U.S.C. 1642(c) (failing to make a report or-keep a record as
required by regulations promulgated by the President under
the International Wheat Agreement);
(la)
2a
7 U.S.C. 3604 (failing to keep information or submit a
required report, knowingly submitting a false report, or
violating a rule or regulation under the law implementing
the 1977 International Sugar Agreement);
12 U.S.C. 1713(b) (violating certification made by mortgagor
of affordable rental housing to obtain federal mortgage
insurance that he or she will not discriminate against
families with children or sell property while mortgage is in
effect);
12 U.S.C. 1738(a) (violating certification made by mortgagor
to obtain federal mortgage insurance, available under
provision for relief of housing shortage for WWII veterans,
that he will not discriminate against families with children or
sell property while mortgage is in effect);
12 U.S.C. 1750b(a) B made by
mortgagor to obtain federal mortgage insurance for property
in area certified by President as a critical defense housing
area that he will not discriminate against families with
children or sell property while mortgage is in effect);
13 U.S.C. 212 (while serving as an officer or employee of the
Census Bureau, neglecting or refusing without justification
to perform duties);
13 U.S.C. 223 (while the owner or manager of a hotel,
apartment house, boarding or lodging house, tenement, or
other building, refusing or willfully neglecting to furnish
names of occupants to census or to give free ingress and
egress to census employees);
14 U.S.C. 83 (establishing, erecting, or maintaining any aid
to maritime navigation in or adjacent to waters subject to
3a
the jurisdiction of the United States without obtaining
authority to do so from the Coast Guard);
14 U.S.C. 84 (removing, changing the location of, willfully
damaging, making fast to, or interfering with any aid to
maritime navigation installed by the Coast Guard);
14 U.S.C. 85 (violating any rule or regulation promulgated
by the Coast Guard with respect to the establishment,
maintenance and operations of lights and signals on fixed and
floating structures),
15 U.S.C. 159 (engaging in business with China under a name
in connection with which the legend “Federal Inc. U.S.A.” is
used);
15 U.S.C. 241 (packing, selling, or offering for sale lime in
unmarked barrels, or selling, charging for, or purporting to
deliver any less weight of lime than established by law),
15 U.S.C. 330d (knowingly and willfully violating Section
330a of Title 15, which prohibits engaging or attempting to
engage in weather modification activities without submitting
required reports to the Secretary of Commerce);
15 U.S.C. 1338 (violating laws on cigarette labeling and
advertising);
15 U.S.C. 4404(a) (violating laws on warnings and labeling
for smokeless tobacco);
16 U.S.C. 373 (causing damage to Hot Springs National
Park);
4a
16 U.S.C. 374 (taking, using, or bathing in water of Hot
Springs National Park in violation of rules and regulations
promulgated by the Secretary of the Interior and without
providing evidence of being a patient of a physician
authorized to prescribe the waters of the Hot Springs);
16 U.S.C. 422d (destroying monuments in Moores Creek
National Battlefield);
16 U.S.C. 423f (destroying monuments in Petersburg
National Battlefield);
16 U.S.C. 425g (destroying monuments in Fredericksburg
and Spotsylvania County Battle Fields Memorial);
16 U.S.C. 426i (destroying monuments in Stones River
National Battlefield);
16 U.S.C. 428i (destroying monuments in Fort Donelson
National Battlefield);
16 U.S.C. 430h (destroying monuments in Vicksburg
National Military Park);
16 U.S.C. 430i (destroying monuments in Guilford Court-
house National Military Park);
16 U.S.C. 430 (destroying monuments in Monocacy Na-
tional Battlefield);
16 U.S.C. 4601-Ga(e) (violating rules and regulations regard-
ing the collection of fees at national parks, military parks,
monuments, and seashores);
5a
16 U.S.C. 916e (failing to make, keep, or furnish any catch
return record or other report required by the whaling
convention or other law or regulation);
18 U.S.C. 154 (1994 & Supp. IV 1998) (while serving as a
bankruptcy trustee, purchasing property of bankruptcy
estate or knowingly refusing reasonable opportunity for
inspection of documents and accounts relating to the estate);
18 U.S.C. 243 (excluding juror on account of race or color);
18 U.S.C. 244 (discriminating against person wearing uni-
form of armed forces);
18 U.S.C. 291 (while serving as a judge, clerk, or deputy
clerk, purchasing for less than full value a claim for the fee,
mileage, or expenses of a witness, juror, or officer of the
court);
18 U.S.C. 431 (while serving as a member of Congress,
making or entering into a contract or agreement for the
United States);
18 U.S.C. 475 (imitating an obligation or security of the
United States in an advertisement or attaching a notice or
advertisement to such an instrument);
18 U.S.C. 489 (making or bringing from a foreign country
with intent to sell, give away, or use any token, disk, or
device in the likeness of any of the coins of the United States
or of any foreign country);
18 U.S.C. 511A (affixing a theft prevention decal to a motor
vehicle without authorization);
6a
18 U.S.C. 1694 (while operating a conveyance on a post
route, carrying letters or packets otherwise than in the
mail);
18 U.S.C. 1697 (while operating a conveyance, knowingly
permitting the conveyance of anyone acting as or employed
as a private express for the conveyance of letters or
packages);
18 U.S.C. 1698 (while in charge of a vessel operating
between ports in the United States, failing to deliver to the
postmaster within the required time all letters and packages
brought by the vessel and not part of the cargo);
18 U.S.C. 1699 (breaking bulk before arranging for the
delivery of all letters on board to the nearest post office);
18 U.S.C. 1713 (while serving as an officer or employee of the
postal service, issuing a money order before receiving the
money therefor);
18 U.S.C. 1719 (making use of any official envelope, label, or
indorsement authorized by law to avoid the postage or
registry fee for personal mail);
18 U.S.C. 1722 (submitting false evidence to the post office
relative to any publication for the purpose of securing the
admission thereof at the second-class rate);
18 U.S.C. 1723 (knowingly concealing or inclosing any matter
of a higher class mail in that of a lower class and depositing
same for the conveyance by mail at a lower rate than would
be charged for the material);
Ta
18 U.S.C. 1725 (knowingly and willfully depositing mailable
matter on which no postage has been paid with intent to
avoid the payment of lawful postage thereon);
18 U.S.C. 1729 (setting up or professing to keep a post office
without authority from the postal service);
18 U.S.C. 1734 (while an editor or publisher, printing in a
publication entered as second class mail editorial or other
reading matter for which payment has been made without
marking the same advertisement“)
18 U.S.C. 1762 (1994 & Supp. IV 1998) (failing to mark as
such packages shipped in interstate commerce containing
goods, wares, or merchandise produced wholly or in part by
convicts or prisoners, except convicts or prisoners on pro-
bation or parole);
18 U.S.C. 2075 (while an officer of the United States, failing
to make a return or report required by Congress or a
regulation of the Department of Treasury within the time
prescribed);
18 U.S.C. 2236 (1994 & Supp. IV 1998) (while serving as an
officer, employee, or agent of the United States, searching
any private dwelling used as such without a warrant, or
maliciously and without reasonable cause searching any
other building or property without a search warrant,
excepting officers who obtain consent or who are serving a
warrant of arrest or arresting or attempting to arrest a
person committing or attempting to commit an offense in the
officer’s presence);
8a
18 U.S.C. 2721-2723 (knowingly violating prohibition on
release and use of certain personal information from state
motor vehicle records);
18 U.S.C. 3162(b) (while serving as an attorney in a criminal
trial, knowingly allowing a case to be set for trial without
disclosing fact that material witness will not be available at
trial, or filing a motion solely for the purpose of delay, or
making a false statement for the purpose of obtaining a
continuance, or otherwise willfully failing to proceed to trial
without justification);
19 U.S.C. 58b(d) (failure to pay a fee for customs service);
19 U.S.C. 507(a) (neglecting or refusing to assist a customs
officer upon proper demand in making any arrest, search, or
seizure authorized by a law enforced or administered by
customs officers);
21 U.S.C. 16-17 (violating laws prohibiting adulterated or
misbranded foods or drugs);
22 U.S.C. 3104(e) (violating regulations governing infor-
mation on international investments);
25 U.S.C. 202 (inducing an Indian to execute a contract,
deed, or mortgage purporting to convey an interest in land
held by the United States in trust for the Indian, unless the
lease or deed is authorized by law);
26 U.S.C. 7262 (violating occupational tax laws relating to
wagering);
9a
26 U.S.C. 7275 (failing to indicate on the ticket or ad-
vertisement for a ticket for air travel the amount of the price
attributable to port taxes);
27 U.S.C. 207 (violating certain laws regarding the sale of
intoxicating liquors);
33 U.S.C. 421 — teriatmmaslia enti
or near Chicago);
83 U.S.C. 495 (failing or refusing to comply with certain
orders of the Secretary of Transportation regarding bridges
over navigable waters); .
33 U.S.C. 502 (willfully failing to comply with a lawful order
of the Secretary of Transportation requiring alteration to a
bridge that is an unreasonable obstruction of a navigable
waterway of the United States);
83 U.S.C. 519 (willfully failing to comply with a lawful order
of the Secretary of Transportation regarding a bridge over
navigable waters of the United States);
33 U.S.C. 915 (1986) (requiring an employee covered by the
Longshore and Harbor Workers’ Compensation Act to enter
into an invalid agreement to contribute to a benefit fund for
the purpose of providing medical services and supplies);
83 U.S.C. 941 (while an employer of persons covered by the
Longshore and Harbor Workers’ Compensation Act, failing
to furnish and maintain reasonably safe places of em-
ployment);
38 U.S.C. 7332 (violating section providing for confidentiality
of patient records of the Veterans Administration relating to
10a
drug abuse, alcoholism, HIV infection, and sickle cell
anemia);
38 U.S.C. 5701(a) (willfully using names of members, depen-
dants, or former members of the Armed Forces for a pur-
pose other than that for which release of the names is
authorized);
42 U.S.C. 290dd-2(a) (failing to comply with law providing
for the confidentiality of patient records from substance
abuse treatment and education programs conducted or
assisted by the United States);
42 U.S.C. 1437d(q)(6) (Supp. IV 1998) (knowingly and
willfully requesting or obtaining information about an appli-
cant for public housing under false pretenses or knowingly or
wilfully disclosing such information to a person not entitled
to receive it);
42 U.S.C. 14133(c) (disclosing without authorization or
knowingly obtaining without authorization individually iden-
tifiable DNA information in a database created or main-
tained by a federal law enforcement agency);
42 U.S.C. 2277 (while or subsequent to serving in a covered
capacity, knowingly communicating restricted data to an
unauthorized person relating to the development and control
of atomic energy);
42 U.S.C. 3544 (c)(3)(A) (1994 & Supp. IV 1998) (knowingly
and willfully requesting or obtaining information about an
applicant for or participant in public housing without consent
or agreement);
lla
43 U.S.C. 315a (violating law or regulation on the protection,
administration, regulation, and improvement of grazing
districts);
43 U.S.C. 316k (willfully grazing any class of livestock
without authority under a lease or permission on lands in a
grazing district in Alaska as designated by the Secretary of
the Interior);
46 U.S.C. App. 194 (violating law prohibiting owners of
vessels shipping goods to or between ports in the United
States from inserting in any bill of lading or shipping
document any agreement lessening the obligation of due
diligence in operating the vessel or violating law requiring
vessel transporting merchandise to or between ports of the
United States to issue to shippers a bill of lading or other
shipping document);
47 U.S.C. 502 (willfully and knowingly violating any rule,
regulation, restriction, or condition made or imposed by the
FCC or imposed by an international radio or wire com-
munications treaty);
49 U.S.C. 526 (knowingly and willfully violating certain
sections of Title 49, regulating motor carriers, or regulations
or orders of the Secretary of Transportation relating
thereto);
49 U.S.C. 46309(a) (while acting as an air carrier or employee
thereof, knowingly and willfully offering or granting
concessions or price rebates to obtain transportation at less
than the lawful price, or receiving same).
49 U.S.C. 46316(a) (knowingly and willfully violating air
commerce and safety laws or regulations or orders of the
12a
Secretary of Transportation or Administrator of the Federal
Aviation Administration with respect to aviation safety
duties).
Statutes Authorizing Warrantless Arrests for
Misdemeanor Offenses
Ala. Code § 15-10-3(a)(1) (1995 & Supp. 1999), revised by
2000 Ala. Acts 266 (authorizing warrantless arrest for any
“public offense” committed or breach of the peace
threatened in the presence of the officer);
Alaska Stat. § 12.25.030(a)(1) (Michie 1999) (authorizing
arrest without a warrant “for a crime committed * * * in
the presence of the person making the arrest”);
Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp. 1999)
(authorizing arrest without a warrant when a misdemeanor
has been committed in the officer’s presence);
Ark. Code Ann. § 16-81-106(b)(2)(a) (Michie Supp. 1999)
(authorizing arrest by an officer without a warrant “where a
public offense is committed in his presence”);
Cal. Penal Code § 836(a)(1) (West Supp. 2000) (authorizing
warrantless arrest where “the person to be arrested has
committed a public offense in the officer’s presence”);
Colo. Rev. Stat. § 16-3-102(1)(b) (1999) (authorizing officer to
make warrantless arrest when Jalny crime has been or is
being committed” in the officer’s presence);
Conn. Gen. Stat. Ann. § 54-1fla) (1994 & West 2000)
(authorizing warrantless arrests for “any offense” when
arrestee is taken in the act or on the speedy information of
others);
(1b)
2b
Del. Code Ann. tit. 11, § 1904(a)(1) (1995) (authorizing
warrantless arrest for any misdemeanor committed in the
officer’s presence);
D.C. Code Ann. § 23-581(a)(1)(B) (1996) (authorizing
warrantless arrest where officer has probable cause to
believe a person has committed an offense in the officer’s
presence);
Fla. Stat. Ann. § 901.15(1) (West 2000), amended by 2000
Fla. Sess. Law Serv. 00-369 (West) (warrantless arrest
allowed if misdemeanor or ordinance violation committed in
presence of officer)
Ga. Code Ann. § 17-4-20 (a) (1997) (authorizing warrantless
arrest by officer “for a crime * * * if the offense is
committed in such officer’s presence”);
Haw. Rev. Stat. Ann. § 803-5(a) (Michie 1999) (authorizing
warrantless arrest “when the officer has probable cause to
believe that [a] person has committed any offense”);
Idaho Code § 19-603(1) (1997) (authorizing warrantless
arrest by officer “[flor a public offense committed or
attempted in his presence”);
725 Ill. Comp. Stat. Ann 5/107-2(1)(c) (West 1992)
(authorizing arrest by officer without a warrant when he
has reasonable grounds to believe that the person is
committing or has committed an offense”);
Ind. Code Ann. § 35-33-1-1(a)(4) (Michie 1998) (authorizing
warrantless arrest when the officer has probable cause to
believe a person “is committing or attempting to commit a
misdemeanor in the officer’s presence”);
—
3b
Iowa Code Ann. § 804. 7(1) (West 1994) (authorizing warran-
tless arrest “[flor a public offense committed or attempted in
the peace officer’s presence”);
Kan. Stat. Ann. § 22-2401(d) (Supp. 1999) (authorizing war-
rantless arrest for Jalny crime, except a traffic infraction or
a cigarette or tobacco infraction” committed in the officer’s
view);
Ky. Rev. Stat. Ann. § 431.005(1)(d) (Michie 1999) (authoriz-
ing warrantless arrest for any offense punishable by
confinement committed in the officer’s presence); id.
§ 431.015(2) (officer must issue citation rather than arrest for
certain violations);
La. Code Crim. Proc. Ann. art. 213(3) (West 1991) (authoriz-
ing warrantless arrest where the officer “has reasonable
cause to believe that the person to be arrested has com-
mitted an offense”);
Me. Rev. Stat. Ann. tit. 15, § 704 (West 1980) (authorizing
warrantless arrest of “persons found violating any law of the
State or any legal ordinance or bylaw of a town”) and id. tit.
17-A, § 15(B) (West 1983 & Supp. 1997), amended by 2000
Me. Laws 644, (authorizing warrantless arrests for misde-
meanors committed in the officer’s presence);
Md. Code Ann. art. 27, § 594B(a) (1996 & Supp. 1999)
(authorizing warrantless arrest of any person who commits,
or attempts to commit, “any felony or misdemeanor” in the
presence of an officer);
Mass. Ann. Laws ch. 276, § 28 (Law. Co-op. 1992 & Supp.
1998) (warrantless arrest authorized for designated
misdemeanor offenses); id. ch. 272, § 60 (Law. Co-op. 1992)
4b
(authorizing warrantless arrest for littering offenses where
identity of arrestee is not known to officer);
Mich. Comp. Laws Ann. § 764.15(a) (West 2000) (officer,
without a warrant, may arrest a person if a felony, misde-
meanor, or ordinance violation is committed in the officer’s
presence); id. § 780.581 (West 1998) (if the offense is
punishable by a fine or by a prison term of not more than one
year, the officer must take the person before a magistrate
without unnecessary delay or release the person on bond);
Minn. Stat. Ann. § 629.34(c)(1) (West Supp. 2000) (authoriz-
ing warrantless arrest “[w]Jhen a public offense has been
committed or attempted in the officer’s presence”);
Miss. Code Ann. § 99-3-7 (1999 & Supp. 1999) (warrantless
arrest allowed for indictable offense committed in presence
of officer)’; id. § 45-8- 21(1)(a)(vi) (1999) (authorizing war-
rantless arrest by Highway Safety Patrol Officers of “any
person or persons committing or attempting to commit any
misdemeanor, felony or breach of the peace within their
presence or view”);
Mo. Ann. Stat. § 479.110 (West 1987) (authorizing warrant-
less arrest of “any person who commits an offense in [the
officer’s] presence”);
Mont. Code Ann. § 46-6-311(1) (1997) (authorizing warrant-
less arrest if “the officer has probable cause to believe that
the person is committing an offense or that the person has
committed an offense and existing circumstances require
immediate arrest”);
1 This statute applies to misdemeanor offenses. Butler v. State, 212
So.2d 573 (Miss. 1968).
5b
Neb. Rev. Stat. § 29-404.02(2)(d) (1995) (authorizing war-
rantless arrest when the officer has probable cause to
believe that the person has committed a misdemeanor in the
presence of the officer);
Nev. Rev. Stat. § 171.172 (1999) (authorizing warrantless
arrest by officer in fresh pursuit of a person who commits
“any criminal offense” in the presence of the officer);
N.H. Rev. Stat. Ann. § 614:7 (1986 & Supp. 1999)
(authorizing warrantless arrest by officer in fresh pursuit of
any person who has committed “any criminal offense” in the
presence of the officer); id. §§ 594:10(I)(a), 594:14 (officer
may arrest without warrant upon probable cause for
misdemeanor or violation committed in officer’s presence, or
may issue summons in lieu of arrest);
N.J. Stat. Ann. § 53:2-1 (West 1986 & Supp. 2000) (authoriz-
ing state police to arrest without a warrant “for violations of
the law committed in their presence”);
N. M. Stat. Ann. § 3-13-2(A)(4)(d) (Michie Supp. 1999)
(authorizing officers to “apprehend any person in the act of
violating the laws of the state or the ordinances of the
municipality and bring him before competent authority for
examination and trial.”); id. § 30-3-6(B) (Michie 1994)
(authorizing warrantless arrest for assault, battery, public
affray or criminal damage to property); id. § 30-16-16(B)
(authorizing warrantless arrest for falsely obtaining services
or accommodations); id. § 30-16-23 (authorizing arrest with-
out warrant of any person officer has probable cause to
believe has committed the crime of shoplifting); id.
§ 3-23-8 (Michie Supp. 1999) (warrantless arrests for
violations of forest fire laws committed in officer’s presence);
id. § 31-1-7 (authorizing warrantless arrests in cases of do-
6b
mestic disturbance); see also id. 31-1-6 (Michie 2000) (officer
who arrests a person without a warrant for a petty mis-
demeanor may offer the person arrested the option of a
citation to appear instead of taking him to jail);
N.Y. Crim. Proc. Law § 140.10(1)(a) and (2) (McKinney 1992)
(warrantless arrest allowed when officer has probable cause
to believe any offense has been committed in his presence
and probable cause to believe person to be arrested
committed the offense; in the case of petty offenses,
authority to arrest is limited to geographical area of officer’s
employment and county in which such offense was com-
mitted or believed to have been committed or in adjoining
county);
N.C. Gen. Stat. § 15A-401(b) (1999) (authorizing a warrant-
less arrest where an officer has probable cause to believe the
person has committed “a criminal offense” in the officer’s
presence and for misdemeanors out of the officers presence
in certain circumstances),
N. D. Cent. Code § 29-06-15 (1)(a) (1991) (authorizing war-
rantless arrest Iflor a public offense, committed or at-
tempted in the officer’s presence”);
Ohio Rev. Code Ann. § 2935.03 (Anderson 1999) (authorizing
warrantless arrest of a person “found violating a law
of this state, an ordinance of a municipal corporation, or a
resolution of a township”); but see id. § 2935.26 (providing
that notwithstanding any other provision of the Revised
Code, when a law enforcement officer is otherwise author-
ized to arrest a person for the commission of a minor
misdemeanor, the officer shall not arrest the person, but
shall issue a citation, except in specified circumstances);
7
Okla. Stat. Ann. tit. 22, § 19601) (West 1992 & Supp. 2000), as
amended by 2000 Okla. Sess. Laws 370, (authorizing
warrantless arrests “(flor a public offense, committed or
attempted in [the officer’s] presence”);
Or. Rev. Stat. § 133.310(1) (1997) (authorizing warrantless
arrest upon probable cause for any offense except
unclassified offenses, unless the maximum penalty allowed
by law is equal to or greater than the maximum penalty
allowed for a Class C misdemeanor; authorizing warrantless
arrest for any crime occurring in the officer's presence); id. §
161.515(1) (a crime is an offense for which a sentence of
imprisonment is authorized);
Pa. Stat. Ann. tit. 71, § 252(a) (West 1990) (authorizing war-
rantless arrests by state police “for all violations of the law,
including laws regulating the use of the highways, which
they may witness”); id. tit. 53, § 37005 (West 1998) (police
officers “may, within the city or upon property owned or
controlled by the city or by a municipal authority of the city
within the Commonwealth, without warrant and upon view,
arrest and commit for hearing any and all persons guilty of
breach of the peace, vagrancy, riotous or disorderly conduct
or drunkenness, or who may be engaged in the commission of
any unlawful act tending to imperil the personal security or
endanger the property of the citizens, or violating any of the
ordinances of said city for the violation of which a fine or
penalty is imposed.”); id. tit. 13, § 45 (authorizing, without
warrant and upon view, “arrest and commitment for hearing
of any and all persons guilty of a breach of the peace,
vagrancy, riotous or disorderly conduct or drunkenness or
may be engaged in the commission of any unlawful act
tending to imperil the personal security or endanger the
property of the citizens, or violating any ordinances of said
8b
borough, for the violation of which a fine or penalty is
imposed.”);
R.I. Gen. Laws § 12-7-3 (1994) (authorizing warrantless
misdemeanor and petty misdemeanor arrests where “the
officer has reasonable ground to believe that [the] person
cannot be arrested later or may cause injury to himself or
herself or others or loss or damage to property unless
immediately arrested”);
S.C. Code Ann. § 17-13-30 (Law. Co-op. 1985) (authorizing
warrantless arrests of persons who, in the presence of the
officer, “violate any of the criminal laws of this State if such
arrest be made at the time of such violation of law or
immediately thereafter”);
S.D. Codified Laws § 23A-3-2 (Michie 1998) (authorizing
warrantless arrest by officer Iflor a public offense, other
than a petty offense, committed or attempted in his pres-
ence”);
Tenn. Code Ann. § 40-7-103(a)(1) (1997 & Supp. 1999)
(authorizing law enforcement officer to arrest without a
warrant “(flor a public offense committed or a breach of the
peace threatened in the officer’s presence”); see also id.
§ 40-7-118(b)(1) (1997) (“officer who has arrested a person for
the commission of a misdemeanor * * * shall issue a
citation to such arrested person to appear in court in lieu of
the continued custody and the taking of the arrested person
before a magistrate”);
Tex. Code Crim. P. Ann. art. 14.01 (West 1977) (authorizing
officer’s arrest of offender without a warrant “for any
offense committed in his presence or within his view”);
Utah Code Ann. § 10-3-915 (1999) (authorizing warrantless
arrests for “any offense directly prohibited by the laws of
this state or by ordinance”); id. § 77-7-2 (authorizing
warrantless arrest for any public offense committed in
presence of officer or if officer has reasonable cause to
believe offense was committed and reasonable cause for
believing person may flee, destroy evidence, or injure
another);
Vt. R. Crim. P. 3(a) (2000) (authorizing warrantless arrests
where officer has probable cause to believe that “a crime” is
committed in the presence of the officer); see also id. 3(c)
(“A law enforcement officer acting without warrant who is
authorized to arrest a person for a misdemeanor under
subdivision (a) of this rule shall, except as provided in
paragraph (2) of this subdivision, issue a citation to appear
before a judicial officer in lieu of arrest.”);
Va. Code Ann. § 19.2-81 (Michie 1995 & Supp. 1999) (author-
izing warrantless arrest of “any person who commits any
crime in the presence of [an] officer”);
Wash. Rev. Code Ann. § 10.31.100 (West 1990 & Supp. 1999),
as amended by 2000 Wash. Laws 119 (authorizing warrant-
less arrests for misdemeanors committed in the presence of
the officer);
W. Va. Code § 62-10-9 (2000) (authorizing warrantless
arrests “for all violations of any of the criminal laws of the
United States, or of this state, when committed in [an
officer’s] presence”);
Wis. Stat. Ann. § 968.07(1)(D) (West 1998) (authorizing
warrantless arrest when “(tJhere are reasonable grounds to
100
believe that the person is committing or has committed a
crime”);
Wyo. Stat. Ann. § 7-2-102(b)(i) (Michie 1999) (authorizing
warrantless arrest when “(aJny criminal offense” is com-
mitted “in the officer’s presence”).
APPENDIX C
State-Law Limitations on Arrests for
Traffic Offenses
The following States require the issuance of a citation in
lieu of arrest in some circumstances:
Ala. Code § 32-1-4 (1999) (when any person is arrested for a
motor vehicle misdemeanor, the officer shall release upon
written bond to appear, unless officer has good cause to
believe person has committed any felony, or person charged
with offense resulting in injury or death or offense of DW1);
Alaska Stat. § 12.25.180(b) (Michie 1998) (when person is
stopped for the commission of a misdemeanor or the viola-
tion of a municipal ordinance, person shall be issued citation
unless satisfactory evidence of identity not furnished or
person refuses to accept citation or give written promise to
appear);
Ark. Code Ann. § 27-14-405 (Michie 1994) (authorizing
arrests upon view and without warrant for any violation
committed in their presence of laws regulating the operation
of vehicles or the use of the highways); id. § 27-50-601
(procedure prescribed shall not otherwise be exclusive of
any other method prescribed by law for the arrest and
prosecution of a person for an offense of like grade.); id. § 27-
50-603 (providing for release from custody for traffic
offenses on written promise to appear);
Cal. Veh. Code § 40504 (West 1985 & Supp. 2000) (officer
must deliver copy of notice to appear to arrested person;
(le)
2c
upon promise to appear and identification, the arresting
officer shall release the person arrested from custody);
Colo. Rev. Stat. § 42-4-1707 (1999) (for violation of vehicle
code punishable as a misdemeanor, petty offense, or
misdemeanor traffic offense, other than a violation for which
a penalty assessment notice may be issued, officer may issue
and serve upon the defendant a summons and complaint); id.
§ 42-4-1712 (provisions of vehicle code shall govern all police
officers in making arrests without a warrant or issuing
citations for violations of vehicle code, for offenses or
infractions committed in their presence, but the procedure
prescribed in this article shall not otherwise be exclusive of
any other method prescribed by law for the arrest and
prosecution of a person for an offense or infraction of like
grade);
Fla. Stat. Ann. § 901.15 (West 1996 & Supp. 2000)
(authorizing warrantless arrest for misdemeanor committed
or ordinance violated in presence of officer); id. § 321.05(3)(a)
(highway patrol has authority to make arrests while in fresh
pursuit of a person believed to have violated the traffic
laws); id. § 318.14 (specifying that police must issue a citation
in lieu of arrest for certain noncriminal traffic infractions);
Haw. Rev. Stat. Ann. § 286-10 (Michie 1998) (upon arresting
a person for violation of any provision of the code, officer
shall issue to the alleged violator a summons or citation);
Ky. Rev. Stat. Ann. § 431.015(2) (Michie 1999), § 189.290(1)
(Michie 1997) (officer must issue citation rather than arrest
for certain motor vehicle violations, but exceptions include
any one who fails to operate his or her vehicle in a “careful
manner, with regard for the safety and convenience of
pedestrians and other vehicles upon the highway”);
3c
La. Rev. Stat. Ann. § 32:39 1 (West 1989) (officer shall release
on promise to appear person arrested for motor vehicle
violation, except in certain situations, for example, if officer
has good cause to believe person committed any felony or
misdemeanor);
Md. Code Ann. Transp. II § 26-202(a)(2) (1998) (authorizing
officer to arrest without warrant for any traffic law violation
only if violation committed within officer’s presence and
person does not furnish satisfactory proof of identify or
officer reasonably believes traffic citation will be ignored or
in other specified circumstances);
Mich. Comp. Laws Ann. § 764.15(1)(a) (West 2000) (authoriz-
ing arrest without a warrant for misdemeanor, or ordinance
violation committed in the officer’s presence); but see id.
§ 257.907 (West 1990 & Supp. 2000) (certain traffic offenses
are civil infractions);
Minn. Stat. Ann. § 169.91 (West 1986 & Supp. 2000) (officer
shall issue written notice to appear to person arrested for
motor vehicle violation, but must bring person before judge
in certain instances, for example, when there is reasonable
cause to believe person will leave state);
Neb. Rev. Stat. Ann. §§ 29-427, 29-432, 29-435, 60-684
(Michie 1995) (officer shall issue citation in lieu of arrest for
traffic infraction, but can arrest and detain person if, for
example, officer believes person will not appear, or will cause
immediate harm if not detained, or person has no ties to
community);
N.M. Stat. Ann. § 66-2-12(A)(2) (Michie 1998) (authorizing
warrantless arrests for motor vehicle code violations com-
mitted in the presence of the officer); id. § 66-8-123 (officer
4c
must issue summons in lieu of arrest. for traffic offense with
five exceptions);
N.D. Cent. Code § 39-07-07 (1987 & Supp. 1997) (requires the
issuance of a summons in lieu of arrest with some
exceptions);
Ohio Rev. Code Ann. § 2935.03 (Anderson 1999) (warrantless
arrest allowed if violated state law, municipal ordinance, or
township resolution in presence of officer and in jurisdiction
in which the officer is appointed, employed, or elected); id. §
2935.26 (“Notwithstanding any other provision of the
Revised Code, when a law enforcement officer is otherwise
authorized to arrest a person for the commission of a minor
misdemeanor, the officer shall not arrest the person, but
shall issue a citation,” unless certain circumstances apply);
Okla. Stat. Ann. tit. 22, § 1115.1(A) (West Supp. 2000) (officer
shall release on personal recognizance person arrested solely
for misdemeanor traffic violation if, among other require-
ments, officer is satisfied as to person’s identify);
Or. Rev. Stat. §§ 133.310(1) (1990 & Supp. 1998), 810.410
(1995 & Supp. 1998) (officer shall not arrest person who
commits traffic infraction and may issue citation instead;
however, officer can arrest person for specified offense, for
example, reckless driving);
R. I. Gen. Laws § 12-7-3 (1994) (warrantless arrest allowed
when officer has probable cause to believe misdemeanor
committed in his presence and probable cause to believe
person to be arrested committed the offense); id. § 11-1-2
(offense punishable by fine of not more than $500 is a
violation only);
50
S.C. Code Ann. § 56-25-30 (Law. Co-op. 1991) (officer may
release person on own recognizance who has accepted a
traffic citation issued by the officer);
S.D. Codified Laws § 32-33-2 (Michie 1998) (citation required
whenever violation punishable as misdemeanor);
Tenn. Code Ann. § 40-7-118(b)(1) (1997) (citation in lieu of
continued custody for misdemeanor offenses);
Vt. R. Crim. P. 3(a), (e) (officer who has grounds to arrest
person for misdemeanor shall issue citation in lieu of arrest,
but may arrest in certain specified instances, for example, if
person fails to furnish adequate proof of identity, arrest is
necessary to obtain nontestimonial evidence, or person has
insufficient ties to community);
Va. Code Ann. § 46.2-936 (Michie 1998 & Supp. 1999) (for
misdemeanor traffic violations, officer shall issue a summons
in lieu of arrest);
Wash. Rev. Code Ann. § 46.64.015 (West 1987 & Supp. 1999)
(officer must issue citation in lieu of arrest for traffic
offenses except in certain circumstances); id. 10.31.100(3)
(West 1990 & Supp. 1999) (authorizing warrantless arrests
for certain traffic infractions)
Wis. Stat. Ann. §§ 345.22, 345.23 (West 1999) (officer shall
release traffic-regulation violator arrested without warrant
under certain conditions; otherwise officer has discretion to
take violator into custody).
6c
The following States put no statutory limits on police
discretion to arrest for traffic offenses:
Ariz. Rev. Stat. Ann. § 13-3883(B) (West Supp. 1999) (officer
may stop and detain a person as is reasonably necessary to
investigate an actual or suspected violation of any traffic law
committed in the officer’s presence);
Conn. Gen. Stat. Ann. § 54-1f(a) (West 1994 & Supp. 2000)
(officer may arrest in his precinct for any offense when
person taken while committing offense and arrest made upon
speedy information of others);
Del. Code Ann. tit. 21, § 701 (1995), as amended by 2000
Delaware Laws Ch. 325 (West) (authorizing warrantless
arrest for motor vehicle violations when officer has probable
cause to believe violation committed in his presence and
probable cause to believe person to be arrested committed
the offense);
D.C. Code Ann. § 23-581(a)(1)(B) (1996) (authorizing war-
rantless arrest where officer has probable cause to believe
offense committed in the officer’s presence);
Ga. Code Ann. § 17-4-23 (1997) (officer has discretion to give
citation or arrest for violation of motor vehicle laws);
Idaho Code § 49-1407 (1994) (officer who stops someone for
traffic violation has discretion to give a traffic citation or
take arrestee without unnecessary delay before the proper
magistrate as specified); id. § 19-701A (1997) (officer in fresh
pursuit of a person who is reasonably believed by him to
have committed, or attempted to commit, any criminal
offense or traffic infraction in the presence of the officer,
7e
shall have authority to pursue, arrest and hold in eustody or
cite such person anywhere in this state);
Ind. Code Ann. §§ 9-26-8-1, 9-26-8-2, 9-30-6-3 (Michie 1997), §
35-33-1-1(a)(3) (Michie 1998) (providing that the procedure
prescribed in the motor vehicle chapter is not the exclusive
method for the arrest and prosecution of a person for a
similar offense; specifying certain offenses under the vehicle
code for which officer may arrest without a warrant); id. § 9-
30-2-5(a) (Michie 1997) (state resident arrested for a
misdemeanor regulating the use and operation of motor
vehicles, other than the misdemeanor of operating a vehicle
while intoxicated, and not immediately taken to court shall
be released from custody by the arresting officer upon
signing a written promise to appear in the proper court at a
time and date indicated on the promise);
Iowa Code Ann. § 804.7 (West 1994) (authorizing arrest for
an offense committed in officer’s presence or where officer
has reasonable grounds to believe a public offense was com-
mitted);
Kan. Stat. Ann. §§ 8-2104 (1991), 8-2106 (1991 & Supp. 1999)
(officer has discretion to arrest or issue citation for misde-
meanor motor vehicle offenses);
Mass. Ann. Laws ch. 90, § 21 (Law. Co-op. 1994) (officer may
arrest without warrant and keep in custody for not longer
than 24 hours, persons who commit certain motor vehicle
offenses);
Miss. Code Ann. § 27-19-133 (1999) (authorizing warrantless
arrests for operating any motor vehicle contrary to the
provisions of the vehicle code; if vehicle operator is taken
into custody, he is entitled to an immediate hearing or to be
de
released from custody upon giving a good and sufficient bond
to appear and answer for the violation);
Mo. Ann. Stat. § 43.195 (West 1992) (state highway patrol
may arrest on view, and without a warrant, any person the
officer sees violating or who has reasonable grounds to
believe has violated any state motor vehicle law);
Mont. Code Ann. § 46-6-311 (1997) (officer may arrest a
person when a warrant has not been issued if the officer has
probable cause to believe that the person is committing an
offense or that the person has committed an offense and
existing circumstances require immediate arrest);
Nev. Rev. Stat. Ann. § 484.795 (Michie 1998) (officer who
stops someone for a violation of certain traffic laws must
bring the arrestee before a magistrate; for other traffic
violations, officer has discretion to give a traffic citation or to
take arrestee without unnecessary delay before the proper
magistrate);
N.H. Rev. Stat. Ann. § 614:7 (1986 & Supp. 1999) (authoriz-
ing officer in fresh pursuit of a person who has violated any
motor vehicle statute in the presence of the officer to arrest
and hold in custody the person anywhere in this state);
N.J. Stat. Ann. § 39:5-25 (West 1990 & Supp. 2000) (officer
may arrest without warrant any person committing motor
vehicle violation in officer’s presence, and may issue sum-
mons instead of arresting);
N.Y. Crim. Proc. Law § 140.10 (McKinney 1992) (warrantless
arrest allowed when officer has probable cause to believe
any offense has been committed in his presence and probable
cause to believe person to be arrested committed the
ge
offense; in the case of petty offenses, arrest within the
geographical area of such officer’s employment and must be
made in the county in which such offense was committed or
believed to have been committed or in an adjoining county);
N.Y. Veh. & Traf. Law § 155 (McKinney 1996) (“For pur-
poses of arrest without a warrant, pursuant to article one
hundred forty of the criminal procedure law, a traffic
infraction shall be deemed an offense.”);
N.C. Gen. Stat. § 20-183(a) (1999) (officer has power to arrest
on sight any person found violating motor vehicle laws);
Pa. Stat. Ann. tit. 71, § 252 (West 1990); 75 Pa. Cons. Stat.
Ann. § 6304 (West 1996) (state police officer may arrest any-
one, and any other police officer may arrest nonresident, for
any violation of vehicle code committed in presence);
Tex. Transp. Code Ann. § 543.001 (West 1999) (any officer
may arrest without warrant a person found committing a
violation of the rules of the road subtitle of the vehicle code);
Utah Code Ann. § 41-3-105(8)(a) (1998 & Supp. 2000) (officers
have authority to make arrests upon view and without
warrant for any violation committed in their presence of any
of the provisions of the motor vehicles law);
W. Va. Code § 15-5-18 (2000) (warrantless arrest allowed for
misdemeanor or ordinance violation in presence of officer);
Wyo. Stat. Ann. §§ 31-5-1204 to 31-5-1205 (Michie 1999)
(officer may arrest upon reasonable and probable grounds to
believe person has committed certain specified motor vehicle
violations, including reckless driving).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.