Amicus Curiae Brief — Atwater v. Lago Vista

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if Supreme Court, U.S.

No. 99-1408 FILED

teat SEP 11 200

Supreme Court of the United States-

i iar ca ae nese

eS ere ee

GAIL ATWATER, et ai., on

Petitioners,

—_—_VvV.— ~

CITY OF LAGO VISTA, et ail.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES

UNION, THE ACLU OF TEXAS, THE MEXICAN-AMERICAN

LEGAL DEFENSE AND EDUCATIONAL FUND, AND THE

NATIONAL POLICE ACCOUNTABILITY PROJECT OF THE

NATIONAL LAWYERS GUILD, IN SUPPORT OF PETITIONERS

Joseph P. Berra Susan N. Herman

Mexican Legal Defense and (Counsel of Record)

Educational Fund 250 Joralemon Street

140 East Houston Street, Suite 300 Brooklyn, New York 11201

San Antonio, Texas 78205 (718) 780-7945

(210) 224-5476

Steven R. Shapiro

William C. Harrell American Civil Liberties Union

ACLU of Texas Foundation

P.O. Box 3629 125 Broad Street

Austin, Texas 78764 New York, New York 10004

(512) 441-0077 (212) 549-2500

Ut.00

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................... ii

INTEREST OF AMICI ............0-0000000. 0 1

STATEMENT OF THE CASE................. 2

SUMMARY OF ARGUMENT .................. 3

RGRIITID o.oo ci ons sdasassé eee

CUSTODIAL ARREST FOR A FINE-ONLY

OFFENSE, IN THE ABSENCE OF EXIGENT

CIRCUMSTANCES, IS AN UNREASONA-

BLE SEIZURE WITHIN THE MEANING OF

THE FOURTH AMENDMENT ............. 6

A. The History And Core Principles Of The

Fourth Amendment Support Limitations

On Custodial Arrest For Minor Offenses .... 6

B. The Reasonableness Of Custodial Arrests

For Minor Offenses Must Be Judged

Under The Court's Fourth Amendment

I TEE 0 .ocn0 0-0-6005

C. The Intrusiveness Of A Custodial Arrest

Outweighs The State’s Interests In Con-

ducting Such Arrests For Fine-Only

D. Common Law Tradition Supports Prohibi-

tion Of Custodial Arrest For Fine-Only

E. Prohibiting Arrest For Fine-Only Offenses

Is Consistent With General Principles Of

Constitutional Interpretation

CONCLUSION

ie — Ho — - fos of ee ke ee &€ ee €e& e@ 2 e

TABLE OF AUTHORITIES

Page

Cases

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) .. 0... eee 7

Argersinger v. Hamlin,

ss eee eeeeeeeceeneseees 5, 27

Austin v. United States,

509 U.S. 602 (1993)... 2 ee 28

Baldwin v. New York,

PEE CPENEEED cecccccccecccececoeeeces 5, 27

Barnett v. United States,

525 A.2d 197 (D.C.Ct.App. 1987) ............... 8

Camara v. Municipal Court,

Ch MCD occ vccccesceccceceeseeees 7

Carroll v. United States,

Us PED cc cceccoscsceresseoesseces 18

City of Milwaukee v. Nelson,

439 N.W.2d 562 (Wis. 1989)... 0.0020. ee ee, 13

Colorado v. Bertine,

479 U.S. 367 (1987)... 02 eee 23

County of Riverside v. McLaughlin,

i . + see eceaneeeoansteeeenen 15

Delaware v. Prouse,

i a aad ieee neues ene seeds 7, 12

Diaz v. City of Fitchburg,

176 F.3d 560 (Ist Cir. 1999) ...............055. 24

Dunaway v. New York,

a se i die sep hetebsoeeneeeet 1]

Page

Farm Labor Organizing Committee v.

Ohio State Highway Patrol,

95 F.Supp.2d 723 (N.D. Ohio 2000) .............. 10

Fisher v. Washington Met.

Area Transit Auth.,

690 F.2d 1133 (4th Cir. 1982) ...........2..... 8, 13

Florida v. Wells,

eee es OE “eh ves bus oeaddeccu eee 23

Gerstein v. Pugh,

Bee ees SE oa bak baotccecaneuoese. 14

Gramenos v. Jewel Companies, Inc.,

797 F.2d 432 (7th Cir. 1986) ................... 28

Gustafson v. Florida,

Se ee ED «0's a coe acewade ee enue 12, 15

Harmelin v. Michigan,

ee ee Se SE 6 oid Ws be dvideseeesaueaeds 17

Higbee v. City of San Diego,

DUe Fae S70 Coe Gees BOOED oc cc cccccccccccecda 13

Illinois v. Wardlow,

528 U.S. _,

Ss ED 6a a 6G sk be oe oe oes 4,9

Kennedy v. Mendoza-Martinez,

Peer ee CED 6.0 6 vane eenen tvavsanineutas 28

Knowles v. lowa,

See es SEE 6 0005040 beneuweeksn en 11,14

Martinez v. Village of Mount Prospect,

92 F.Supp.2d 780 (N.D. Ill. 2000) ............... )

Maryland v. Macon,

ft 2 Fo PPPPTTeTrerrrrri err 12

National Congress of Puerto Rican

Rights v. City of New York,

OOS DUD Se Gee Ue COUUD ccccccccccceveces we)

New York v. Belton,

ee CED .. ¢.odin ave enas eae seeeeeee Se 15

Paul v. Davis,

ee, SD 6 ca nlecceee cu weeeeseaeueus 16

Payton v. New York,

GO Se, Ge ED cc cece eereeesasceses 7, 11, 14

Ricci v. Village of Arlington Heights,

116 F.3d 288 (7th Cir. 1997),

cert. dism'd as improvidently granted,

i rh, CE ow 06 6656600 eb N eee en eae 8, 13

Richards v. Wisconsin,

ee Se ho wee bewe eens enaeatiaees 12

Robbins v. California,

CEs i'n weeaee csebensaesh wens 12

Rodriguez v. California Highway Patrol,

89 F.Supp.2d 1131 (N.D. Cal. 2000) .............. 9

Scott v. Illinois,

GEE, Bee GUNS Ee 6 bh ce cebasesewenvecsetees 27

South Dakota v. Opperman,

GG, PEED onc week eeuctetvecedeoeun 23

Steagald v. United States,

i ee, DEE « sé eviabe cd ewebs inne tween 12

Page

Tate v. Short.

rE I og ee ee nee 15

Tennessee v. Garner,

REE Ea pei eng My A mene nP enn AUD A 4, 12

Thomas v. Florida,

614 So.2d 468 (Fla. 1993) ................... 8, 24

United States v. Hensley.

I I os ta CCN ie eRe ee 12

United States v. Herring,

35 F.Supp.2d 1253 (D. Or. 1999) _............... s

United States v. Martinez-Fuerte.

ER ERE OR Be ae erie 7, 12

United States v. Place.

Ne a eh in Le Og 12

United States v. Robinson.

RR ee ee ee eee: = 6, 15

United States v. State of New Jersey,

No. 99-5970 (D.N.J.),

available at <http://www.usdoj.gov/

crt/split/documents/jerseysa.htm> ................ 9

United States v. Watson,

EE Ee eh Oe Sues een 19

Welsh v. Wisconsin,

466 U.S. 740 (1984)

(eres ewer es avewneenees passim

Whren v. United States,

517 eS hbchdnghues weaken eh oe passim

Wilson v. Arkansas.

PE 2S cms SL A EY eh Bee J ee 12

Page

Winston v. Lee,

Se Ss ED ge ct aees be60e4e86s ces 12

Wyoming v. Houghton,

i Pn «ous es 6 os tke ee ee N's Ob oeeN 19

Statutes and Regulations

Ala. Code §15-10-3(a)(1) (1999) .. 0.2... 0.000044. 21

Alaska Stat. §11.81.900(b)(9) (Michie 1999) ........ 24

Alaska Stat. §11.81.900(b)(58) (Michie 1999) ........ 24

Alaska Stat. §12.25.030(a)(1) (1999)... 2... ...0..2... 24

Alaska Stat. §12.25.030(b)((2)(A) (Michie 1999) ...... 22

Alaska Stat. §§12.25.030(1) (Michie 1999) .......... 24

Re, Se GOOD 6 ce pe ncceenseseess 24

rr Cran 6 5 sek ncecatvecesuns 24

Ark. Code Ann. §16-81-106(b)(2) (Michie 1999) ..... 21

Cal. Penal Code §836(a)(1) (West 2000) ........... 21

D.C. Code Ann. §23-581(a)(1)(C) (1996)... 2.222... 23

D.C. Code Ann. §23-581(2) (1996) ............... 23

Del. Code Ann. tit. 11, §233(c) (1999) ............ 24

Del. Code Ann. tit. 11, §1904(a) (1999) ........... 24

Del. Code Ann. tit. 11, §1904(a)(1) (1999)... ....... 24

Del. Code Ann. tit. 11, §1904(a)(2) (1999)... ....... 23

Del. Code Ann. tit. 11, §§1904(a)(4)-(6) (1999) ...... 22

Del. Code Ann. tit. 11, §4207 (1999) ............. 24

Del. Code Ann. tit. 21, §4802(g)(1) (1999) ......... 24

Fla. Stat. Ann. §316.614(5) (West 1999) ........... 24

Fla. Stat. Ann. §316.614(8) (West 1999) ........... 24

Fla. Stat. Ann. §318.13(3) (West 1999) ............ 24

Fla. Stat. Ann. §318.14(1) (West 1999) ............ 24

Vil

Page

Fla. Stat. Ann. §§775.08(2)-(3) (West 1999) ........., 24

Fla. Stat. Ann. §901.15(1) (West 1999) ............ 24

Fla. Stat. Ann. §§901.15(6)-(9) (West 1999) ......... 22

Ga. Code Ann. §17-4-20(a) (1999) ............, 22, 24

Ga. Code Ann. §40-8-76.1(b) (1999)... 2.0.0.0... 24

Ga. Code Ann. §40-8-76.1(e)(1) (1999) ............ 24

Idaho Code §19-603(1) (1999) .................. 21

625 Ill. Comp. Stat. Ann. 5/12-603(d) (West 2000) .... 24

725 Ill. Comp. Stat. Ann. 5/102-15 (West 2000) ...... 24

725 Ill. Comp. Stat. Ann. 5/107-2 (West 2000) ....... 24

Ind. Code Ann. §9-19-10-2 (West 2000) ........... 24

Ind. Code Ann. §33-1-12-1 (West 2000) ........... 24

Ind. Code Ann. §35-33-1-1(a)(3) (Michie 2000) ...... 22

Ind. Code Ann. §35-33-1-1(a)(4) (West 2000) ....... 24

Ind. Code Ann. §35-33-1-1(a)(5) (Michie 2000) ...... 22

lowa Code Ann. §804.7(1) (West 1999)............ 21

Kan. Stat. Ann. §22-2401(c)(2)(C) (West 1999) ...... 22

Kan. Stat. Ann. §§22-2401(c)(2)(A)-(C) (West 1999)... 23

Ky. Rev. Stat. Ann. §189.125(6) (Michie 1998) ...... 24

Ky. Rev. Stat. Ann. §431.005(d) (Michie 1998) ...... 24

Ky. Rev. Stat. Ann. §431.005(1)(d) (Michie 1998) .... 24

Ky. Rev. Stat. Ann. §431.005(1)(e) (Michie 1998) .... 22

Ky. Rev. Stat. Ann. §431.005(2)(a) (Michie 1998) .... 22

Ky. Rev. Stat. Ann. §431.060(2) (Michie 1998) ...... 24

Ky. Rev. Stat. Ann. §431.060(3) (Michie 1998) ...... 24

La. Code Crim. Proc. Ann. art. 213 (1) (West 1999) ... 24

La. Code Crim. Proc. Ann. art. 933(1) (West 1999)... . 24

La. Code Crim. Proc. Ann. art. 933(4) (West 1999)... . 24

La. Rev. Stat. Ann. §14.2(6) (West 1999) .......... 24

Vill

La. Rev. Stat. Ann. §14.7 (West 1999) ............ 24

La. Rev. Stat. Ann. §32:295.1(A)(1) (West 1999) ..... 24

Mass. Gen. Laws Ann. ch. 276, §28 (West 1999) ..... 24

Mass. Ann. Laws ch. 276, §28 (West 1999) ......... 22

Mass. Gen. Laws Ann. ch. 90, §13A (West 1999) ..... 25

Md. Ann. Code art. 27 §594B(a) (1999) ........... 24

Md. Code Ann. art. 27 §594B(e) (1996) ........... 23

Md. Code Ann. art. 27 §594B(f) (1996) ............ 23

Md. Code Ann., Transp. §22-412.3(b) (1999) ........ 24

Md. Code Ann., Transp. §27-101(a)(2) (1999) ....... 24

Md. Code Ann., Transp. §27-106(b) (1999) ......... 24

Me. Rev. Stat. Ann. tit. 17-A §4-B(1)-(3)

‘2, PEEREREREEEESERESERE LEER EE 24

Me. Rev. Stat. Ann. tit. 17-A §4-B(3) (West 1999) .... 24

Me. Rev. Stat. Ann. tit. 17-A §15(1)(a)(5)-(8)

2... RAPPER EOCREETECEEL OLE EA EE TEE 23

Me. Rev. Stat. Ann. tit. 17-A §15(1)(A) (West 1999) .. 22

Me. Rev. Stat. Ann. tit. 17-A §15(1)(A)(2)

‘6 ee eee a 24

Me. Rev. Stat. Ann. tit. 17-A §15(1)(B) (West 1999)... 24

Me. Rev. Stat. Ann. tit. 29-A §2081 (3-A)

SE GOED oct ces Se aretha whee svecnctes 24

Me. Rev. Stat. Ann. tit. 29-A §2081 (D) (West 1999) .. 24

Me. Rev. Stat. Ann. tit. 29-A §101(85) (West 1999) ... 24

Mich. Comp. Laws Ann. §257.6a, (West 1999) ....... 25

Mich. Comp. Laws Ann. §257.710e(3) West 1999) ... . 25

Mich. Comp. Laws Ann. §257.710e(7) (West 1999) ... 25

Mich. Comp. Laws Ann. §257.907(2) (West 1999) .... 25

Mich. Comp. Laws Ann. §764.15(1)(a) (West 1999) .. . 25

Mich. Comp. Laws Ann. §§764.15(1)(h)-(i)

CN EE cece ce sbeceee es wewecsesocese 22

Page

Mich. Comp. Laws Ann. §764.15(1)(m) (West 2000) . . . 22

Minn. Stat. Ann. §629.34(1)(c)(1) (West 1999) ....... 21

Miss. Code Ann. §99-3-7(1) (1999)... ....0........ 21

Mont. Code Ann. §45-2-101(48) (1999) ............ 25

Mont. Code Ann. §46-1-202(14) (1999)... 0.0.0.2... 25

Mont. Code Ann. §46-6-311(1) (1999) ......... 23, 25

Mont. Code Ann. §61-13-103(1) (1999)... ......... 25

Mont. Code Ann. §61-13-104(1) (1999)... ......... 25

N.C. Gen. Stat. §14-3.1(a) (2000) ................ 25

N.C. Gen. Stat. §§15A-401(b)(1)-(2)(b) (2000) ... 2... 25

N.C. Gen. Stat. §15A-401(b)(2)(b) (2000) .......... 23

N.C. Gen. Stat. §15A-401(b)(2)(d) (2000) ..........22

N.C. Gen. Stat. §20-135.2A(e) (2000) ............. 25

N.D. Cent. Code §29-06-15(1)(a) (1999) ........... 21

N.D. Cent. Code §29-06-15(1)(f) (1999) ...........22

N.H. Rev. Stat. Ann. §594.10(1)(b) (1999) .. 2.2.00... 22

N.H. Rev. Stat. Ann. §594.10(1)(c) (1999) .......... 23

N.J. Stat. Ann. §39:5-25 (West 2000) ............. 22

N.M. Stat. Ann. §31-1-7(A) (Michie 2000) ......... 22

N.Y. Crim. Proc. Law §140.10(1)(b)

A a ae ee ee 22

Neb. Rev. Stat. §29-404.02(2) (1999) .......... 23, 25

Neb. Rev. Stat. §29-404.02(3) (1999) ............. 22

Neb. Rev. Stat. §60-60,272 (1999) ............... 25

Neb. Rev. Stat. Ann. §29-404.02(2) (1999) ......... 25

Neb. Rev. Stat. Ann. §60-6,270(1) (1999) .......... 25

Nev. Rev. Stat. Ann. §171.124(1)(a) (Michie 1999) ... . 2]

Ohio Rev. Code Ann. §2935.03(B)(1)

I col a ole 2 id tI ae 22

Okla. Stat. Ann. tit. 22, §196(1) (West. 1999) ....... 21

Or. Rev. Stat. §§133.310(1)(a)-(d) (1999) .......... 25

Or. Rev. Stat. §133.310(1)(b) (1999)... 2... 2.0.0... 24

Or. Rev. Stat. §133.310(1)(d) (1999) .............. 24

Or. Rev. Stat. §§133.310(1)(d)-(g) (1999) .......... 22

Or. Rev. Stat. §133.310(6)(a) (1999) .............. 22

ek oe tee eee eewenn 25

eR KR ee ee 24

Ge. Rev. Bam. 161.5465 (ISPP) . www cee: 24, 25

Or. Rev. Stat. §811.210(1)(a) (1999)... 2... 2.0.0... 25

Or. Rev. Stat. §811.210(2)(b) (1999) 2... 2.222, 25

me me kt 25

18 Pa. Cons. Stat. Ann. §106(b)(8) (West 1999) ...... 24

Pa. R. Crim. P. 101(2)(a) (West 1999) ......... 24,25

Pa. R. Crim. P. 101(2)(c) (West 1999) ............ 24

18 Pa. Stat. Ann. §§106(b)(1)-(9) ............0... 25

75 Pa. Stat. Ann. §4581(2) (2000) ............... 25

75 Pa. Stat. Ann. §4581(3)(b) (2000) ...........2.. 25

R.I. Gen. Laws §11-1-2 (1999) ................ 24,25

R.I. Gen. Laws §12-7-3 (1999) ............ 23, 24, 25

R.I. Gen. Laws §31-22-22(g) (1999) .............. 25

R.I. Gen. Laws §31-22-22()) (1999) ............-.. 25

S.C. Code Ann. §56-5-6520 (Law. Co-Op. 1999) ..... 25

S.C. Code Ann. §56-5-6540 (Law. Co-Op. 1999) ..... 25

S.D. Codified Laws §22-6-7 (Michie 2000) ......... 24

S.D. Codified Laws §23A-3-2(1)

Ee 21, 24, 25

S.B. Codified Laws §32-38-1 (Michie 2000) ........ 21

S.D. Codified Laws §32-38-5 (Michie 2000) ........ 25

Tenn. Code Ann. §40-7-103(a)(1) (1999) .. 0. ....... 21

Tenn. Code Ann. §55-—9-603 (1999) .............. 25

Page

Tex. Crim. P. Code. Ann. §§14.01(a)-(b)

Es 64 6.0 dS S OOO Rane eee ee 6, 22

Tex. Crim. P. Code. Ann. §§14.03(2)-(4)

lL ee er ee eae 6, 22

Tex. Transp. Code Ann. §543.001

I Eg te Sel he oe a. te 2, 6, 17, 25

Texas Transp. Code Ann. §543.005

EE os a Gb a e's as “ae an ee 2, 6, 18

Texas Transp. Code Ann. §545.413(d) (West 1999) .. 2, 17

Utah Code Ann. §41-6-182(2) (1999) ............. 25

Utah Code Ann. §76-1-601(6) (1999) ............. 25

Utah Code Ann. §77-7-2(1) (1999) .......0000.... 21

Utah Code Ann. §77-7-2(3) (1999) .. 0... 000000... 23

Utah Code Ann. §41-6-185(1) (1999) ......0000..., 25

Va. Code Ann. §18.2-8 (Michie 2000) ............. 25

Va. Code Ann. §19.2-81(7) (Michie 2000) ....... 22. 25

Va. Code Ann. §46.2-113 (Michie 2000) ........... 25

Va. Code Ann. §46.2-1094(A) (Michie 2000) ........ 25

Va. Code Ann. §46.2-1094(G) (Michie 2000) ........ 25

Vt. R. Crim. P. 3(a)(2)(C) (2000)... 2.2. 2D

Vt. R. Crim. P. 3(a)(3)-(4) (2000)... 23

W. Va. Code §62-10-6 (2000) ..............2..., 21

Wash. Rev. Code Ann. §9A.04.040(1) (1999)... 20... 25

Wash. Rev. Code Ann. §10.21.100 (1999) .........., 25

Wash. Rev. Code Ann. §§10.31.100(1)-(2) (West 1999) . 22

Wash. Rev. Code Ann. §§10.31.100(3)-(4) (West 1999) . 22

Wash. Rev. Code Ann. §46.61.688(3) (1999) ........ 25

Wash. Rev. Code Ann. §46.61.688(5) (1999) ........ 25

Wash. Rev. Code Ann. §46.63.110(1) (1999) ........ 25

Wyo. Stat. Ann. §7-2-102(b)(iii) (Michie 2000) ...... 23

Other Authorities

ALI Model Code of Pre-Arraignment

ee tg Oe 16, 23

Blackstone, William,

4 COMMENTARIES *289 ........... Pat ee ae anal 19

Bohlen. Francis H., “Arrest With

and Without a Warrant,”

gc och eee se eed wen 21

Chitty, Joseph, 1 A PRACTICAL

TREATISE ON THE CRIMINAL LAW

(1816)(Garland Publishing, Inc. 1978) ............. 19

Cole, David, "Race, Policing, and

the Future of Criminal Law,”

26 Hum.Rts. (Summer 1999) ...........---0505- 10

Cole, David, No EQUAL JUSTICE:

RACE AND CLASS IN THE AMERICAN

CRIMINAL JUSTICE SYSTEM (1999) .............-. i)

Davies, Thomas Y., "Recovering

the Original Fourth Amendment,"

|) Na OS ee ee 20

Doernberg, Donald L. & Zeigler,

Donald H., "Due Process, Versus

Data Processing: An Analysis

of Computerized Criminal History

Information Systems,"

Re R OM) Yer re ee eee 16

Feeley, Malcolm M., THE PROCESS

is THE PUNISHMENT (1979) .. 0.0... cee ccc ewes 28

Feeney, Floyd, THE POLICE AND

PRETRIAL RELEASE (Lexington 1982) ............. 20

Fisher, Edward C.,

we Fog 3, eee es 19, 20

Page

Folk, Thomas R. "The Case for

Constitutional Constraints

Upon the Power to Make Full

Custody Arrests,"

48 U.Cin.L.Rev. 321 (1979) .................... 18

Goebel, Jr., Julius, & Naughton,

T. Raymond, LAW ENFORCEMENT

IN COLONIAL NEW YorRK (1944)

(Patterson Smith Reprint Series, 1970)

Hale, Matthew, PLEAS OF THE CROWN:

METHODICAL SUMMARY 92 (1678)

(P. R. Glazebrook ed., Professional

Books Ltd. 1972)

Harris, David A., "The Stories,

The Statistics, and the Law:

Why ‘Driving While Black Matters."

84 Minn.L.Rev. 265 (1999)

Kennedy, Randall, RACE, CRIME,

AND THE LAw (1997)

LaFave, Wayne R., "‘Case-by-Case

Adjudication’ Versus ‘Standardized

Procedures’: The Robinson Dilemma,"

1974 Sup.Ct.Rev. 127

LaFave, Wayne R..,

ARREST: THE DECISION TO TAKE

A SUSPECT INTO CuSsTODY (1965) ............... 20

LaFave, Wayne R..,

SEARCH AND SEIZURE (3d ed. 1996)

Landynski, Jacob, SEARCH AND SEIZURE

AND THE SUPREME CourT (1966)................ 6

XIV

Page

Lasson, Nelson B., THE HISTORY AND

DEVELOPMENT OF THE FOURTH AMEND-

MENT TO THE UNITED STATES CON-

oo a ese 4,7

O'Neill, Timothy,

No Stops for Seat Belts,

. -. SS & & BPeeeveverer ty tr 25

Roberts, Dorothy E., "Foreword:

Race, Vagueness, and the Social

Meaning of Order-Maintenance Policing,"

89 J.Crim.L. & Criminology (1999) .............. 10

Salken, Barbara C., "The General

Warrant of the Twentieth Century?

A Fourth Amendment Solution to

Unchecked Discretion to Arrest

for Traffic Offenses,"

62 Temple L.Rev. 221 (1989) ............... 16, 19

Schroeder, William A., "Warrantless

Misdemeanor Arrests and the

Fourth Amendment,"

. f 0 mee, fares foes 20

Stephen, James F.. 1 A HISTORY OF

THE CRIMINAL LAW OF ENGLAND

(London, MacMillian 1883) ............... 5, 19, 20

Warner, Sam B., "Uniform Arrest Act,"

_ - RS S| eee eee 20

Wilgus, Horace L., "Arrest

Without a Warrant,"

22 Mich.L.Rev. 541 (1923-24) ............206- 5, 20

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution. In support of these

principles, the ACLU has appeared before this Court in

numerous Fourth Amendment cases, both as direct counsel

and as amicus curiae. The ACLU of Texas is one of its

statewide affiliates. Because this case addresses an impor-

tant Fourth Amendment question, its proper resolution is a

matter of substantial concern to the ACLU and its members.

For over 35 years the Mexican American Legal Defense

and Educational Fund (MALDEF) has fought to promote

and protect the rights of Latinos in the United States.

MALDEF’s interest in Fourth Amendment issues stems

from our Immigrant Rights and Access to Justice program

areas, which currently monitor police conduct for compli-

ance with the Fourth Amendment, and seek to address issues

of racial/ethnic profiling by law enforcement agencies.

MALDEF has a substantial interest in the proper resolution

of this case, to ensure full protection of the rights of

members of the Latino community.

The National Police Accountability Project of the Na-

tional Lawyers Guild is dedicated to protecting all persons

from the unlawful or unconstitutional use of police power.

The Project provides information and resources necessary

for police misconduct litigation and support for legislative

efforts to strengthen remedies for victims of police abuse.

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6,

counsel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel, made a monetary contribution to the preparation or submission

of this brief.

STATEMENT OF THE CASE

Gail Atwater was driving her two children home from

soccer practice one afternoon, at a speed of fifteen miles per

hour through a residential neighborhood in Lago Vista,

Texas. None of the three was wearing a seat belt. Atwater

was stopped by City of Lago Vista Police Officer Bart

Turek, who screamed at her that they had met before (sever-

al months previously Turek had stopped Atwater, apparently

suspecting that her son was riding in the car without a seat

belt, which turned out not to be the case) and that this time

she was going to jail. Atwater v. City of Lago Vista, 165

F.3d 380, 382 (Sth Cir. 1999).

Texas law provides that failure to wear a seat belt is a

misdemeanor, subject to a maximum punishment of $50.

Texas Transp. Code Ann. §545.413(d) (West 1999). Texas

law allowed Officer Turek the discretion to issue a citation

for this offense, id. §543.005, or to make a custodial arrest,

id. §543.001. Neither the statute nor Lago Vista police

department policy provides any guidelines or criteria for of-

ficers on how to decide between a citation and an arrest in

such circumstances. 165 F.3d at 383.

Officer Turek chose to arrest Atwater for the seat belt

offense. After what was described by witnesses as a "ti-

rade" on his part, Turek took Atwater into custody, hand-

cuffing her behind her back, and refusing her request that

she be allowed to take her six-year-old daughter and four-

year-old son to a neighbor's house two houses away from

where they were standing, rather than have them accompany

her to jail. /d. at 382.° Atwater was taken to the police

* When Turek demanded Atwater’s driver's license and proof of in-

surance card, Atwater replied that those documents were in a purse

stolen several days previously. Turek subsequently added charges of

(continued...)

station in Turek’s squad car, where she was required to

empty her pockets, remove her shoes and glasses, and have

her picture taken. She then spent about an hour in a jail

cell before being taken to a magistrate who released her

when she posted bond. Her children were spared the trip to

the station house when a neighbor happened on the scene.

Atwater pleaded no contest to the seat belt charge.

Because this incident caused Atwater and her children ex-

treme emotional distress, requiring medication and coun-

seling, they brought an action pursuant to 42 U.S.C. §1983,

alleging, inter alia, that Turek’s arrest was an unreasonable

seizure under the Fourth Amendment. The VU. S. District

Court for the Western District of Texas granted the defen-

dants summary judgment, a panel of the Fifth Circuit re-

versed, 165 F.3d 380, and the Fifth Circuit en banc reversed

the panel, holding that the arrest was not unconstitutional

under current law. 195 F.3d 242 (1999).

SUMMARY OF ARGUMENT

The Fourth Amendment prohibits custodial arrest for

fine-only misdemeanors, at least in the absence of exigent

circumstances. The Texas statute authorizing custodial ar-

rest for any violation of its traffic code resembles the gener-

al warrants that were one of the principal motivating factors

* (...continued)

driving without a license and insurance card to the original seat belt

charge against Atwater, but these charges were dismissed on the same

day they were filed. 195 F.3d 242, 252 (Sth Cir. 1999)(en banc)

(Dennis, J., dissenting). Under Texas law, driving without proof of

insurance is neither a crime nor an offense, see id., and failure to carry

or exhibit a driver's license as a first offense is a fine-only misdemean-

or, see id., so even if the after-the-fact additional charges were deemed

to have been legitimate, Ms. Atwater’s arrest was still, at most, for a

fine-only misdemeanor.

behind the American Revolution and the drafting of the

Fourth Amendment. See Nelson B. Lasson, THE HISTORY

AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION at 13-78 (1937).

The Fourth Amendment axiom that excessive police dis-

cretion can lead to arbitrary enforcement is demonstrated by

Atwater’s case; the potential for racially discriminatory en-

forcement, see Illinois v. Wardlow, 528 U.S. __, 120 S.Ct.

673, 677, 682 nn.9-10 (2000)(Stevens, J., dissenting), is

even more alarming.

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

Court declined to question whether stops for traffic offenses

are in fact pretexts to investigate suspected drug offenders.

If there are no objective limitations on the more intrusive

power to arrest, other than probable cause, states may, as

some already have, authorize arrest for a vast array of of-

fenses -- not only the entire traffic code, as in Texas, but

littering, jaywalking and perhaps even parking violations.

Law enforcement officers then have license to select anyone

at all, wait for them to commit any one of thousands of pos-

sible infractions, and then place their target under arrest in

order to conduct a search incident to arrest of the designated

person and vehicle. Arrests would, in truth, become inci-

dent to the desired searches.

What is a "reasonable" seizure under the Fourth Amend-

ment must be determined under the Court’s usual balancing

test, weighing the relative intrusion on individual interests

against the state’s legitimate needs. Tennessee v. Garner,

471 U.S. 1 (1985). The Fifth Circuit is incorrect in as-

serting that there is no need to apply the balancing test in

this case, mischaracterizing dicta in Whren, 517 U.S. at 817,

as assuming the result of a balance of interests not yet con-

ducted. Presuming that the legislature may authorize offi-

cers to arrest for any trivial infraction, in addition to beg-

ging the question posed in this case, flies in the face of the

balance struck at common law, which authorized arrest only

for fairly serious "misdemeanors" involving a breach of the

peace, see 1 James F. Stephen, A HISTORY OF THE CRIM-

INAL LAW OF ENGLAND 193 (London, MacMillian 1883);

Horace L. Wilgus, “Arrest Without a Warrant," 22 Mich.L.

Rev. 541, 572-77 (1923-24). Current "misdemeanors" or

minor offenses which have actually led to custodial arrests,

like eating on the subway, failure to have a bell or gong on

one’s bicycle, littering, and "walking as to create a hazard,"

radically expand the arrest authority granted at common law.

Custodial arrest is highly intrusive. It carries with it not

only the automatic right to search an arrestee and his or her

vehicle incident to the arrest, but also the right to use some

degree of necessary force to effect the arrest, to transport

the person to the police station, to handcuff, book and fin-

gerprint the person, to detain the person for a period of time

(presumably up to 48 hours) before presentation to a magis-

trate, and to maintain a record of the arrest.

On the other side of the balance, the state ordinarily has

no real need to take an individual into custody for a fine-

only offense. In a case like Atwater’s, there was no breach

of the peace, no reason to fear that Atwater would abscond,

and no need whatever to arrest rather than issue a summons.

The legislature's choice not to impose any jail time for

a code violation is the best indication of the state’s level of

interest in taking custody of individuals who violate such

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

other areas of constitutional interpretation, the Court has de-

ferred to the legislature’s classification of offenses as fine-

only or not, predicating the existence of rights like the right

to counsel or right to jury trial on whether or not an offense

leads to incarceration. See Argersinger v. Hamlin, 407 US.

25 (1972); Baldwin v. New York, 399 U.S. 66 (1970). Pro-

hibiting custodial arrest for fine-only offenses in the absence

of exigent circumstances would provide a clear and conven-

ient bright-line rule for courts and police to follow, re-

specting a line created by the legislature rather than sub-

jecting every arrest to after-the-fact scrutiny by the courts.

Arrest may not be used as a summary punishment, im-

posing jail time that no legislature has authorized.

ARGUMENT

CUSTODIAL ARREST FOR A FINE-ONLY

OFFENSE, IN THE ABSENCE OF EXIGENT

CIRCUMSTANCES, IS AN UNREASONABLE

SEIZURE WITHIN THE MEANING OF THE

FOURTH AMENDMENT

A. The History And Core Principles Of

The Fourth Amendment Support Limi-

tations On Custodial Arrest For Minor

Offenses

Texas law delegates to every peace officer the power to

arrest, and therefore to search incident to that arrest, see

United States v. Robinson, 414 U.S. 218, 221-22 (1973),

any person who has committed any infraction of its traffic

code, Tex. Transp. Code Ann. §543.001 (West 1999), or

any one of a broad array of other offenses. See Tex. Crim.

P. Code Ann. §§14.01(a)-(b), 14.03 (2)-(4) (West 1998).

No arrest warrant is required; no guidelines are provided.

This extravagant grant of discretionary authority is

reminiscent of the general warrants the framers of the

Fourth Amendment found so offensive. In fact, it was

exactly such excessive delegations of the power to search

and seize (like the statutes authorizing writs of assistance)

that the Fourth Amendment was intended to prevent. See

Jacob Landynski, SEARCH AND SEIZURE AND THE SUPREME

COURT 30-42 (1966). It is by now familiar history that the

framers’ dismay at statutes granting such general preroga-

tives was one of the principal motivating factors, both for

the Revolution and the creation of the Fourth Amendment

itself. See Lasson, supra, at 13-78 (events during the thirty

years preceding the drafting of the Fourth Amendment in-

spired the framers to elevate the principle of "reasonable-

ness" to one of constitutional significance). The decisions

of this Court consistently identify excessive police discretion

as the central concern of the Fourth Amendment. See Pay-

ton v. New York, 445 U.S. 573, 583-85 (1980). "The essen-

tial purpose of the proscriptions in the Fourth Amendment is

to impose a standard of ‘reasonableness’ upon the exercise

of discretion by government officials, in order to safeguard

the privacy and security of individuals against arbitrary in-

vasions.". Delaware v. Prouse, 440 U.S. 648, 653-54

(1979). See also Almeida-Sanchez v. United States, 413

U.S. 266, 270 (1973): United States v. Martinez-Fuerte, 428

U.S. 543, 559 (1976); Camara vy. Municipal Court, 387 U.S.

527, 532-33 (1967).

Recent history underscores the need to respect the

Fourth Amendment’s traditional concerns by imposing ap-

propriate limitations on the discretion to arrest. In Whren vy.

United States, 517 U.S. 806, the Court declined to examine

whether stops for traffic offenses were in fact pretexts to

investigate suspected drug offenders, believing that it would

be inappropriate as part of Fourth Amendment analysis to

explore the subjective motivation of individual officers. If

the Fourth Amendment is also construed as not imposing

any objective limitations on the arrest power, other than

probable cause, any state or municipal legislature may au-

thorize custodial arrest for any “offense” at all, no matter

how trivial, and the potential for abuse of discretion and

selective enforcement is magnified exponentially.

This is more than a hypothetical concern. Infractions

today’s legislatures have already constituted as arrestable

offenses, and which have actually led to full custodial ar-

rests, include, in addition to the Texas seat belt offense,

eating on the subway, see Fisher v. Washington Met. Area

Transit Auth., 690 F.2d 1133 (4th Cir. 1982); failure to have

a bell or gong on one’s bicycle, see Thomas v. Florida, 614

So.2d 468 (Fla. 1993); failure to obtain a license for a

telemarketing business, see Ricci v. Village of Arlington

Heights, 116 F.3d 288 (7th Cir. 1997), cert. dism'd as im-

providently granted, 523 U.S. 613 (1998); littering, see

United States v. Herring, 35 F.Supp.2d 1253 (D. Or. 1999);

and "walking as to create a hazard," see Barnett v. United

States, 525 A.2d 197, 198 (D.C.Ct.App. 1987).

For some overzealous officers, the temptation to use

this blanket authority to trawl for drug offenders could be

overwhelming. Officers in permissive jurisdictions could

target anyone at all, watch their target until she or he

committed some infraction, even if only littering or jay-

walking, and then claim the right to perform a search inci-

dent to a strategic arrest of the individual, and in cases of

traffic offenses, search the individual’s vehicle as well. If

the opportunity to declare virtually anyone to be under arrest

is too readily available, the search incident to arrest doctrine

is effectively turned on its head, with arrests becoming

incident to the real goal of suspicionless searches.

The facts of Thomas v. Florida, 614 So.2d 468, are in-

structive and alarming. Carl Thomas was riding his bicycle

through a predominantly black neighborhood in Orlando

known for drug activity. A local officer, apparently having

no objective reason to stop Thomas on suspicion of any

other criminal activity, arrested him for the offense of riding

a bicycle not equipped with a bell or gong (under a city or-

dinance whose dubious validity under Florida jaw had not

yet been litigated, apparently because it was so rarely

enforced). Conducting a search incident to this ingenious

arrest, the officer found a handgun in Thomas's pocket. /d.

at 469. Whren instructs us not to inquire into the officer's

reason for suddenly deciding to enforce this vestigial

ordinance.

While Atwater’s case proves the conventional Fourth

Amendment wisdom that excessive delegations of arrest au-

thority can lead to arbitrary enforcement, or enforcement out

of personal vendetta.’ Thomas’s case raises the specter of

the rampant discriminatory enforcement that can take place

in the absence of objective limits on legislative grants of

arrest power, with its concomitant search power. Sadly, the

fear that excessive grants of discretion will lead to racially

discriminatory law enforcement is more than hypothetical.

See Illinois v. Wardlow, 120 S.Ct. at 682 nn.9-10 (Stevens,

J., dissenting). Historical prejudices against minorities, as

well as more recent cultural prejudices against immigrants,

find expression in unbridled discretion. Courts across the

country are increasingly recognizing claims based on the

practice of racial profiling, as that issue moves to the fore-

front of national consciousness.* It is not only in border

* Judge Garza took judicial notice on the basis of his sixty years as a

Texas lawyer that the usual procedure in Texas traffic stops is for the

officer to issue a citation, 195 F.3d at 246 (Garza, R., J., dissenting),

and concluded that Atwater was singled out for improper reasons.

* See Martinez v. Village of Mount Prospect, 92 F.Supp.2d 780 (N.D.

if}. 2000\approving settlement agreement including enactment of policy

banning racial profiling); United States v. State of New Jersey, No. 99-

$970 (D.N.J.), available at <http://www.usdoj.gov/crt/split/documents/

jerseysahtm> (consent decree resolving U.S. Department of Justice

racial profiling claim against New Jersey State Police); Rodriguez v.

Catifornia Highway Patrol, 89 F.Supp.2d 1131 (N.D. Cal. 2000)(target-

ing of African-American and Latino drivers); National Congress of

Puerto Rican Rights v. City of New York, 191 F.R.D. 52 (S.D.N.Y.

1999) Terry stops targeting African-American and Latino individuals on

the basis of race and national origin). See generally David Cole, NO

BevAL JusTice: RACE AND CLASS IN THE AMERICAN CRIMINAL

Justice SYSTEM (1999); Randall Kennedy, RACE, CRIME, AND THE LAW

(continued...)

states like Texas that local police, frequently responding to

community prejudices, single out people of Mexican appear-

ance in order to check their immigration status. See, e.g.,

Farm Labor Organizing Committee v. Ohio State Highway

Patrol, 95 F.Supp.2d 723, 737 (N.D. Ohio 2000). Custodial

arrest, as a manner of seizure and as a means of initiating

and subjecting individuals to process, must be subject to a

reasonableness inquiry that balances governmental interests

with an individual’s Fourth Amendment interests, see

Atwater v. City of Lago Vista, 195 F.3d at 247 (Garza, R..

J., dissenting), 246-47 (Wiener, J., dissenting), 254 (Dennis,

J., dissenting), if the courts are not to abdicate the responsi-

bility of ensuring reasonably evenhanded law enforcement.°

The fear that legislatures will condone and encourage

suspicionless searches is also more than hypothetical. The

lowa legislature, for example, in a candid attempt to spare

individuals the burden of custodial arrest in circumstances

where what the legislature really wanted was to allow other-

wise impermissible searches of cars, tried to confer the

power to search on all officers who stop people for traffic

offenses, regardless of whether or not they conduct an ar-

* (...continued)

(1997); David A. Harris, "The Stories, The Statistics, and the Law:

Why ‘Driving While Black Matters," 84 Minn.L.Rev. 265 (1999); David

Cole, “Race, Policing, and the Future of Criminal Law," 26 Hum.Rts. 2

(Summer 1999); Dorothy E. Roberts, "Foreword: Race, Vagueness, and

the Social Meaning of Order-Maintenance Policing,” 89 J.Crim.L. &

Criminology 775 (1999).

* The Whren Court suggested that any problem with discriminatory en-

forcement could be addressed through litigation under the Equal Protec-

tion Clause. /d. at 813. For an explanation of why equal protection

claims are not an adequate substitute for control over excessive police

discretion, see Brief Amicus Curiae of the American Civil Liberties

Union in Support of Petitioners at 10-11 n.4, Whren v. United States,

517 U.S. 806 (1996)(No. 95-5841).

rest. Now that the Court has invalidated that effort to sever

the arrest and its incident search, Knowles v. lowa, 525 U.S.

113 (1998), state or municipal legislatures sharing the lowa

legislature’s goal of permitting searches not based on proba-

ble cause must authorize, and insist on, custodial arrests

rather than traffic citations. State or local jurisdictions will

be encouraged to emulate Texas by permitting arrest for

traffic offenses, perhaps even for parking violations, as a

predicate for allowing their officers to conduct otherwise

unjustifiable searches.

The searches and arrests in such cases must be deemed

unreasonable within the meaning of the Fourth Amendment,

both because of the excessive, unreasonable delegation of

discretion, and because, on balance, the state's interest in

enforcing minor offenses does not reasonably outweigh the

individual’s interest in liberty, privacy, and dignity.

B. The Reasonableness Of Custodial Ar-

rests For Minor Offenses Must Be

Judged Under The Court’s Fourth

Amendment Balancing Test

When Gail Atwater was transported to the police sta-

tion, she was subjected to a full custodial arrest. See Duna-

way v. New York, 442 U.S. 200, 213-14 (1979). Because

this Court has always recognized that custodial arrest is the

gravest intrusion on an individual’s liberty and privacy, it

has strictly observed the requirement that any arrest must be

based on probable cause. /d. at 208. The Court has also

found arrests to be unreasonable, even when based on prob-

able cause, in a variety of cases, sometimes requiring arrest

warrants as a precondition to a valid arrest, see Payton v.

New York, 445 U.S. at 585 ("a warrantless arrest of a person

is a species of seizure required by the Amendment to be

reasonable"); Welsh v. Wisconsin, 466 U.S. 740 (warrantless

home arrest for misdemeanor requires particularly exigent

circumstances); see also Steagald v. United States, 451 U.S.

204 (1981)(search warrant required for arrest in another’s

home), and sometimes imposing limitations on the method

of arrest, see Tennessee v. Garner, 471 U.S. 1 (limitation on

use of deadly force in arrest); Wilson v. Arkansas, 514 U.S.

927 (1995)(knock-and-announce limitation on execution of

warrants); Richards v. Wisconsin, 520 U.S. 385 (1997)

(same).

As the Court has explained on many occasions, whether

Or not an arrest is reasonable must be determined by “bal-

anc[ing] the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the impor-

tance of the governmental interests alleged to justify the

intrusion." Tennessee v. Garner, 471 U.S. at 8. See also

United States v. Place, 462 U.S. 696, 703 (1983); Winston

v. Lee, 470 U.S. 753, 760 (1982); United States v. Hensley,

469 U.S. 221, 228 (1985): Delaware v. Prouse, 440 U.S. at

654;. United States v. Martinez-Fuerte, 428 U.S. at 556-62.

While the Court has not yet addressed the question of

what limitations the Fourth Amendment imposes on the

power to arrest for minor offenses, a number of Justices

have expressed concern about the need to limit the power to

arrest under such circumstances. See Gustafson v. Florida,

414 U.S. 260, 266-67 (1973)(Stewart, J., concurring)("a per-

suasive claim might have been made .. . that the custodial

arrest of the petitioner for a minor traffic offense violated

his rights under the Fourth and Fourteenth Amendments");

Robbins v. California, 453 U.S. 420, 450 n.11 (1981)

(Stevens, J., dissenting); cf. Maryland v. Macon, 472 U.S.

463, 471 (1985)("[w]e leave to another day the question

whether the Fourth Amendment prohibits a warrantless ar-

rest for the state law misdemeanor of distribution of obscene

materials" )(opinion of the Court by O’Connor, J.); Welsh v.

Wisconsin, 466 U.S. at 749 n.11 (leaving open the question

of whether warrantless arrest in the home for a nonjailable

offense is ever reasonable, even if exigent circumstances

exist)(opinion of the Court by Brennan, J.). Three Terms

ago, the Court granted certiorari in Ricci v. Village of Ar-

lington Heights, 116 F.3d 288, to consider the question of

whether petitioner's arrest for violation of a fine-only

municipal ordinance by operating a telemarketing business

without a license was an unreasonable seizure, but subse-

quently dismissed certiorari as improvidently granted, 523

U.S. 613 (1998)(No. 97-501).°

The en banc majority below took as dispositive of the

certiorari question in this case, and in Ricci, dicta from the

Court’s decision in Whren v. United States, 517 U.S. at 817,

commenting that if an arrest is based on probable cause,

"with rare exceptions . . . the result of that balancing is not

in doubt." See 195 F.3d at 243. While it is understandable

that lower federal and state courts have been reluctant to

venture into territory not previously charted by this Court,

the dicta in Whren cannot be read as obviating the need to

balance the state and individual interests in this case. First,

what Whren found to be constitutionally reasonable was

only a stop based on probable cause that a traffic offense

was being committed, not an arrest. Whren was not placed

under arrest until the officers observed illegal drugs in plain

° The Court has left this question open for so long that some observers

have assumed that the Court’s inaction is an implicit rejection of the

argument that the Fourth Amendment imposes limitations on the arrest

power beyond probable cause. See, e.g., Wayne R. LaFave, SEARCH

AND SEIZURE §5.1(c) at 23 (3d ed. 1996); Higbee v. City of San Diego,

911 F.2d 377, 379 n.2 (9th Cir. 1990). Even if they do not simply

assume the Fourth Amendment to be so limited, some state and lower

federal courts have announced that they prefer to await the Supreme

Court’s lead rather than engaging in independent analysis of what

common law requirements the Fourth Amendment incorporates with re-

spect to arrest. See, eg. Fisher, 690 F.3d at 1139 n.6; City of

Milwaukee v. Nelson, 439 N.W.2d 562, 570 (Wis. 1989).

view during the traffic stop. 517 U.S. at 809. Second, al-

though the Court remarked that the balancing analysis has

been reserved for "extraordinary" or "extreme intrusions, id.

at 818, the Court went on to list cases in which various lim-

itations, usually gleaned from common law, were added to

what had previously been assumed by the Court to be rea-

sonable arrests.’ Overreading the Whren dicta simply begs

the question posed herein by assuming the result of a bal-

ancing not yet conducted.

The offenses for which custodial arrest was permitted at

common law -- typically serious offenses involving breach

of the peace, see infra, at pp.19-20 -- could indeed be pre-

sumed, on balance, to be reasonable occasions for custodial

arrests. The state's interest in restoring the peace after a

disruptive infraction could reasonably be viewed as presump-

tively outweighing the individual’s interest in remaining

free. Whether the state is entitled to the same presumption

where an arrest is for failing to wear a seat belt or operating

a business without a license is a question that has never

been considered by this Court. It is because the world of

regulatory offenses has proliferated in a manner the common

law could not have imagined that it has become necessary

for the courts to decide whether arrests for petty offenses

are reasonable, instead of assuming that they are simply be-

cause a legislature or city council has granted the preroga-

tive to arrest. Legislatures are not the final arbiter of what

constitutes a reasonable arrest practice. See Knowles v.

lowa, 525 U.S. 113.

” Before Payton v. New York was decided, for example, the Court de-

clared that it had never “invalidated an arrest based on probable cause

because the officers failed to secure a warrant,” see, e.g., Gerstein v

Pugh, 395 U.S. 103, 113 (1975), and that probable cause was thus the

only requirement for a valid arrest.

C. The Intrusiveness Of A Custodial Arrest

Outweighs The State’s Interests In Con-

ducting Such Arrests For Fine-Only

Offenses

Every arrest is a serious intrusion on individual liberty,

privacy, and dignity. Incident to any lawful arrest, as de-

scribed above, police may, with no additional showing, con-

duct a full search of the individual being arrested, including

containers on their person, United States v. Robinson, 414

U.S. at 221-22, even for minor offenses and where there is

no evidentiary purpose, Gustafson v. Florida, 414 U.S. 260

(driving without a license), and may search the passenger

compartment, including containers, of an arrestee’s vehicle,

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

An arrestee, like Gail Atwater, may be publicly humili-

ated by being led away by the police, in handcuffs, in front

of neighbors or strangers, and then frightened by being

transported to the station house, where he or she may be

booked and fingerprinted, and then detained without seeing

a magistrate for up to 48 hours, and possibly even longer.

See County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

Petitioner Atwater was held for only one hour; others less

fortunate could be held for a substantially longer period of

time, particularly if they are unable to secure bail or post a

demanded bond.* Like Atwater, an arrestee may also have

dependent children who might be forced to share their par-

ent’s humiliating and traumatic experience, or left without

adequate care.”

* This practice would have severe and potentially unconstitutional

consequences for poor people. See Tate v. Short, 401 U.S. 395 (1971).

* There is little question in this case as to whether probable cause for the

arrest actually existed -- Atwater admitted that she and her children were

not wearing seatbelts, as the officer had personally observed. Permitting

(continued...)

In addition to the serious intrusion on the arrestee’s

liberty and dignity, an arrest can continue to compromise

privacy interests. Even in cases resulting in acquittal or

dismissal, arrest records may be maintained and dissemi-

nated, further damaging the individual’s reputation. See

Paul v. Davis, 424 U.S. 693 (1976); Donald L. Doernberg

& Donald H. Zeigler, "Due Process, Versus Data Proc-

essing: An Analysis of Computerized Criminal History

Information Systems," 55 N.Y.U.L.Rev. 110, 114 (1980).

No legitimate interest of the state or city, on the other

hand, was served by Atwater’s arrest that would not have

been as well served by issuance of a citation. Atwater did

not create or threaten to create a breach of the peace. She

did not refuse to identify herself or attempt to evade Officer

Turek. She did not refuse to fasten her own and her chil-

dren's seat belts when apprehended by Officer Turek; the

officer did not request that she do so because he decided so

precipitously to place her under arrest. The state’s interest

in assuring a defendant's presence for further proceedings

can be satisfied in fine-only cases by issuing a summons for

a code violation." The less serious the offense, the less

likely a defendant is to abscond. See Welsh, 466 U.S. at

759 (White, J., dissenting). In light of Atwater’s unim-

peachable roots in her community and the nature of her of-

fense, it can scarcely be argued that the state had an interest

in preventing her from absconding in order to avoid a $50

* (...continued)

custodial arrest to be authorized for a vast array of minor infractions,

however, would also allow arrests and two-day detentions even in cases

where the existence of probable cause is highly questionable.

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, 266-69 (1989).

fine. There was simply no legitimate need for the arrest.

The fact that this offense was deemed by the state legis-

lature not to warrant any sentence of incarceration is an im-

portant factor affecting the balance of interests and render-

ing the arrest unreasonable. In Welsh v. Wisconsin, 466

U.S. at 750-53, the Court held that the gravity of an offense

is a factor to be weighed in determining whether sufficient

exigent circumstances exist to allow a warrantless arrest in

the home. The fact that Welsh was being arrested for a

nonjailable traffic offense, see id. at 742, was found to out-

weigh the state’s interest in promptly entering his home in

order to preserve evidence of his offense (driving while in-

toxicated). In fact, the Court left open the question of

whether the Fourth Amendment should be interpreted to

pose an absolute ban on warrantless home arrests for certain

minor offenses, id. at 749 n.11, regardless of the existence

of exigent circumstances. Rather than engage in the judicial

evaluation of the severity of offenses that the dissenters in

Welsh found objectionable, id at 756, the Court can accept

the legislature's own ranking of the severity of the offense

and include that assessment in the balance. The state has

defined the level of its own interest through its penalty de-

cision. See pp.27-29, infra.

Respondents cannot argue that the purpose of this arrest

was to attempt to deter Atwater from committing future vio-

lations by punishing her with a taste of custody, because de-

cisions about what is an appropriate punishment must be

made by a representative, politically accountable body. C7.

Harmelin v. Michigan, 501 U.S. 957, 962 (1991)(on legisla-

tive prerogative to decide punishment levels). In this case

the legislature decided not to make any form of incarcera-

tion available as a sanction for seat belt violations, see Tex.

Code §545.413(d), but then nevertheless delegated to its

peace officers the power to single out individuals to be sent

to jail rather than given a summons, id at §§543.001,

543.005. Judge Wiener, dissenting from the en banc deci-

sion below, remarked that Officer Turek had acted as "a

one-person cop cum judge cum jury cum executioner." 195

F.3d at 250. He could aptly have added "cum legislature."

An exigent circumstances exception to the rule that cus-

todial arrest is not generally permitted for fine-only offenses

would be more than sufficient to deal with those cases

where a state does have a legitimate reason to arrest an indi-

vidual for such an offense, perhaps because the individual is

threatening a breach of the peace, or refuses to identify

herself.'' See Thomas R. Folk, "The Case for Constitu-

tional Constraints Upon the Power to Make Full Custody

Arrests," 48 U.Cin.L.Rev. 321 (1979)(arguing that custodial

arrest for minor offenses should be confined to limited situa-

tions like these). What exigent circumstances would justify a

custodial arrest for a fine-only offense is not a question that

arises in this case, however, because there was no claim of

exigency with respect to petitioner Atwater’s arrest and no

basis for any such claim.

D. Common Law Tradition Supports Pro-

hibition Of Custodial Arrest For Fine-

Only Offenses

This Court has often said that the "Fourth Amendment

is to be construed in the light of what was deemed an unrea-

sonable search and seizure when it was adopted, and in a

manner which will conserve public interests as well as the

interests and rights of individual citizens." Carroll v. United

‘' In many cases where an individual's conduct threatens a breach of the

peace or defies an officer's authority, that individual might be subject to

arrest for a separate offense like disorderly conduct, obstruction of jus-

tice, or refusal to identify oneself, depending on the legislature's treat-

ment of those offenses.

States, 267 U.S. 132, 149 (1925). Wyoming v. Houghton,

526 U.S. 295, 299 (1999). This is not a case where logic

must defer to history, see United States v. Watson, 423 U.S.

411, 429 (1976)(Powell, J., concurring), for logic is sup-

ported by history.

At common law, a summons procedure rather than cus-

todial arrest was customarily used for minor offenses not

constituting a breach of the peace. See Julius Goebel, Jr. &

T. Raymond Naughton, LAW ENFORCEMENT IN COLONIAL

New York 417 (1944)(Patterson Smith Reprint Series,

1970); Salken, supra, at 258-59 and authorities cited therein.

Warrantless custodial arrest'? was authorized for "“misde-

meanors" only if they constituted a breach of the peace and

occurred in the officer’s presence. See Stephen, supra, at

193 ("The common law did not authorise the arrest of per-

sons guilty or suspected of misdemeanours, except in cases

of an actual breach of the peace either by an affray or by

violence to an individual"); 1 Joseph Chitty, A PRACTICAL

TREATISE ON THE CRIMINAL LAW 15 (1816)(Garland Pub-

lishing, Inc. 1978)("no person can, in general, be taken into

custody without warrant, for a mere misdemeanour unat-

tended with violence, as perjury or libel"); 4 William Black-

stone, COMMENTARIES *289; Matthew Hale, PLEAS OF THE

CROWN: A METHODICAL SUMMARY 92 (1678)(P. R. Glaze-

brook ed., Professional Books Ltd. 1972)("in case of any

other breach of the peace, the Constable may imprison the

party in the Stocks, in the Goal [sic], or in his House, till he

can bring him before a Justice of the Peace"); Edward C.

'2 This case does not raise the question of whether obtaining an arrest

warrant would permit an officer to conduct a custodial arrest for a fine-

only misdemeanor, or for an offense not constituting a breach of the

peace. The en banc court below, in fact, found that Atwater had proce-

durally defaulted any claim of a right to an arrest warrant. 195 F.3d at

245 n.3.

Fisher, LAWS OF ARREST 125 (1967); Wayne R. LaFave,

ARREST: THE DECISION TO TAKE A SUSPECT INTO CUSTODY

17 (1965); William A. Schroeder, "Warrantless Misde-

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

771, 774-75 (1993). Arrest for minor offenses (those triable

by a magistrate alone and not by a jury) was not sanctioned

for the purpose of apprehending suspects, but rather to

restore the peace. Stephen, supra, at 193. According to

_other sources, so great was the American colonists’

antipathy to unnecessary custodial arrests that even

magistrates were required, in cases involving only such

minor offenses, to proceed by summons rather than by

issuing an arrest warrant. Floyd Feeney, THE POLICE AND

PRETRIAL RELEASE 12 (Lexington 1982); Goebel &

Naughton, supra. As one recent history concluded, the

framers of the Fourth Amendment would have perceived

peace officers as possessing little "significant ex officio

discretionary arrest or search authority." Thomas Y. Davies,

"Recovering the Original Fourth Amendment," 98 Mich.L.

Rev. 547, 640 (1999).

The "misdemeanors" for which common law allowed

custodial arrest were generally serious offenses, including

assaults and other dangerous and disruptive acts, or public

disturbances. See Wilgus, supra, at 572-77 (listing offenses

covered); Davies, supra, at 630 & n.220. As new offenses

were created and the domain of the criminal law expanded,

some statutes eroded the common law and extended the

arrest authority to what Wilgus termed "public torts," 22

Mich.L.Rev. at 576-77, and even to traffic violations like

petitioner's. See Fisher, supra, at 128; Schroeder, supra, at

775; Sam B. Warner, "Uniform Arrest Act," 28 Va.L.Rev.

315, 331-36 (1942). It is these new regulatory and quasi-

civil offenses, mostly unknown to the common law, that are

likely to be punishable only by fine, like petitioner’s

infraction. Use of the arrest power for such offenses, even

if authorized by state legislatures, constitutes a dramatic

expansion of common law arrest authority.’ The framers

of the Fourth Amendment, offended by undue grants of

discretion to search and arrest for common law offenses, did

not have occasion to consider whether they would have been

equally offended by random or politically motivated arrests

for a wide variety of trivial matters, because such arrests

were not within their experience. It seems likely that they

would have found such practices as least as objectionable.

A number of contemporary statutes share at least some

of the approach of the common law, seeking to limit custo-

dial arrest for nonfelonies to instances where there is an

actual need to arrest. Some states have explicitly codified

the common law requirement that warrantless arrests may

only be conducted for misdemeanors occurring in the pres-

ence of the officer if they are breaches of the peace."

Many other states retain the common law rule permitting

warrantless arrests for misdemeanors only if they are com-

mitted within the arresting officer's presence, without ex-

plicitly mentioning the common law’s bieach of the peace

'> See Francis H. Bohlen, “Arrest With and Without a Warrant,” 75 U.

Pa.L.Rev. 485, 491 (1927)(finding “appalling” the notion that the

traditional common law power to arrest for breaches of the peace might

be expanded to municipal ordinance violations).

'* See Miss. Code Ann. §99-3-7(1) (1999); W. Va. Code §62-10-6

(2000)equivalent limitation on constables, not sheriffs). Some statutes

limit the right to arrest to “public offenses" committed within the offi-

cer’s presence, see Ala. Code §15-10-3(a)(1) (1999)("public offense” or

"breach of the peace"); Ark. Code Ann. §16-81-106(b)(2) (Michie

1999); Cal. Penal Code §836(a)(1) (West 2000); Idaho Code §19-603(1)

(1999); lowa Code Ann. §804.7(1) (West 1999); Minn. Stat. Ann.

§629.34(1)(ch1) (West 1999); Nev. Rev. Stat. Ann. §171.124(1)(a)

(Michie 1999); N.D. Cent. Code §29-06-15(1)(a) (1999), Okla. Stat.

Ann. tit. 22, §196(1) (West. 1999); S.D. Codified Laws §23A-3-2(1)

(Michie 2000); Tenn. Code Ann. §40-7-103(a)(1) (1999)("public of-

fense" or “breach of the peace”); Utah Code Ain. §77-7-2(1) (1999).

requirement, but incorporate some of the spirit of that limi-

tation by allowing arrest for misdemeanors committed out-

side an officer's presence only for designated offenses,

usually more serious misdemeanors entailing violence or a

threat of violence.'’ See LaFave, SEARCH & SEIZURE,

supra, §5.1(b) at 13-14.

Beyond breach of the peace and presence requirements,

some state statutes prescribe generalized criteria to guide

officers in determining whether an immediate arrest is nec-

' See Alaska Stat. §12.25.030(b)((2)(A) (Michie 1999): Del. Code Ann.

tit. 11, §§1904(a)(4)-(6) (1999); Fla. Stat. Ann. §§901.15(6)-(9) (West

1999); Ga. Code Ann. §17-4-20(a) (1999); Ind. Code Ann. §§35-33-1-

1(aX(3), (5) (Michie 2000); Kan. Stat. Ann. §22-2401(cM2\C) (West

1999), Ky. Rev. Stat. Ann. §431.005(1)(e),. (2)(a) (Michie 1998); Me.

Rev. Stat. Ann. tit. 17-A, §15(1)(A) (West 1999): Mass. Ann. Laws ch.

276, §28 (West 1999); Mich. Comp. Laws Ann. §764.15(1)(m) (West

2000); Neb. Rev. Stat. §29-404.02(3) (1999); N.H. Rev. Stat. Ann.

§$594.10(1)(b) (1999); N.M. Stat. Ann. §31-1-7(A) (Michie 2000); N.Y.

Crim. Proc. Law §140.10(1)(b) (McKinney 2000) (misdemeanors, not

offenses); N.C. Gen. Stat. §15A-401(b)(2)(d) (2000); Ohio Rev. Code

Ann. §2935.03(B\(1) (Anderson 2000); Or. Rev. Stat. §133.310(6)(a)

(1999), Tex. Crim. P. Code. Ann. §§14.01(a)-(b), 14.03(2)-(4) (West

1998), Vt. R. Crim. P. 3(a)(2(C) (2000); Va. Code Ann. §19.2-81(7)

(Michie 2000); Wash. Rev. Code Ann. §10.31.100(1)-(2) (West. 1999),

or for dangerous traffic violations, like driving while intoxicated or

reckless driving, see Mich. Comp. Laws Ann. §764.15(1)(h)-(i) (West

2000), N.J. Stat. Ann. §39:5-25 (West 2000); N.D. Cent. Code §29-06-

IS(1f) (1999); Or. Rev. Stat. §133.310(1)(d)-(g) (1999); Wash. Rev.

Code Ann. §10.31.100(3)-(4) (West 1999).

When the issue, as in many of these state statutory schemes, is

whether or not to require an arrest warrant before a custodial arrest. the

presence requirement provides a fair measure of alternative protection to

the breach of the peace requirement. When the question, as in this case,

however, is not just whether an arrest warrant is necessary, but whether

an arrest is, on balance, reasonable in the enforcement of petty regula-

tory offenses unknown to the common law, the presence requirement by

itself is inadequate to protect against overuse of the arrest power.

——— _— — <a

essary, thus addressing the problem of undue delegation of

discretion. Swh statutes may require a reasonable belief

that the suspect (1) will not be apprehended unless immedi-

ately arrested, (2) may cause personal injury or property

damage, (3) will destroy evidence, or (4) will persist in re-

fusing to identify himself or herself and therefore cannot be

issued a summons.'® While these statutes do impose some

control on police discretion to arrest, they nevertheless

vastly expand the authority conferred by common law, be-

cause the "offenses" or "misdemeanors" now included cover

a kaleidoscopic array of new quasi-civil matters.'’

§22-2401(c2A)-(C) (West 1999), Me. Rev. Stat. Ann. tit. 17-A

§15(1)(ay(S)-(8) (West 1999), Mont. Code Ann. §46-6-311(1) (1999);

Neb. Rev. Stat. §29-404.02(2) (1999); N.H. Rev. Stat. Ann.

§594.10(1)(c) (1999); N.C. Gen. Stat. §1SA-401(b)(2)(b) (2000); R.1.

Gen. Laws §12-7-3 (1999); Utah Code Ann §77-7-2(3) (1999); Vt. R.

Crim. P. 3(a)(3)-(4) (2000); Wyo. Stat. Ann. §7-2-102(b)(iii) (Michie

2000); see ALI Model Code of Pre-Arraignment Procedures §120.1

(1975). Some statutes require both particularly dangerous offenses and

risk of flight, injury, etc., see D.C. Code Ann. §23-581(a(1(C), (2)

(1996); Md. Code Ann. art. 27 §594B(e), (f) (1996).

'’ This Court has held in cases concerning inventory searches of im-

pounded automobiles that the Fourth Amendment’s concern about undue

delegation of discretion may be satisfied by requiring the states to pro-

vide criteria for the police to follow in deciding whether to conduct such

searches. See Florida v. Wells, 495 U.S. 1 (1990); Colorado v. Bertine,

479 U.S. 367, 375 (1987); South Dakota v. Opperman, 428 U.S. 364,

369, 372, 379 (1976). A similar rule concerning the power of custodial

arrest, requiring the states to create their own criteria or guidelines for

arresting officers, would partially address the problem of arbitrary and

discriminatory law enforcement. Such a rule would not be adequate,

however, to prevent state statutes from authorizing arrests that are not,

on balance, reasonable. The courts must decide what exigencies will

permit appropriate exceptions to the rule disfavoring arrests for fine-only

offenses. Legislatures, having shown themselves willing to authorize

discretionary arrests for minor matters, might well posit that exigent cir-

(continued...)

At least eight states’ statutory schemes appear to have

addressed this problem head-on, categorically prohibiting

custodial arrests for fine-only offenses.'* The legislatures

of about half the states, unlike Texas, du not authorize cus-

todial arrest for a fine-only seat belt offense.'®

” (..comtinued)

cumstances exist any time arrest would further the purpose of the statute

or ordinance in question, see Diaz v. City of Fitchburg, 176 F.3d 560,

563 (Ist Cir. 1999). Such circular reasoning would evade the question

of whether an arrest performed solely in order to further the purposes of

an ordinance prohibiting obstruction of a passageway, jaywalking, or

littering is reasonable.

'* See Alaska Stat. §§12.25.030(1), 11.81.900(b)(9), (b)(58) (Michie

1999): Del. Code Ann. tit. 11, §§1904(a), 233(c), 4207 (1999); Ky. Rev.

Stat. Ann. §§431.005(d), 431.060(2)-(3) (Michie 1998); Me. Rev. Stat.

Ann. tit. 17-A, §15(1)(B) (West 1999), & Me. Rev. Stat. Ann. tit. 17-A,

§4-B(3) (West 1999); Or. Rev. Stat. §§133.310(1)(b), (d), 161.515(1),

161.545 (1999); Pa. R. Crim. P. 101(2)(a), (c) (West 1999), 18 Pa.

Cons. Stat. Ann. §106(b)(8) (West 1999); R.I. Gen. Laws §§12-7-3, 11-

1-2 (1999). S.D. Codified Laws §§23A-3-2(1), 22-6-7 (Michie 2000).

In many states, it is impossible to determine from published state stat-

utes whether custodial arrest is permitted for fine-only offenses.

See Alaska Stat. §§12.25.030(a)(1), 11.81.900(b)(9), 28.05.095,

28.05.99 (1999): Del. Code Ann. tit. 11, §1904(a)(1), 233(c) (1999),

Del. Code Ann. tit. 21, §4802(g)(1) (1999); Fla. Stat. Ann. §§901.15(1),

775.08(2)-(3), 316.614(5), (8), 318.13(3), 318.14(1) (West 1999): see

also Thomas v. Florida, 614 So.2d at 471; Ga. Code Ann. §§17-4-20(a),

40-8-76.1(b), (e)(1) (1999); 725 Ill. Comp. Stat. Ann. 5/107-2, 625 Ill.

Comp. Stat. Ann, 5/12-603(d), 725 Ill. Comp. Stat. Ann. 5/102-15 (West

2000); Ind. Code Ann. §§35-33-1-1(a)(4), 33-1-12-1, 9-19-10-2 (West

2000); Ky Rev. Stat. Ann. §§431.005(1)(d), 431.060(3), 189.125(6)

(Michie 1998); La. Code Crim. Proc. Ann. art. 213 (1), art. 933(1), (4)

(West 1999), La. Rev. Stat. Ann. §14.2(6), 14.7, 32:295.1(A)(1) (West

1999), Me. Rev. Stat. Ann. tit. 17-A, §15(1)(A)(2), §4-B(1)-(3) (West

1999), Me. Rev. Stat. Ann. tit. 29-A §2081 (3-A), (D), §101(85) (West

1999); Md. Ann. Code art. 27, §594B(a) (1999), Md. Code Ann.,

Transp. §§22-412.3(b), 27-101(a)(2), 27-106(b) (1999); Mass. Gen.

(continued...)

The legislative attempts to circumscribe the arrest power

with respect to minor offenses, although not consistently as

'® (continued)

Laws Ann. ch. 276, §28, Mass. Gen. Laws Ann. ch. 90, §13A (West

1999); Mich. Comp. Laws Ann. §§764.15(1)(a), 257.710e(3), (7),

257.6a, 257.907(2) (West 1999); Mont. Code Ann. §§46-6-311(1), 46-1-

202(14), 45-2-101(48), 61-13-103(1), 61-13-104(1) (1999); Neb. Rev.

Stat. Ann. §29-404.02(2) (1999), Neb. Rev. Stat. Ann. §60-6,270(1)

(1999), Neb. Rev. Stat. §60-60,272 (1999); N.C. Gen. Stat. §§15A-

401(b)(1)-(2)(b), 20-135.2A(e), 14-3.1(a) (2000); Or. Rev. Stat.

§§133.310(1)(a)-(d), 161.515, 161.545, 811.210(1)(a), (2b), (3) (1999),

Pa. R. Crim. P. 101(2)(a), 18 Pa. Stat. Ann. §106(b)(1)-(9) (a

misdemeanor must carry the possibility of a minimum term of

imprisonment to constitute arrestable offense), 75 Pa. Stat. Ann.

§§4581(2), (3)(b) (2000); R.I. Gen. Laws §§12-7-3, 1 1-1-2, 31-22-22(g),

(j) (1999); S.C. Code Ann. §§56-5-6520, 56-5-6540 (Law. Co-Op.

1999\("no custodial arrest for a violation of [the seat belt laws] may be

made"); S.D. Codified Laws §§23A-3-2(1), 32-38-1, 32-38-5 (Michie

2000); Tenn. Code Ann. §55-9-603 (1999)("a law enforcement officer

observing a violation [of the seat belt laws] shall issue a citation to the

violator, but shall not arrest or take into custody any person solely for a

violation of [the seat belt laws]"); Utah Code Ann. §§77-7-2(1), 76-1-

601(6), 41-6-182(2), 41-6-185(1) (1999); Va. Code Ann. §§19.2-81(7),

46.2-1094(A), (G), 46.2-113, 18.2-8 (Michie 2000); Wash. Rev. Code

Ann. §§10.21.100, 9A.04.040(1), 46.61.688(3), (5), 46.63.110(1) (1999).

According to one source, although seat belts were required in 49 states,

36 states prohibited their officers from stopping drivers for a seat belt

violation, allowing enforcement of seat belt laws only if motorists were

stopped on suspicion of some more serious offense. See Timothy

O'Neill, No Stops for Seat Belts, Chi. Trib., Mar. 28, 1999, at 20.

While a number of states do seem to permit custodial arrests for a

violation of a fine-only seat belt law, it is difficult to provide an exact

count, as the statutes of other states (Hawaii, Nevada, New York, North

Dakota and Vermont) are unclear. Texas is unusually explicit in pro-

viding officers with blanket authority to arrest an individual for any

traffic infraction in its code. See Tex. Transp. Code Ann. §543.001

(West 1999)("any peace officer may arrest without warrant a person

found committing a violation of this subtitle [Rules of the Road").

vigilant as the common law, bolster the conclusion that it is

not reasonable within the meaning of the Fourth Amend-

ment for a state to give vast and unchecked power to the

police to arrest for minor regulatory offenses. However, the

more permissive statutes, like those in Texas, which radical-

ly expand common law authority, demonstrate that the

courts cannot optimistically defer to all legislative judgments

about when arrest is reasonable.

Requiring the police, in the absence of exigent circum-

stances, to issue citations for minor, regulatory offenses

rather than allowing them the power to arrest and search

every traffic offender, jaywalker, or litterer, would obviate

unreasonable arrests and would prevent widespread and in-

evitable problems of arbitrary and discriminatory enforce-

ment from developing. Wayne R. LaFave, "*Case-by-Case

Adjudication’ Versus ‘Standardized Procedures’: The Rob-

inson Dilemma," 1974 Sup.Ct.Rev. 127, 158, 162 (the most

straightforward and most efficient control "in an area with a

high potential for abuse" is to limit the circumstances under

which an arrest is permissible).

E. Prohibiting Arrest For Fine-Only Of-

fenses Is Consistent With General Prin-

ciples Of Constitutional Interpretation

The courts could satisfy their responsibility to ensure

that there are meaningful limits on police discretion to arrest

by simply ruling that custodial arrest for minor offenses is

allowed whenever the individual arrest is reasonable in light

of all the facts -- a case-by-case approach that would weigh

the nature of the intrusion (including such facts as how

many hours the suspect was actually held, whether hand-

cuffs or shackles were used, whether the suspect was given

food, etc.), against the state’s interests, including an

evaluation of the seriousness of the offense. Atwater’s ar-

rest, as described above, would have to be deemed unrea-

sonable under such an approach. On the other hand, ruling

that it is generally unreasonable to arrest for a fine-only

offense would provide a clear and consistent rule, would al-

low the courts to avoid the unnecessary burden of evaluating

each misdemeanor arrest individually (unless there were a

claim of actual exigency), and would honor the state’s own

assessment of the severity of the offense.

A state’s decision about how an offense is to be pun-

ished is the "best indication of the state’s interest in precipi-

tating an arrest, and is one that can be easily identified.”

Welsh v. Wisconsin, 466 U.S. at 754. See generally LaFave,

"Case-by-Case Adjudication," supra. Using the legislature's

own decision about the range of permissible punishment as

the basis for circumscribing the arrest power respects the

legislature’s authority in an appropriate manner. In inter-

preting other provisions of the Bill of Rights, the Court has

declined to create its own taxonomy of the seriousness of

offenses, relying instead on legislative decisions that an of-

fense should be punished only by a fine as dispositive of

whether certain constitutional protections attach during the

prosecution of that offense. The Court has held, for exam-

ple, that an individual has a right to counsel under the Sixth

and Fourteenth Amendments only in connection with of-

fenses that subject that individual to incarceration, see

Argersinger v. Hamlin, 407 U.S. 25; Scott v. Illinois, 440

U.S. 367 (1979). The individual does not gain a right to

counsel even if subjected to enormous fines, or other serious

consequences not involving incarceration. See Argersinger,

407 U.S. at 44 (Powell, J., concurring). Similarly, the right

to a jury trial under the Sixth and Fourteenth Amendments

is contingent on the legislature's determination of the level

of punishment appropriate upon conviction of an offense,

Baldwin v. New York, 399 U.S. 66 (defendant has the right

to a trial by jury if the offense to be tried is punishable by

at least six months incarceration), not on what offenses the

courts consider to be "serious," and not on whether the legis-

lature describes its offenses as "felonies" or "misdemeanors."

The Court adopted this approach recognizing that it

would be difficult to predicate the existence of constitutional

rights on whether particular offenses are labeled as "felo-

nies" or "misdemeanors," because definitions of these terms

vary greatly among the states. Welsh v. Wisconsin, 466

U.S. at 761 (White, J., dissenting). Likewise, what is a

"misdemeanor" in one state is a "petty offense" or "viola-

tion" in another. What is a "crime" in one state is a civil

matter in others.”” In the context of evaluating the reason-

ableness of arrests, as elsewhere, it would not be feasible to

adopt a constitutional rule based on legislative labeling of

the category, status, or nature of an offense. The level of

punishment attached to an offense is the only consistent,

easily ascertained indicator of the weight of the state’s

interest.

The fine-only distinction also serves the important func-

tion of preventing unauthorized and disproportionate punish-

ment for an offense. Once a legislature has decided not to

allow any possibility of incarceration upon conviction of an

offense, it should be impermissible for an individual who is

only suspected of committing that offense to be locked up,

even for 48 hours or less, at least in the absence of truly

exigent circumstances. As Judge Easterbrook has remarked,

"[m]ost reports of misdemeanors will not produce a sentence

of custody . . . so a custodial arrest becomes a substantial

part of the punishment." Gramenos v. Jewel Companies,

Inc., 797 F.2d 432, 441 (7th Cir. 1986). See Malcolm M.

*® This Court has previously held in several contexts that a state legisla-

ture’s own description of its statutes as being "criminal" or "civil" is not

dispositive, see Austin v. United States, 509 U.S. 602 (1993); Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963), so attempting to define arrest

authority on the basis of whether a state denominates an offense as

"criminal" would also be unavailing.

Feeley, THE Process Is THE PUNISHMENT 46-47 (1979).

Decisions about the appropriate punishments for offenses

must be made by legislators who, unlike individual police

officers, are politically accountable.

Respecting legislative judgments about the seriousness

of an offense does not, of course, entitle the states to evade

the Fourth Amendment requirement of reasonableness by the

simple expedient of amending every ordinance in their

arsenal to include a possibility of jail time, no matter how

theoretical. If legislatures authorize incarceration and there-

fore arrest for truly trivial matiers, the Court might then

have to consider whether to interpret the Fourth Amendment

as also incorporating the common law rule that arrests for

minor offenses are impermissible in the absence of a breach

of the peace, see pp.19-20, supra, or some other constraint

on police discretion. While legislatures’ evaluations of their

own goals in criminal law enforcement are properly con-

sulted in locating the baseline for what is reasonable, the

Fourth Amendment, like its counterparts in the Bill of

Rights, must sometimes be countermajoritarian.

CONCLUSION

For the reasons stated above, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Susan N. Herman

(Counsel of Record)

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

William C. Harrell

ACLU of Texas

P.O. Box 3629

Austin, Texas 78764

(512) 441-0077

Joseph P. Berra

Mexican Legal Defense and

Educational Fund

140 East Houston Street, Suite 300

San Antonio, Texas 78205

(210) 224-5476

Dated: September 11, 2000

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.