Amicus Curiae Brief — Atwater v. Lago Vista

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GAIL ATWATER, Individually, and MICHAEL HAAS

as next friend of ANYA SAVANNAH HAAS

and MACKINLEY XAVIER HAAS,

Petitioners,

Vv.

CITY OF LAGO VISTA, BART TUREK

and FRANK MILLER,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF AMICUS CURIAE TEXAS

CRIMINAL DEFENSE LAWYERS ASSOCIATION

IN SUPPORT OF PETITIONERS

Rosert C. “Bos” Hinton Grec WESTFALL

President, Texas Criminal (Counsel of Record)

Defense Lawyers Assn. Keamney é WastrALL

5015 Tracy, Suite 100 500 Throckmorton St.

Dallas, Texas 75205 #1801

(214) 219-9300 Fort Worth, Texas 76102

(214) 219-9309 (fax) (817) 336-5600

Wassan S. Hanes (817) 336-5610 (fax)

Co-Chair, Amicus Committee,

Texas Criminal Defense Lawyers Assn.

307 West 7th Street, Suite 1905

Fort Worth, Texas 76102

(817) 332-5575

(817) 335-6060 (fax)

Counsel for Amicus Curiae

Texas Criminal Defense Lawyers Association

ORE OR CALL COLLECT (002) 3429831

Zor?

TABLE OF CONTENTS

Page

SD IS GPTEE ss ockvcvccsceseccccceseccees

TABLE OF AUTHORITIES .......ccccccccscccecceee Sil

INTEREST OF AMICUS CURIAE.........0...0005.. 1

SUMMARY OF ARGUMENT..............00e000085 1

I. IN ADDITION TO IMPLEMENTING THE COM-

MON LAW RULE ON MISDEMEANOR

ARRESTS, THIS COURT SHOULD PERFORM A

FOURTH AMENDMENT BALANCING ANAL-

A. The Effect On The Interests of the Individual In

An Arrest Versus A Citation is Profound ....

B. Where The Driver is a Resident Who Is Will-

To Sign A Promise To Appear And The

Can Reasonably Ascertain His Iden-

tity, The State’s Law Enforcement Interests

Are Not Any More Furthered By A Custodial

Arrest Than By A Citation.................

1. The State’s Interest in Fixing the Identity

of the Offender and Ensuring That He

Will Appear in Court Cannot Support a

Full Custodial Arrest For a Fine-Only

POTTY TTTIT ITTY

2. No Other Legitimate Law Enforcement

Interests Can Justify The Arrest........

TABLE OF CONTENTS - Continued

Page

3. Because of Other Pronouncements of

This Court As Well As Other Applicable

State laws, The Impact on “Effective Law

Enforcement” From Granting Petitioners’

Relief in this Case Would Be Marginal at

Merit. 21

Il. THIS COURT COULD EASILY CRAFT A WORK-

ABLE STANDARD FOR DETERMINING WHEN

ARRESTS FOR FINE-ONLY TRAFFIC OFFENSES

COULD BE REASONABLE UNDER THE

eee eee 24

A. Solution #1: Formulate a Terry-style Consti-

tutional Arrest Justification Standard ...... 24

B. Solution #2: Announce a Bright Line Rule -

No Arrests For Fine-Only Misdemeanors... 27

C. Applicability To Othet Areas .............. 28

CONTCLUGION 2.00 0ccccccssceeee6seu0neeennnnne 29

-_-—-~——

TABLE OF AUTHORITIES

Page

Cases:

Albright v. Oliver, 510 U.S. 266 (1994) ............... 12

Almeida-Sanchez v. United States, 413 U.S. 266

ELLE NEEL EEE PPO E PETE 10

Atwater v. City of Lago Vista, 195 F.3d 242 (Sth Cir.

1999), cert. granted, 120 S.Ct. 2715 (2000)

i Cee ee eeueekeereeeceececceccs 6, 15, 19, 20, 25

California v. Acevedo, 500 U.S. 565 (1991)............. 22

Camara v. Municipal Court, 387 U.S. 523 (1967)...... 2,4

Carroll v. United States, 267 U.S. 132 (1925)........ 2, 22

Chimel v. California, 395 U.S. 752 (1969) .............. 2

Delaware v. Prouse, 440 U.S. 648 (1979) ......... 2, 4, 14

Florida v. Royer, 460 U.S. 491 (1983) ..............4.. 14

Forrester v. City of San Diego, 25 F.3d 804 (9th Cir.

1994), cert. denied, 513 U.S. 1152 (1995)............. 5

Gerstein v. Pugh, 420 U.S. 103 (1975) ............655. 22

Graham v. Connor, 490 U.S. 386 (1989)................ 4

Knowles v. lowa, 525 U.S. 113 (1998)...... 10, 13, 16, 19

Maryland v. Wilson, 519 U.S. 408 (1997)......... 2, 4, 21

Michigan v. Long, 463 U.S. 1032 (1983)............... 21

New York v. Belton, 453 U.S. 454 (1981).............. 21

Ohio v. Robinette, 519 U.S. 33 (1996)............0055. 22

Payton v. New York, 445 U.S. 573 (1980) ....... 2, 10, 11

Pennsylvania v. Mimms, 434 U.S. 106 (1977)...2, 4, 5, 21

Rawlings v. Kentucky, 448 U.S. 98 (1980)............. 16

TABLE OF AUTHORITIES - Continued

Page

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

1997), cert. granted, 522 U.S. 1038, and cert. dis-

misses, TED Wa Gab Goeeee ccctccceccccccccccecess 28

Schmerber v. California, 384 U.S. 757 (1966)............ 5

Sibron v. New York, 392 U.S. 40 (1968)............... 18

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

Terry v. Ohio, 392 U.S. 1 (1968).............5555. passim

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ...2, 4

United States v. Dionisio, 410 U.S. 1 (1973)............ 7

United States v. Doe, 457 F.2d 895 (2d Cir. 1972),

cert. denied, 410 U.S. 941 (1973) ............. 0 enue 7

United States v. Hensley, 469 U.S. 221 (1985) ........ 2, 4

United States v. Lugo, 170 F.3d 996 (10th Cir. 1999) .... 16

United States v. Marion, 404 U.S. 307 (1971)........... 7

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ..... 4

United States v. Place, 462 U.S. 696 (1983).......... 4,14

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

secbbekseoencesedeasesesasaneennnenea 2, 16, 17, 19, 21

United States v. Ross, 456 U.S. 798 (1982)............ 22

United States v. Watson, 423 U.S. 411 (1976)..... i Ve ae

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

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

Williams v. State, 726 S.W.2d 99 (Tex. Crim. App.

SoU ocncenccacccdccececdénsoeddacedasnseneaunees 16

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

Winston v. Lee, 470 U.S. 753 (1985) ..............4.. 2,4

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL Provisions, STATUTES AND RULEs:

Tex. Penat Cope ANN. § 12.21 (Vernon 1999) ........ 23

Tex. Penat Cope Ann. § 12.22 (Vernon 1999) ..... 22, 23

Tex. Pena Cope ANN. § 38.02 (Vernon 1999) ..... 20, 23

Tex. Pena Cope Ann. § 38.04 (Vernon 1999) ........ 23

Tex. Pena Cope ANN. § 38.15(d) (Vernon 1999)...... 20

Tex. Pena Cove ANN. § 42.01 (Vernon 1999) ........ 20

Tex. Penat Cove ANN. § 42.03 (Vernon 1999) ........ 23

Tex. Pena Cope Ann. § 49.04 (Vernon 1999) ........ 22

Tex. Transp. Cope ANN. § 542.401 (Vernon 1999)..... 11

Tex. Transp. Cope ANN. § 543.001 (Vernon 1999) ...5, 12

Tex. Transp. Cope Ann. § 543.009(b) (Vernon 1999) .... 13

Tex. Transp. Cope Ann. § 545.401(b) (Vernon 1999) .... 23

Tex. Transp. Cope ANN. § 545.413 (Vernon 1999)...... 5

Tex. Transp. Cope ANN. § 545.413(d) (Vernon 1999) .... 11

BU GEE Ts Ghee ch ccvcvccncenccsccsacocenceccessscncons 2

Bs GR. Ge BP vce cccvcccencecccdnesccscceseecesceces 1

BU GR, GH TP ccncceccnsccencscsccsccccssncvcccsdes 1

See GD, GUNG, Decccccccccccccccccccccccessscess 20

ee GR, GI, BF cc ccccccvcccccensccscesces passim

TABLE OF AUTHORITIES - Continued

OrHER AUTHORITIES:

4 WiuiaM BLACKSTONE, COMMENTARIES ON THE Laws

Barbara C. Salken, The General Warrant of the Twen-

tieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses,

62 Tempce L. Rev. 221 (1989) .............0005.

Brief of Respondent, Ricci v. Village of Arlington

Heights, No. 97-501, 1998 WL 134006...........

David A. Harris, Driving While Black: Racial Profil-

ing on Our Nation's Highways (June 1999).......

Fort Worth Star-Telegram, November 4, 1998, “Jail

Stealing Their Time, Officers Say” .............

Horace L. Wilgus, Arrest Without A Warrant, (pt.

1), 22 Micn. L. Rev. 541 (1924).............445.

Wayne R. LaFave, SearcH AND Seizure § 5.2(e) (3d

GE. FOGED cc cccccccccccccccccccesoecccccocccsces

William A. Schroeder, Warrantless Misdemeanor

Arrests and the Fourth Amendment, 58 Mo. L. Rev.

8 .. PPPPTTTTTTTITITITTTITTTTTTTTiTi TTT ie

William H. Buckman & John Lambreth, Challeng-

ing Racial Profiles: Attacking Jim Crow on the

Interstate, THe CHampion (Sept./Oct. 1999)......

Page

et eee —

INTEREST OF AMICUS CURIAE!

The Texas Criminal Defense Lawyers Association

(TCDLA) is a Texas non-profit corporation with a mem-

bership of more than 2000 attorneys covering the State of

Texas. TCDLA was organized almost three decades ago

with the stated purposes of protecting and ensuring by

rule of law those individual rights guaranteed by the

Texas and Federal Constitutions in criminal cases, to

resist efforts to curtail such rights, to encourage coopera-

tion between lawyers engaged in the defense of citizens

accused of crimes through educational programs and

other assistance, and through such cooperation, educa-

tion and assistance to promote justice and the common

good.

STATEMENT

Amicus adopts petitioners’ statement.

SUMMARY OF ARGUMENT

A full custodial arrest for a traffic citation is unrea-

sonable under the Fourth Amendment for two reasons.

First, the common law at the time of the adoption of the

Fourth Amendment did not support a full custodial arrest

for fine-only offenses such as those used to regulate our

1 Letters from the parties consenting to the filing of this

brief are on file with the Clerk of this Court in accordance with

Sup. Cr. R. 37.3. Pursuant to Sup. Cr. R. 37.6, counsel for amicus

states that no counsel for a party authored this brief in whole or

in part and no person, other than amicus, its members, or its

counsel made a monetary contribution to the preparation or

submission of this brief.

highways.? Second, through a balancing analysis it is

easily seen that the interests of the individual impacted

by a full custodial arrest far outweigh the state’s interest

in having one where a licensed driver is a resident, can be

sufficiently identified, and is willing to sign a promise to

appear. Even in light of the language of Whren v. United

States, 517 U.S. 806, 816-18 (1996), stating that ordinarily a

balancing analysis is not appropriate where probable

2 This Court has undertaken two basic methods for

analyzing searches and seizures under the Fourth Amendment.

The Court has examined the common law in effect at the time

the Fourth Amendment was framed, see, e.g., Wilson v. Arkansas,

514 U.S. 927 (1995); Payton v. New York, 445 U.S. 573 (1980);

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

Robinson, 414 U.S. 218 (1973); Chimel v. California, 395 U.S. 752

(1969); Carroll v. United States, 267 U.S. 132 (1925), and

sometimes the development of the common law since. See, ¢.g.,

Payton, 445 U.S. at 591 n.33; Watson, 423 U.S. at 419-22. The

Court has also conducted a balancing analysis, weighing the

states’s law enforcement interests against the individual's

interests in light of the intrusion and whether or not the

intrusion advances the state’s interests enough to justify it. See,

e.g., Maryland v. Wilson, 519 U.S. 408 (1997); Tennessee v. Garner,

471 U.S. 1(1985); Winston v. Lee, 470 U.S. 753 (1985); United States

v. Hensley, 469 U.S. 221 (1985); Delaware v. Prouse, 440 U.S. 648

(1979); Pennsylvania v. Mimms, 434 U.S. 106 (1977); United States

v. Brignoni-Ponce, 422 U.S. 873 (1975); Camara v. Municipal Court,

* 387 US. 523 (1967). To a lesser extent, the Court has also

examined the acceptance of a law or practice among the . . ites,

see, e.g., Garner, 471 U.S. at 15-18; Payjon, 445 U.S. at 598-600;

Watson, 423 U.S. at 419, and Congress, see, e.g., Payton, 445 U.S.

at 601; Watson, 423 U.S. at 415-16, 423.

This Brief presents a balancing analysis. It is believed that

Petitioner will present a thorough and complete analysis under

the common law and Amicus expressly adopts and agrees with

that analysis. In keeping with Sur. Cr. R. 37.1, however, Amicus

presents no argument thereon.

nd .

cause exists, a balancing analysis is appropriate in this

case because this arrest was “extreme.” See id. at 818. The

arrest is extreme because it does absolutely nothing to

further the state’s interests.

Where traffic violations are concerned, in the major-

ity of states the officer has a choice of whether to have the

driver sign a promise to appear or to affect a full custo-

dial arrest. Ordinarily, traffic citations carry only a fine as

the maximum punishment. Both of these aspects of traffic

offenses — officer discretion to arrest and only a fine as

punishment - are indicative of the state’s reduced interest

in custody on traffic citations. The paramount state’s

interest in affecting a full custodial arrest on any offense

is to ensure that the defendant will appear in court.

Where a driver is licensed, is a resident who can be

reasonably identified by the officer, and is willing to sign

a promise to appear, the state’s interest in ensuring that

the driver will appear in court is satisfied. That interest

cannot be additionally furthered through a custodial

arrest sufficiently to justify such an increased seizure.

Nor ean any other state’s interests justify a full custodial

arrest. This is due in part to other pronouncements from

this Court giving police officers the power to control and

investigate persons in an automobile as well as the auto-

mobile itself. Because the difference in magnitude

between a stop and a full custodial arrest is so large, the

fact that this additional step does virtually nothing to

further the state’s interest in ensuring the driver’s

appearance in court makes this seizure “extreme” such

that a balancing analysis is appropriate. See id.

The statutes giving police officers the authority to

arrest for traffic citations are not “facially” unconstitu-

tional, but only as applied in this case. See Tennessee v.

Garner, 471 U.S. 1, 11 (1985). Thus, two possible frame-

works for applying them in a constitutional manner are

presented at the end of this brief -— an “articulable reasons

for custody” rule based upon the type of analysis found

in Terry v. Ohio, 392 U.S. 1, 21 (1968) and a “bright-line

rule with exceptions” analysis such as that found in Ten-

nessee v. Garner. See id. at 11-12.

ARGUMENT

IN ADDITION TO IMPLEMENTING THE COMMON

LAW RULE ON MISDEMEANOR ARRESTS,

THIS COURT SHOULD PERFORM A FOURTH

AMENDMENT BALANCING ANALYSIS

This Court has time and time again recognized that

where the constitutionality of a seizure is concerned, the

Court “must balance the nature and quality of the intru-

sion on the individual’s Fourth Amendment interests

against the importance of the governmental interests

alleged to justify the intrusion.” Tennessee v. Garner, 471

U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S.

696, 703 (1983) and citing Delaware v. Prouse, 440 U.S. 648,

654 (1979); United States v. Martinez-Fuerte, 428 U.S. 543,

555 (1976); see also Maryland v. Wilson, 519 U.S. 408, 411

(1997); Graham v. Connor, 490 U.S. 386, 396 (1989); Winston

v. Lee, 470 U.S. 753, 758-63 (1985); United States v. Hensley,

469 US. 221, 228 (1985); Pennsylvania v. Mimms, 434 U.S.

106, 109 (1977); United States v. Brignoni-Ponce, 422 US.

873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 20-21 (1968);

Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967). The

intrusion, also, must actually further the government's

stated interests. See Garner, 471 U.S. at 10; Prouse, 440 US.

~~ —— —— eee ae eee

at 661; Forrester v. City of San Diego, 25 F.3d 804, 814 (9th

Cir. 1994), cert. denied, 513 U.S. 1152 (1995). This balancing

has been said to be inherent in the analysis of whether a

seizure is “reasonable.” See Mimms, 434 U.S. at 108-09

(“The touchstone of our analysis under the Fourth

Amendment is always ‘the reasonableness in all the cir-

cumstances of the particular governmental invasion of a

citizen’s personal security.’ Reasonableness, of course,

depends ‘on a balance between the public interest and the

individual's right to personal security free from arbitrary

interference by law officers.’ ”) (quoting Terry, 392 U.S. at

19; Brignoni-Ponce, 422 U.S. at 878). The “overriding func-

tion of the Fourth Amendment,” this Court has said

elsewhere, “is to protect personal privacy and dignity

against unwarranted intrusion by the State.” Schmerber v.

California, 384 U.S. 757, 767 (1966).

The first issue that must be resolved, however, is

whether a balancing analysis even applies to this case

because, admittedly, Officer Turek had probable cause to

arrest Gail Atwater for the seatbelt violation. See Whren v.

United States, 517 U.S. 806, 816-18 (1996). Where probable

cause exists, this Court held in Whren, “(T]he only cases

in which we have found it necessary actually to perform

the ‘balancing’ analysis involved searches or seizures

conducted in an extraordinary manner, unusually harm-

ful to an individual’s privacy or even physical inter-

ests....” Id. at 818. Amicus would suggest that this is just

such a case and that a balancing analysis can and should

be undertaken.

First of all, the probable cause existed here, as did the

power to arrest, because they were established by Texas

statutory law. See Tex. TRANsP. Cope ANN. § 543.001 (Ver-

non 1999) (arrest without warrant authorized) & § 545.413

(Vernon 1999) (it is an offense not to wear a seatbelt). No

state law should be insulated from constitutional review

by this Court merely because it purports to justify a

particular type of seizure by probable cause also created

by that law. Probable cause should not operate to “immu-

nize a constitutional violation.” Atwater v. City of Lago

Vista, 195 F.3d 242, 247 (5th Cir. 1999) (Garza, J., dissent-

ing), cert. granted, 120 S.Ct. 2715 (2000).

Secondly, the type of seizure found in this case is

extraordinary. It is extraordinary because the seizure can-

not be said to further any legitimate law enforcement

interest. Where a resident driver is stopped for a fine-

only traffic offense and the officer confirms the driver's

identity and the driver is willing to sign the citation

thereby agreeing to appear in court on the offense, a

custodial arrest can do nothing more to further the State’s

interests as they pertain to that violation. And even if it can

be argued that some governmental interest is forwarded

in some marginal way, this still cannot justify the massive

additional step between issuing a citation and conducting

a full custodial arrest. Bearing in mind that the probable

cause is based solely upon a fine-only traffic code viola-

tion, a full custodial arrest in the vast majority of cases is

simply too extreme. Whether or not the custodial arrest

itself is “conducted in an extraordinary manner,” Whren,

517 U.S. at 818, the fact of the custodial arrest in this

context is itself extraordinary. This Court should there-

fore conduct a balancing analysis under the Fourth

Amendment.

_ —---— - ~—

_— —_——_~

A. The Effect On The Interests of the Individual In An

Arrest Versus A Citation is Profound.

This Court has rightly recognized that an arrest is a

most serious intrusion upon one’s privacy as well as the

rights contemplated by the framers of the Fourth Amend-

ment. In United States v. Dionisio, 410 U.S. 1 (1973), this

Court observed that an arrest “is abrupt, is effected with

force or the threat of it and often in demeaning circum-

stances, and . . . results in a record involving social

stigma.” Id. at 10 (quoting United States v. Doe, 457 F.2d

895, 898 (2d Cir. 1972), cert. denied, 410 U.S. 941 (1973)). In

another case, this Court stated, “Arrest is a public act that

may seriously interfere with the defendant's liberty,

whether he is free on bail or not, and that may disrupt his

employment, drain his financial resources, curtail his

associations, subject him to public obloquy, and create

anxiety in him, his family and his friends.” United States

v. Marion, 404 U.S. 307, 320 (1971). In United States v.

Watson, 423 U.S. 411 (1976), Justice Powell opined, “An

arrest . . . is a serious personal intrusion regardless of

whether the person seized is guilty or innocent. Although

an arrestee cannot be held for a significant period with-

out some neutral determination that there are grounds to

do so, .. . no decision that he should go free can come

quickly enough to erase the invasion of his privacy that

already will have occurred.” See id. at 428 (Powell, J.,

concurring).

The commentators are in agreement with the Court

on the nature of the invasion that goes along with a full

custodial arrest. One commentator has observed the

arrest in these terms:

Any arrest has a profound and long-lasting

effect on the arrestee. Even if an arrest is for a

minor offense, and charges against the arrestee

are ultimately dropped or the arrestee is acquit-

ted, the records of the arrest probably will be

retained and disseminated. Moreover, wide-

spread public feeling that “where there’s smoke,

there’s fire” often leaves a cloud of suspicion

hanging over an arrestee even if no conviction

follows. .. .

A custodial arrest is an especially “awesome

and frightening” experience. The arrestee is

abruptly constrained and usually searched, even

if the arrest is for a minor offense. He is then

forcibly taken to an unfamiliar place, booked,

fingerprinted, photographed, searched more

extensively, and held in jail, possibly under

unsanitary and unsafe conditions, until, and

unless, he can obtain his release. The arrestee

may suffer emotional distress and public humili-

ation, and may lose contact with family and

friends. He may lose time from work and will

probably be required to obtain an attorney and

spend money on bail. If the detention is at all

prolonged, he may lose his job or suffer other

adverse consequences.

If a person charged with a misdemeanor is

subjected to a custodial arrest, that arrest is

likely to be the major consequence suffered by

that person.

William A. Schroeder, Warrantless Misdemeanor Arrests and

the Fourth Amendment, 58 Mo. L. Rev. 771, 797-800 (1993);

see also Barbara C. Salken, The General Warrant of the

Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62 TemPLe

L. Rev. 221, 264 (1989) (“In a society in which freedom

and independence are valued, arrest is the greatest of

indignities.”). Professor Salken said the following about

custodial arrests:

ee em ee ee ee ——— a ~

——— -—_— me ~~ lU o

The physical restraint on freedom is not all

that an arrested person suffers. Personal privacy

is also violated. A person arrested is booked; a

record is made of the arrest, usually including

fingerprints and sometimes photographs. The

record may be permanent, whether or not the

individual is ultimately convicted of the offense

for which he or she is charged. The arrestee will

certainly be searched. Although the search may

be limited to a frisk, it is nonetheless more than

a “petty indignity” as “the officer must feel with

sensitive fingers every portion of the prisoner’s

body. A thorough search must be made of the

prisoner’s arms and armpits, waistline and

back, the groin... , and entire surface of the

legs down to the feet.” Probably a more exten-

sive search will be conducted. In addition to a

search of the person’s body, the police may look

in pockets, in any containers that may be in

those pockets, and in a purse or briefcase. The

search of a traffic offender will extend to the

person’s car and anything inside the car. The

intrusion on privacy is complete.

Salken, supra, at 264 (citations omitted).

As jail time is not even in the range of punishment,

the custodial arrest will most assuredly be the “major

consequence” for persons like Gail Atwater. In Tarrant

County, Texas, for instance, it may at present take several

hours to book in and out of jail. See Fort Worth Star-

Telegram, November 4, 1998, “Jail Stealing Their Time,

Officers Say,” at B1 (reporting book-in delays as long as

two hours). The fact is that one can easily stay in jail

overnight on an arrest, even when every part of the

system (bonding, etc.) works perfectly. And to the extent

that Professor Schroeder’s portrayal of the arrest and its

effects may seem hyperbolic to persons who work within

or are familiar with the criminal justice system, it is a safe

bet that it is an accurate depiction of what somebody in

Gail Atwater’s shoes might very well think and feel at the

time the officer tells her she is under arrest.

B. Where The Driver is a Resident Who Is Willing To

Sign A Promise To Appear And The Officer Can

Reasonably Ascertain His Identity, The State’s Law

Enforcement Interests Are Not Any More Furthered

By A Custodial Arrest Than By A Citation.

Balanced against these personal interests are the

state’s interests. As in other states,> in Texas, the vast

majority of regulatory traffic offenses and automobile

3 At least twenty-eight states have statutes that, like Texas,

give the officer on the street either virtually or absolutely

unlimited discretion in deciding whether to issue a citation to a

traffic violator or affect a full custodial arrest. See Barbara C.

Salken, The General Warrant of the Twentieth Century? A Fourth

Amendment Solution to Unchecked Discretion to Arrest for Traffic

Offenses, 62 Tempte L. Rev. 221, 249-52 (1989) (listing all of the

states in two categories - unlimited discretion (28 states) and

some limits on discretion (22 states)). This Court has observed,

however, “that no Act of Congress can authorize a violation of

the Constitution.” Almeida-Sanchez v. United States, 413 U.S. 266,

272 (1973). The same is no doubt true of acts of states, and in fact

on several occasions this Court has struck down the laws of

many states at once when it was determined that those laws

violated the Fourth Amendment. In Payton v. New York, 455 U.S.

573, 598-99 (1980), for example, this Court declared

unconstitutional the current practices of twenty-four states that

permitted the type of warrantless home arrests examined in that

case. Some twenty states at the time permitted the use of deadly

force on fleeing felons that was declared unconstitutional in

Tennessee v. Garner, 471 U.S. 1, 15-18 (1985). See also Knowles v.

Iowa, 525 U.S. 113, 116 (1998) (“The question we therefore

address is whether the search at issue, authorized as it was by

state law, nonetheless violates the Fourth Amendment.”).

———— oe

—— _

equipment violations are fine-only (not less than $1 nor

more than $200) misdemeanors. See Tex. Transp. Cope

ANN. § 542.401 (Vernon 1999). This is a reflection of the

legislature's opinion of the severity of the offenses. See

Welsh v. Wisconsin, 466 U.S. 740, 754 (1984). In Welsh, this

Court noted that the grade of the offense (driving while

intoxicated, a fine-only regulatory offense in Wisconsin)

could not justify a warrantless home arrest. See id. The

following observations, made by the Court in Welsh, are

quite relevant to this case:

The State of Wisconsin has chosen to clas-

sify the first offense for driving while intoxi-

cated as a noncriminal, civil forfeiture offense

for which no imprisonment is possible. This is

the best indication of the State’s interest in pre-

cipitating an arrest, and is one that can be easily

identified both by the courts and by officers

faced with a decision to arrest. Given this

expression of the State’s interest, a warrantless

home arrest cannot be upheld simply because

evidence of the petitioner’s blood-alcohol level:

might have dissipated while the police obtained

a warrant.

Welsh, 466 U.S. 754. Of course we are not here examining

a warrantless arrest in the home, which will receive more

scrutiny than a .,arrantless arrest in public. Compare Pay-

ton v. New York, 445 U.S. 573, 586-87 (1980) (warrantless

arrests in the home) with United States v. Watson, 423 U.S.

411, 423 (1976) (warrantless arrests in public). But we are

also not here examining an arrest for the offense of driv-

ing while intoxicated, an offense which is obviously

much more hazardous to the public than the failure to

wear a seatbelt (punishable in Texas by a fine of not less

than $25.00 and not more than $50.00). See Tex. Transp.

Cope ANN. § 545.413(d) (Vernon 1999).

It would bé quite a stretch indeed to characterize the

act of driving without one’s seatbelt fastened as a “breach

of the peace” or a “continuous danger.” Nonetheless, in

every case a police officer may, at his sole discretion,

affect a full custodial arrest. See Tx. TRANsp. Cope ANN.

§ 543.001 (Vernon 1999). What are 4 state’s interests in her

police officers having the discretionary power to effect a

full custodial arrest for a fine-only traffic offense where

the driver's identity is known and he is willing to sign an

agreement to appear in court?

1. The State’s Interest in Fixing the Identity of the

Offender and Ensuring That He Will Appear in

Court Cannot Support a Full Custodial Arrest

For a Fine-Only Traffic Violation.

The government no doubt has an interest in fixing

the identity of a defendant and ensuring that he will

appear in court to answer the charges against him. By

many accounts, this is the number one reason for arrest.

See, e.g., Albright v. Oliver, 510 U.S. 266, 278 (1994) (Gins-

burg, J., concurring) (“The purpose of an arrest at com-

mon law, in both criminal and civil cases, was ‘only to

compel an appearance in court’. . . . ); Schroeder, supra, at

834 (“In the course of the last century, arrest has come to

be viewed primarily as a means of making the arrestee

available to answer a charge or accusation against him.”);

Salken, supra, at 266 (“The government's interest in insur-

ing the defendant’s presence at the trial is strong and

legitimate.”); Horace L. Wilgus, Arrest Without A Warrant,

(pt. 1), 22 Micu. L. Rev. 541, 543 (1924) (arrest defined as

“the apprehension or taking into custody of an alleged

offender, in order that he may be brought into the proper

court to answer for a crime”); 4 Wiutam BLACKSTONE,

— -— -—— —— —_—-_

COMMENTARIES ON THE Laws Or ENGLAND *286 (central pur-

pose of arrest is to ensure suspect’s presence at trial).

Custodial arrest is certainly a means by which this is

accomplished. When a person is arrested and booked,

there can be no doubt that in the vast majority of cases,

the true identity of the defendant is fixed and he is keenly

aware that he needs to appear in court.

When a police officer pulls a driver over for a traffic

violation, he asks for the driver’s license. He invariably

then goes back to his car and runs a computer check on

the license to see whether it is valid and whether it is

clear of warrants. If he does not have the ability to do this

in his car, he radios the station, where someone does it

for him. If the driver’s license is clear and in good order,

the police officer knows exactly who he is dealing with

(due in no small part to the fact that the license has a

picture on it). The driver’s identification is “fixed.” Upon

issuance of a citation, along with the driver’s signature

indicating that he or she will appear in court, the criminal

process has begun. There simply is nothing further to be

done to ensure that the driver will appear that could

justify the quantum leap in invasiveness between a cita-

tion and a full custodial arrest. Further, if the driver

thereafter fails to show up for court, then a warrant is

issued for his arrest for failing to appear. See Tex. TRANnsp.

Cope Ann. § 543.009(b) (Vernon 1999). Thus, there can be

no credible argument that drivers can just ignore traffic

tickets and they will go away.

This Court has observed on several occasions that it

will consider the extent to which the particular seizure at

hand furthers the government's claimed interests as a

part of its “reasonableness” analysis. See, e.g., Knowles v.

Iowa, 525 U.S. 113, 116-19 (1998) (finding that this “search

incident to citation” did not sufficiently further the twin

goals of search incident to arrest — officer safety and the

collection of evidence of the offense); Garner, 471 U.S. at

9-12 (finding that using deadly force to effect an arrest

actually is counterproductive to the purposes for arrest);

United States v. Place, 462 U.S. 696, 703 (1983) (govern-

mental interests did not support the length of the deten-

tion in question); Florida v. Royer, 460 U.S. 491, 500 (1983)

(Plurality Op.) (“[I]nvestigative methods employed [by

law enforcement] should be the least intrusive means

reasonably available [to effect the stated purpose, which

in this case was a stop].”); Delaware v. Prouse, 440 U.S. 648,

659-60 (1979) (discovering unlicensed drivers not suffi-

ciently accomplished by system of “spot checks” not sup-

ported by probable cause to withstand Fourth

Amendment analysis). Under this rationale, a custodial

arrest for a fine-only traffic violation where the driver is a

resident who can be identified at the scene and is willing

to sign a promise to appear must be viewed as unreason-

able under the Fourth Amendment, as the custodial arrest

does nothing more to ensure appearance than would the

citation.

Of course, where the person cannot be reasonably

identified, the opposite could be true, as the state’s inter-

est in ensuring the driver’s appearance in court may not

be satisfied through the issuance of a citation. For exam-

ple, if the driver has a license but is not carrying it, then

the police officer may or may not be able to fix the

driver’s identity through means of other identification

along with a computer check.* Where the driver is from

* In the case at bar, Gail Atwater did not have her

operator’s license with her at the time of her arrest, as she had

out of state and thus not so easily arrested if he fails to

appear in court, the state’s inteffst may not be satisfied.

Likewise, where the driver refuses to sign the citation

indicating that he will appear in court, the central pur-

pose of arrest is obviously frustrated. Where the resident

driver with a valid driver’s license is concerned7*how-

ever, and that person is willing to sign an agreement to

_appear in court, the full custodial arrest is redundant.

2. No Other Legitimate Law Enforcement Interests

Can Justify The Arrest.

Other state law enforcement interests in the arrest

versus citation context have been mentioned, although

they are always secondary to the interest in ensuring the

defendant’s appearance at trial. See, e.g., Salken, supra, at

266 (identifying the additional governmental interests in

obtaining evidence of the crime, preventing future harm,

providing social service functions, and maintaining

proper respect for law and for the police); Brief of

Respondent, Ricci v. Village of Arlington Heights, No.

97-501, 1998 WL 134006 at *20-21 (an arrest is a means by

which an officer can assert control over potentially threat-

ening situation). As with the government's interest in

ensuring the driver’s presence at trial, however, the

power to arrest on the actual traffic violation does noth-

ing to further these interests, either.

her purse stolen two days before. See Atwater v. City of Lago

Vista, 195 F.3d 242, 248 (Sth Cir. 1999) (Wiener, J., dissenting),

cert. granted, 120 S.Ct. 2715 (2000). Nonetheless, Officer Turek

obviously knew her and she was able to produce a checkbook

with her driver’s license number and home address on it — quite

enough to pull her record on the computer and confirm that she

was who she said she was.

“Preventing future harm” and “controlling a poten-

tially threatening situation” appear to be one and the

same. This is a valid state law enforcement interest. Per-

forming a custodial arrest for a traffic violation, however,

is a very indirect way to further it. If there exists a

dangerous situation or if a person appears prepared to

breach the peace or pose a danger to the officer or others,

then, as outlined below, some other law certainly exists to

directly address that threat. See, e.g., Terry, 392 U.S. at

22-27 (clearly giving police the power to address a poten-

tially dangerous situation).

The government's interest in collecting and preserv-

ing evidence of the offense for use at trial is also a

legitimate interest that is recognized by this Court. See

United States v. Robinson, 414 U.S. 218, 234 (1973). How-

~ ever, this Court has also recognized the obvious reality

that there will not be any evidence of a traffic offense to

collect and preserve. See Knowles, 525 U.S. at 118. Because

of this, and because of the reduced threat to officer safety

during a traffic stop where a citation is given, the two

historical rationales of the search incident to arrest are

not sufficient to justify a search incident to arrest where a

traffic citation is issued. See Knowles, 525 U.S. at 116-17.

Before the citation is issued, however, in most states the

police officer making the stop has probable cause to

arrest and can therefore conduct a full search incident to

arrest as soon as the driver is pulled over. See Rawlings v.

Kentucky, 448 U.S. 98, 111 (1980) (search incident to arrest

need only be justified by probable cause to arrest and

need not occur after formal arrest); see also, e.g., United

States v. Lugo, 170 F.3d 996, 1000-03 (10th Cir. 1999) and

Williams v. State, 726 S.W.2d 99, 99-101 (Tex. Crim. App.

1986) (giving Rawlings precisely that interpretation in the

traffic stop context). This, as many have recognized, gives

police officers the ability to use a traffic violation as a

pretext in order to conduct a search for other evidence

not involving the traffic violation.5 But because these

searches are technically supported by probable cause, this

Court has instructed that the police officer’s motives

cannot be questioned. See Whren, 517 U.S. at 812.

As a tool for creating uniformity in the analysis of

police stops, the fact that probable cause will support a

stop or search regardless of the police officer’s motives is

5 Professor LaFave has observed:

There is a much more powerful reason for being

concerned about the unquestioned application to

traffic violation cases of the “general authority” to

search incident to arrest. “There is,” as the Robinson

dissenters properly emphasized, “always the

possibility that a police officer, lacking probable cause

to obtain a search warrant, will use a traffic arrest as a

pretext to conduct a search.” Given the fact, as they

noted, that “in most jurisdictions and for most traffic

offenses the determination of whether to issue a

citation or effect a full arrest is discretionary with the

officer,” and that “very few drivers can traverse any

appreciable distance without violating some traffic

regulation,” this is indeed a frightening possibility. It

is apparent that virtually everyone who ventures out

onto the public streets and highways may then, with

little effort by the police, be placed in a position

where he is subject to full search. Nor is one put at

ease by what evidence exists as to police practices in

this regard; it is clear that this subterfuge is employed

as a means for searching for evidence on the persons

of suspects who could not be lawfully arrested for the

crimes of which they are suspected.

Wayne R. LaFave, SearcH ANp Seizure § 5.2(e) (3d ed. 1996)

(citations omitted).

useful. Subjective motives on the part of the police are

(for a number of reasons) very difficult to prove in the

first place, thereby making a workable standard to apply

across the board a near impossibility. But one must admit,

however, that using a traffic stop as a mere excuse to go

on a fishing expedition through the passenger compart-

ment of a driver’s car searching for any contraband he

may (or may not) find is, at least as a concept, repugnant

to the Constitution. See Sibron v. New York, 392 U.S. 40, 63

(1968) (“It is axiomatic that an incident search may not

precede an arrest and serve as part of its justification.”).

This practice really does show a remarkable resemblance

to the general warrants and writs of assistance so

despised by the framers of the Constitution. See Salken,

supra, at 254-58 (detailing history of the writs of assis-

tance and general warrants and their contribution to both

the American Revolution and the framing of the Fourth

Amendment). Nonetheless, this practice is widely used

by police departments, and anecdotal studies are begin-

ning to emerge showing the abuses inherent in such a

practice. See, e.g., David A. Harris, Driving While Black:

Racial Profiling on Our Nation's Highways (June 1999) at 13,

available at www.aclu.org/profiling/report (detailing one

incident where a black man was stopped for not wearing

a seatbelt and the police officers dismantled his car

searching for contraband - finding none, they left the

driver with a screwdriver to repair his car); William H.

Buckman & John Lambreth, Challenging Racial Profiles:

Attacking Jim Crow on the Interstate, THe CHAMPION (Sept. /

Oct. 1999) (speaking to the general problem of racial

profiling). Such police activities are not subject to review

under the Fourth Amendment where the state law gives

SE a i a

them probable cause to arrest for a traffic violation. See

Whren, 517 U.S. at 812-13.

Upon arrest, the state’s law enforcement interests

justifying a search incident to that arrest are clearly legiti-

mate. See Robinson, 414 U.S. at 234. The state, however,

cannot and should not be able to claim a legitimate inter-

est in conducting an arrest simply to justify such a search.

Certainly such a claim could not be justified by the tradi-

tional reasons for a search incident to arrest — officer

safety and preserving evidence of the offense. See id.

Conducting a traffic stop as a pretext to be able to search,

while not a valid basis of review under the Fourth

Amendment, see Whren, supra, cannot be raised to the

status of a “legitimate state interest” for purposes of

Fourth Amendment balancing. The state is therefore left

with the traditional justifications for a search incident to

arrest, which do not apply to a situation where a citation

is issued. See Knowles, 525 U.S. at 117.

Another state interest that cannot be considered legit-

imate is the police officer’s personal interest in “teaching

the driver a lesson” by conducting an arrest.® See Atwater,

195 F.3d at 250 (Wiener, J., dissenting) (citations omitted).

Dovetailing into this interest is the interest of a state in

having its citizens possess the proper respect for law

enforcement. See Salken, supra, at 271-72. Respect for

police officers is on the whole warranted and their advice

should generally be followed by the citizenry. In fact,

under some circumstances, it can be a crime not to do so.

case. See id. at 248. Citing Whren, the majority in Atwater refused

to review Officer Turek’s behavior. See id. at 244-45 (citing

Whren, 517 U.S. at 817). Note that the record does not disclose

that Gail Atwater was disrespectful to Officer Turek in any way.

See, e.g., Tex. Penat Cope ANN. § 38.02 (Vernon 1999)

(refusing to identify oneself to a police officer is an

offense). Likewise, disrespect for the police could reach

the point where a breach of the peace actually occurs. See,

e.g., Tex. Penat Cope Ann. § 42.01 (Vernon 1999) (disor-

derly conduct). However, Amicus would be surprised to

find that in any jurisdiction in the United States it is an

offense not to respect (or to even be directly disrespectful

to) a police officer. See, e.g., Tex. PENAL Cope ANN.

§ 38.15(d) (Vernon 1999) (it is a defense to prosecution for

interfering with a public servant if that interference was

by speech alone). And if such a law actually exists,

Amicus would be even more surprised if, upon review,

this Court gave that law its stamp of approval. See U.S.

Const. amend. I. Punishment is a matter for courts and

juries, not police officers. See Atwater, 195 F.3d at 250

(Wiener, J., dissenting); Salken, supra, at 272.

In response to the question of whether circumscrib-

ing the power to conduct a full custodial arrest for a

traffic ticket would somehow diminish the respect that

citizens have for law enforcement, Amicus would submit

that the majority of people on the roads probably do not

have the slightest idea that they can be arrested for a

minor traffic violation. And even if they do, how can the

power to arrest for a traffic offense engender respect for

law enforcement? Bart Turek’s actions in this case have

done little to increase the citizenry’s respect for law

enforcement. And even where the officer does not have a

personal agenda the connection between custodial arrests

for traffic offenses and respect for law enforcement is

tenuous to say the least.

3. Because of Other Pronouncements of This Court

As Well As Other Applicable State laws, The

Impact on “Effective Law Enforcement” From

Granting Petitioners’ Relief in this Case Would

Be Marginal at Best.

The illusory nature of the government's interests in a

custodial arrest for a fine-only traffic violation is further

demonstrated through an examination of other laws that

apply to traffic stops and give police further investigatory

powers. For instance, even if the discretionary power to

conduct custodial arrests for traffic violations were shorn

away from our law enforcement officers, they would still

have the power to stop a driver upon seeing such a

violation. See Whren, 517 U.S. at 818. This would apply

even if the officer was stopping the driver for some other

reason besides the traffic violation. See id. at 813. Upon

being stopped, the officer may ask the driver, as well as

the passengers, to step out of the car. See Maryland v.

Wilson, 519 U.S. 408, 414-15 (1997); Pennsylvania v. Mimms,

434 U.S. 106, 111 (1977). If the officer has reasonable

suspicion at that point to believe any of the occupants of

the car is armed, he may do a protective sweep of the

entire passenger compartment of the car. See Michigan v.

Long, 463 U.S. 1032, 1049-50 (1983). He, of course, may do

the same with the body of the driver and passengers. See

Terry, 392 U.S. at 27. If, during the protective search of the

car, the officer should “discover contraband other than

weapons,” he may arrest whoever is found to possess it.

Long, 463 U.S. at 1050. At this point, the officer would

have the power to conduct a full search incident to arrest

not only of the arrested person, see Robinson, 414 US. at

236, but of the entire passenger compartment of the auto-

mobile as well as all containers found within. See New

York v. Belton, 453 U.S. 454, 460 (1981). Of course, the

police officer may always just ask for consent to search

the entire car. See Ohio v. Robinette, 519 U.S. 33, 35 (1996).

And it goes without saying that once an officer is stand-

ing next to the car, if probable cause develops for some

other reason (e.g., because of contraband in plain view,

marijuana smoke emanating from the car, etc.), then the

officer may search the entire car to the extent that he

could with a warrant, see United States v. Ross, 456 U-S.

798, 823 (1982), including any “containers within it where

[the officer has] probable cause to believe contraband or

evidence is contained,” whether in the passenger com-

partment or in the trunk, see California v. Acevedo, 500 U.S.

565, 580 (1991), or in secret compartments, such as behind

the upholstery of the car’s seats. See Carroll v. United

States, 267 U.S. 132 (1925). In light of all these police

powers that would be in no way affected, it cannot be

reasonably argued that to deny their power to automat-

ically arrest for fine-only traffic violations would “consti-

tute an intolerable handicap for legitimate law

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

Likewise, if the police officer is facing a situation

where a driver is an obvious danger or is breaching the

peace, chances are the driver is committing some other

offense for which arrest is entirely reasonable. For exam-

ple, the offense of driving while intoxicated, upon first

conviction, is a Class B Misdemeanor in Texas with a

range of punishment of 72 hours to 180 days in jail and

up to a $2,000 fine. See Tex. Pena. Cope Ann. §§ 12.22 &

49.04 (Vernon 1999). For those who refuse to show the

officer their license or lie about their identity, refusing to

identify oneself to a police officer is a Penal Code offense

in Texas, a Class B Misdemeanor punishable by up to six

months in jail and up to a $2,000 fine if that person has an

outstanding warrant for his arrest. See Tex. Penat Cope

ANN. §§ 12.22 & 38.02 (Vernon 1999). Obstructing a high-

way or not moving one’s vehicle when told to by an

officer is a Class B Misdemeanor in Texas. See Tex. PENAL

Cope ANN. § 42.03 (Vernon 1999). Fleeing in an auto-

mobile from a police officer who is attempting to make a

lawful stop is a Class A Misdemeanor in Texas, carrying a

range of punishment of up to a year in jail and up to a

$4,000 fine for a first offense, a felony thereafter. See Tex.

Pena Cope Ann. §§ 12.21 & 38.04 (Vernon 1999). Even the

offense of reckless driving carries a possible jail term. See

Tex. Transp. Cope Ann. § 545.401(b) (Vernon 1999) (up to

30 days in jail). A custodial arrest for any of these

offenses would be entirely reasonable (assuming probable

cause existed), for in each case the state’s interests in

making the arrest are obviously greater and cannot neces-

sarily be satisfied without a full custodial arrest. Not

surprisingly, with the exception of reckless driving, the

police officer does not even have the option of issuing a

ticket on any of the above cited offenses. These could not

be considered “regulatory offenses.” The vast majority of

traffic offenses, however, can be and are.

In sum, where a resident driver has been stopped for

a fine-only traffic offense, presents sufficient identifica-

tion and is willing to sign a promise to appear, it is

unreasonable under the Fourth Amendment to subject

her to a full custodial arrest. This conclusion is easily

arrived at through traditional balancing analysis. The

state’s interests at that point are clearly outweighed by

the individual’s because the arrest does absolutely noth-

ing to further them. Cf. Garner, 471 U.S. at 10-11. As was

also the case in Garner, however, this is not a situation

where the laws as they currently stand are facially uncon-

stitutional. See id., 471 U.S. at 11. Therefore, some stan-

dard for their application consistent with the Fourth

Amendment must be derived. See id. at 11-12.

Il.

THIS COURT COULD EASILY CRAFT A WORKABLE

STANDARD FOR DETERMINING WHEN ARRESTS

FOR FINE-ONLY TRAFFIC OFFENSES COULD BE

REASONABLE UNDER THE FOURTH AMENDMENT

This Court’s prior cases would support at least two

possible solutions to the problem under the Fourth

Amendment of discretionary arrests for fine-only traffic

offenses where the driver may be identified and is willing

to sign a promise to appear. One solution would put in

place a standard whereby an officer could arrest for the

traffic violation if he could articulate reasons why the

citation would be insufficient to satisfy the state’s interest

in ensuring the driver’s appearance at trial. The other

solution would be a “bright line rule” with exceptions,

such as that used in other unreasonable seizure cases

from this Court.

A. Solution #1: Formulate a Terry-style Constitutional

Arrest Justification Standard.

In his dissenting opinion below, Judge Wiener sug-

gested a test for determining the reasonableness of a

custodial arrest that is reminiscent of the test first

announced in Terry v. Ohio, 392 U.S. 1 (1968) for justifying

a stop and frisk.” See Atwater, 195 F.3d at 249 (Wiener, J.,

dissenting) (citing Terry, 392 U.S. at 21). Judge Wiener

conformed the Terry standard to the situation where the

police officer has made a lawful stop and must choose

between issuing a citation or conducting a full custodial

arrest. See id. Thus conformed, the test is as follows:

[T]o justify each successive, increasingly

stringent intrusion on an individual’s liberty

and privacy interests, a police officer must at a

minimum be able to articulate some reason why

it was necessary to effect the further intrusion.

The articulated reason does not need to be inde-

pendent of the reasons that justify the initial

intrusions: “The test is whether those interests

are sufficiently substantial, not whether they are

independent of the interest in investigating

crimes effectively and apprehending suspects.”

But where the identified reasons for both the

initial and the successive intrusions are the

same, a police officer must be able to advance a

plausible claim that the initial intrusions were

inadequate fully to serve the proffered govern-

mental interests. If the officer cannot plausibly

make that claim - in other words, if there were

no legitimate reasons for the further intrusions —

then the heightened intrusions are by definition

“unreasonable.”

Atwater, 195 F.3d at 249-50 (Wiener, J., dissenting).

7 “(I)n justifying the particular intrusion the police officer

must be able to point to specific and articulable facts which,

taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Terry v. Ohio, 391 U.S. 1, 21

(1968).

While not a “bright line” rule, this test should not be

any harder for the police officer on the street to apply

than it would in the stop and frisk context. The “reason-

able suspicion” standard enunciated in Terry is a substi-

tute for probable cause in a situation where the law

enforcement interests are so strong (search for weapons)

that an intrusion upon the rights of individuals on a

standard less than probable cause is justified. See Terry,

392 U.S. at 22-27. What Judge Wiener proposes is to use

the same type of standard - even where probable cause to

arrest is present — to justify each additional, increasingly

invasive step. Applying such a condition upon police

conduct even where probable cause is present is not

unheard of in Fourth Amendment analysis, cf. Terry, 392

U.S. at 28-29 (observing that the Fourth Amendment

imposes preconditions upon governmental action); and

see Garner, 471 U.S. at 11 (even in light of existing proba-

ble cause, use of deadly force to affect arrest constitu-

tionally unreasonable).

Judge Wiener’s test, however, should be more speci-

fic than set out in his dissenting opinion. First of all, it

should expressly apply only in situations where the offi-

cer has the discretion whether to issue a citation or to

effect a full custodial arrest. It is only in this situation

where the law enforcement interest in securing the defen-

dant’s presence at trial can be fully satisfied without an

arrest. If, for instance, the officer cannot verify the

driver’s identity, then that fact could be an “articulable

reason” for going the extra step and arresting the driver.

The fact that the driver presented a danger or was

breaching the peace may be other possible reasons.

Because the officer wanted to teach the driver a lesson,

however, would certainly be insufficient. Secondly, it

should only apply to those fine-only regulatory violations

such as the type found here, where the state’s classifica-

tion of the offense as fine-only indicates its low interest in

arrest and thus the law enforcement interests are far

outweighed by the individual’s interests protected by the

Fourth Amendment.

This test would have the advantage of placing con-

trols on the presently unlimited discretion of the police

officer in making the decision of whether to arrest or to

issue a citation. It would have the advantage of being an

“objective test” and there would be no apparent reason to

get into the police officer's subjective intentions, so long

as some objective reason to arrest could be articulated.

Not being a “bright line rule,” this test’s contours, as in

the case of stop and frisk, would “have to be developed

in the concrete factual circumstances of individual cases.”

Terry, 392 U.S. at 29. But there is no reason to believe that

the courts would not be able to sort it out.

B. Solution #2: Announce a Bright Line Rule - No

Arrests For Fine-Only Misdemeanors.

The alternative would be to announce a bright line

rule — where an offense carries only a fine and the police

officer is satisfied with the driver’s identity and the

driver is willing to sign a promise to appear, then the

officer cannot affect a full custodial arrest unless probable

cause develops from another source. The “other sources”

from which probable cause could develop are, for

instance, those rules already established in this Court's

precedents or that the driver is found to be committing

some other crime. See, supra, Section 1.B.3. This, in effect,

would be a bright line rule subject to exceptions such as

that announced by this Court in Garner, 471 U.S. at 11-12.

In Garner, it was held that “(t]he use of deadly force

to prevent the escape of all felony suspects, whatever the

circumstances, is constitutionally unreasonable.” Id. at 11.

However, this Court carved out an exception “[wJhere

the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or to others. . . . ” Id. In this case, the appropriate

bright line rule would be: Where the police have the

discretion to either arrest or to issue a citation and a

person has been stopped for a fine-only offense and he

has presented satisfactory identification and is willing to

sign a promise to appear, it is constitutionally unreason-

able to arrest that person unless probable cause to arrest

develops from another source independent of the fine-

only offense. The converse, of course, would be true if the

officer could not reasonably ascertain the person’s iden-

tity or he was not willing to sign a promise to appear.”

There might also have to be an exception for out of state

drivers, for in the case of those drivers, an arrest may be

more easily justified because of the reduced ability to

ensure their presence in court. In the final analysis, how-

ever, for the resident, this would be a workable rule and

as easy to implement as any bright line rule.

C. Applicability To Other Areas. sca

Traffic offenses, of course, are not the only fine-only

regulatory offenses. See Ricci v. Arlington Heights, 116 F.3d

288 (7th Cir. 1997), cert. granted, 522 U.S. 1038, and cert.

dismissed, 523 U.S. 613 (1998). There is no reason to

believe that the rule announced in this case would not

have applicability outside of traffic offenses. However,

the same rationale would apply as well. So long as a

police officer has discretion whether to issue a citation or

;

- Lo

effect a full custodial arrest and the offense is punishable

by a fine, it would be just as unreasonable to arrest a

person off the highway as on when the state’s interests

would be completely satisfied with a citation.

CONCLUSION

For the reasons stated above, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Rosert C. “Bos” Hinton

President, Texas Criminal

Defense Lawyers Assn.

5015 Tracy, Suite 100

Grec WESTFALL

(Counsel of Record)

KEearRNey & WESTFALL

500 Throckmorton St.

Dallas, Texas 75205 #1801

{214) .219-9300- Fort Worth, Texas 76102

(214) 219-9309 (fax) (817) 336-5600

Wim S. H (817) 336-5610 (fax)

Co-Chair, Amicus Committee,

Texas Criminal Defense Lawyers Assn.

307 West 7th Street, Suite 1905

Fort Worth, Texas 76102

(817) 332-5575

(817) 335-6060 (fax)

Counsel for Amicus Curiae

Texas Criminal Defense Lawyers Association

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.