# Amicus Curiae Brief — Atwater v. Lago Vista

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A13

## Record

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

## Text

-—_—_—_—_—_—

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
SJ

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........

10

12

15

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

re

-_-—-~——

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

iv

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

v

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

vi

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 —

1
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.

2

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 .

3

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.

4

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

5

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

6

(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.

_ —---— - ~—

_— —_——_~

7

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

8

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

9

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

10

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

—— _

11

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).

12

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,

— -— -—— —— —_—-_

13

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

14

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

15

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.

16

“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

17

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).

OE

18

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

19

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.

© This appears to have been Officer Turek’s interest in this
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.

20

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.

21

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

22

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

23

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

24

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

25

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).

26

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

27

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.

28

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

j
;

- Lo

29

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A13. Public record. Not legal advice.