# Amicus Curiae Brief — Atwater v. Lago Vista > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0356%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 532 U.S. 318 ## Text 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) ............... ) iV 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 Vv 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 ................ 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 vi 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 iX 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 Xl 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 XV 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...) to 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 4 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- 5 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- 6 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 (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). 10 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 1] . 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 12 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). 13 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. 14 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...) 15 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. © See ALI Model Code of Pre-Arraignment Procedures §120.2 (1975); 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). 16 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, 17 543.005. 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. 18 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. 19 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 20 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). 21 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. 22 ——— _— —