Amicus Curiae Brief — Atwater v. Lago Vista

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NOV 1 2000

Supreme Court of the United States

Let. owes ee at ee ee tw mee

GAIL ATWATER, et al.,

Petitioners,

CITY OF LAGO VISTA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS, NATIONAL

ASSOCIATION OF COUNTIES, NATIONAL

CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, COUNCIL OF STATE

GOVERNMENTS, AND INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION

AS AMICI CURTAE SUPPORTING RESPONDENTS

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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QUESTION PRESENTED

Whether the Fourth Amendment prohibits war-

rantless arrests for “fine only” traffic offenses

committed in the arresting officer’s presence.

(i)

THE FOURTH AMENDMENT DOES NOT

PROHIBIT WARRANTLESS ARRESTS FOR

“FINE ONLY” TRAFFIC OFFENSES COM-

MITTED IN THE ARRESTING OFFICER’S

A. Probable Cause Is The Constitution’s Measure

Of The Permissibility Of An Arrest And The

Commission Of An Offense In The Arresting

Officer’s Presence Is The Strongest Possible

Case OF ProBeble Causes ....cc.cccccsscsscscccsscseccseceseeees

B. A Holding That The Fourth Amendment

Prohibits Warrantless Arrests For “Fine Only”

Traffic Offenses Is Unnecessary And Would

Intolerably Handicap Legitimate Law Enforce-

(iii)

TABLE OF AUTHORITIES

Cases Page

Beck v. Ohio, 379 U.S. 89 (1964) ......ccccccceeeeeeneees 14

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

ee 3

Bridgestone/Firestone, Inc., v. Glyn-Jones, 878

BW AG BSS CHE. CGE rccesccsessscsscsascssccsssscsssessse 3

Brinegar v. United States, 338 U.S. 160 (1949).... 13, 14

Carroll v. United States, 267 U.S. 154 (1925)....... 25

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 13

County of Riverside v. McLaughlin, 500 U.S. 44

(| 7

Delaware v. Prouse, 440 U.S. 648 (1979)..........0+ 2-3,4

Gerstein v. Pugh, 420 U.S. 103 (1975)........cc00e00es passim

Gustafson v. Florida, 414 U.S. 260 (1973)............ 18

Illinois v. Lafayette, 462 U.S. 640 (1983)............. 22

Kodani v. Snyder, 89 Cal. Rptr. 2d 362 (Cal.

ee 19

Long v. Ansell, 293 U.S. 76 (1934)........ccccceceseeees 13

Mayer v. City of Chicago, 404 U.S. 189 (1971)... 16

New York v. Belton, 453 U.S. 454 (1981)......8, 11, 16, 22

New York v. Class, 475 U.S. 106 (1986) ............... 2

Palmer v. State, 1994 Tex. App. LEXIS 2605

oe OY en 3,19

Payton v. New York, 445 U.S. 573 (1980)............. 13

Ricci v. Arlington Heights, 523 U.S. 613 (1998)... l

Richards v. State, 743 S.W.2d 747 (Tex. Ct. App.

1987), pet. ref d, 757 S.W.2d 723 (Tex. Crim.

Rag, CGD qcesssesssessssssemsnmnenesnsssrrencemnememennesnns 4,5

Simon v. Sargent, 346 F.Supp. 277 (D. Mass.

1972), aff d, 409 U.S. 1020 (1972)........ccccceeeees 5

Spence v. State, 1996 Tex. App. LEXIS 3810

CHR. CR, Ag, FOGG D cccsssssssccssecsepecsssssssecssesssssceee 3,19

State v. Cook, 530 N.W.2d 728 (Iowa 1995).......... 19

State v. Hartog, 440 N.W.2d 852 (lowa), cert.

denied, 493 U.S. 1005 (1989) ...............cccceeeeeeees 2,4

TABLE OF AUTHORITIES—Continued

Page

State v. Kohrig, 498 N.E.2d 1158 (Ill. 1986),

app. dismissed, 479 U.S. 1073 (1987) ............++ 4-5,5

State v. Swain, 374 §.E.2d 173 (N.C. Ct. App.

SED cssseressarssesasnssnssmsensmnmnensemmnasmmmnunsetatecseats 5

State v. West, 20 S.W.3d 867 (Tex. Ct. App.

GET ccessessnsencsncosccsnsasenneeasesnapemenenmnmmmsinenenees 2, 4, 5, 19

Steagald v. United States, 451 U.S. 204 (1981).... 13

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) .... 20

Tate v. Short, 401 U.S. 395 (1971) .......cccccccceeseeeees 16

United States v. Sharpe, 470 U.S. 675 (1985) ....... 22

United States v. Watson, 423 U.S. 411 (1976)....... 13

Welsh v. Wisconsin, 466 U.S. 740 (1984).............. 16, 25

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

Statutes

Cal. Penal Code § 853.6(i).............sssccccssssesseeeees 10, 18, 21

Cal. Penal Code § 853.6(1)(1) ............ccccccssessseseeees 18

Cal. Penal Code § 853.G(i)(2) .......ccccccccccccccccccccccees 18

Cal. Penal Code § 853.6(i)(5S) ...........ccccccecsssseeeseeees 1, 18

Cal. Penal Code § 853.6(1)(7) ..........ccccseeeeeees 1, 10, 18, 19

Cal. Penal Code § 853.6(1)(8) ............ccccccccseeeeeeeeees 18

ee 19

S.C. Code Ann. § 56-5-6520...............ccccccsssssssseeees 20

S.C. Code Ann. § 56-5-6540............ccccccsssesecsseeeeees 20

Tenn. Code Amn. § $5-9-G03 ........ccccccccccssccccccccceees 20

Tex. Transp. Code Ann. § 543.001 ..............ccccceeee 3

Tex. Transp. Code Ann. § 543.004 .0000........cceceeee 3,12

Tex. Transp. Code Ann. § 545.412(a) .............00000 3,5

Tex. Transp. Code Ann. § 545.413(a) .............000+ 3

Tex. Transp. Code Ann. § 545.413(b) ..............0.++ 3,5

Other Authorities

American Bar Association, Standards for

Criminal Justice (2d ed. 1980).........c..cceccceeeeeee 19, 23

TABLE OF AUTHORITIES—Continued

Page

American Law Institute, Model Code of Pre-

Arraignment Procedure (1975)...........++++: 22, 22-23, 23

Raymond E. Clift, A Guide to Modern Police

Pe GO Cree ccccsneinnnentcnenneicmnnttiainien 7-8

Handgun Control, Inc., “Texas Firearm Laws,”

http://www.handguncontrol.org/stateleg/state

Nelson B. Lasson, The History and Development

of the Fourth Amendment to the United States

CI Ge Pentetsscrentneiinnnnn 12

Wayne R. LaFave, ‘Case-by-Case Adjudication’

Versus ‘Standardized Procedures’: The Rob-

inson Dilemma, 1974 Sup. Ct. Rev. 127............ 16, 22

National Conference of Commissioners on

Uniform State Laws, Uniform Rules of

Criminal Procedure (197A4)......ccccccccseecceceseeeeeees 23

National District Attorneys Association, National

Prosecution Standards (\st ed. 1977)............00. 23

National District Attorneys Association, National

Prosecution Standards (2d ed. 1991)............. 23, 23-24

Jonathan Ringel, Police Power, Business Cases

Top Docket, Legal Times, Sept. 25, 2000, at

Safety of Child Passengers in Motor Vehicles:

Hearing Before the Subcomm. On the Con-

sumer of the Senate Comm. on Commerce,

Science, and Transportation, 10\st Cong., 2d

Es Gee nennnsssasansssssensesemnenentaennmeepmneatees 5, 5-6, 17

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include

state, county, and municipal governments and

officials throughout the United States.! Amici have a

compelling interest in the legal issue presented in

this case: whether the Constitution prohibits police

officers from making warrantless arrests for “fine

only” traffic offenses committed in the presence of the

arresting officer. Amici filed a brief on a similar

issue when it was presented in Ricci v. Arlington

Heights, 523 U.S. 613 (1998) (dismissing cert. as

improvidently granted).

There are many recurring situations in which state

and local government law enforcement officers must

have the authority to make warrantless arrests for

traffic offenses committed in their presence, even

if the penalty for the offense is a fine rather

than imprisonment. See, eg., Cal. Penal Code

§§ 853.6(i5), (7) (warrantless arrests authorized

when, inter alia, driver fails to provide satisfactory

identification or “(t]here [is] a reasonable likelihood

that the offense or offenses would continue or

resume, or that the safety of persons or property

would be imminently endangered by release of the

person arrested”). Such arrest authority is essential

1 The parties have consented to the filing of this brief amicus

curiae. A blanket consent to the filing of amicus briefs in

support of either party has been filed with the Clerk of the

Court by counsel for petitioners and counsel for respondents.

Pursuant to Rule 37.6, amici state that no counsel for a party

has authored this brief in whole or in part, and that no person

or entity, other than amici or their members, has made a

monetary contribution to the preparation or submission of this

brief.

if the law is to be enforced and the public safety

protected.

Numerous States, including Texas, regard their

mandatory seat belt laws as essential exercises of the

police power that are designed to protect the safety

not only of the driver and any passengers (including

young children), but also other innocent motorists

and pedestrians. See, e.g., State v. West, 20 S.W.3d

867, 872 (Tex. Ct. App. 2000) (the “Texas seat belt

law serves the public safety and welfare by

enhancing a driver’s ability to maintain control of his

vehicle, and by reducing injuries not only to himself,

but also to others”) (citation omitted); State v. Hartog,

440 N.W.2d 852, 857 (lowa 1989) (“an unrestrained

front seat passenger can interfere with the ability of

a driver to respond to a collision”), cert. denied, 493

U.S. 1005 (1989); id. at 858 (the seat belt law also

“promotes the public interest [by] reducing the public

costs associated with serious injuries and deaths

caused by automobile accidents”). Adoption by this

Court of the varied constitutional proposals urged by

petitioners and their amici—which are unworkable

as well as_ inconsistent—“would constitute an

intolerable burden for legitimate law enforcement.”

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

Because of the importance of the question

presented to the protection of the public safety and

health on the nation’s highways and roads, amici

submit this brief to assist the Court in the resolution

of this case.

STATEMENT OF THE CASE

1. This Court has long recognized the States’

“‘vital interest’ in highway safety and the various

programs that contribute to that interest.” New York

v. Class, 475 U.S. 106, 112 (1986) (quoting Delaware

v. Prouse, 440 U.S. 648, 658 (1979)). “The state

legislatures plainly have great leeway in providing

safety regulations for all vehicles—interstate as well

as local.” Bibb v. Navajo Freight Lines, Inc., 359

U.S. 520, 530 (1959). |

It is a misdemeanor under Texas law for a driver to

fail to wear a seat belt while operating a motor

vehicle. Tex. Transp. Code Ann. § 545.413(a). See

Bridgestone/Firestone, Inc., v. Glyn-Jones, 878

S.W.2d 132, 134 (Tex. 1994) (seat belt statute “was

enacted to mandate the use of seat belts and to

provide a criminal penalty for the failure to wear a

seat belt”). There are separate criminal offenses for

permitting children under the age of fifteen to ride in

the front seat of a motor vehicle without a seat belt.

Tex. Transp. Code Ann. §§ 545.412(a); 545.413(b).

Under Texas law, a police officer “may arrest without

warrant a person found committing” any of these

traffic offenses in the officer’s presence. Id.

§ 543.001. See, e.g., Spence v. State, 1996 Tex. App.

LEXIS 3810, at *11 (Tex. Ct. App. 1996); Palmer v.

State, 1994 Tex. App. LEXIS 2605, at *3 (Tex. Ct.

App. 1994).?

2 Under Texas law, not every traffic offense committed in the

presence of an officer subjects the offender to the possibility of a

warrantless arrest; citations are mandatory for certain

legislatively-specified traffic offenses, including speeding. See

Tex. Transp. Code § 543.004.

Petitioners’ concern that Texas police who enforce traffic laws

“have the unfettered discretion to arrest anyone for even the

slightest criminal infraction,” Pet. Br. 33, and petitioners’ ref-

erence to “the literally millions of traffic stops that occur every

year,” id. at 45, obviously overlook this fundamental state law

limitation on the arrest authority of police officers in Texas.

State seat belt laws are classic exercises of the

police power. Texas law is unequivocal that the

purpose of its seat belt laws is to serve the public

safety and health, not merely “to protect an

individual from his own conduct.” State v. West, 20

S.W.3d at 872. The “Texas seat belt law serves the

public safety and welfare by enhancing a driver’s

ability to maintain control of his vehicle, and by

reducing injuries not only to himself, but also to

others.” Id. (citing Richards v. State, 743 S.W.2d 747,

749 (Tex. Ct. App. 1987), pet. refd, 757 S.W.2d 723

(Texas Crim. App. 1988)). In addition to protecting

the public’s safety, the law also “directly affects the

state’s economic welfare.” Richards, 743 S.W.2d at

749. Cf. Prouse, 440 U.S. at 658 (1979) (“we are

aware of the danger to life and property posed by

vehicular traffic and of the difficulties that even a

cautious and an experienced driver may encounter”)

(footnote omitted). These cases and those from other

States cited in footnote 3 below flatly refute

petitioners’ contention that “[sleat belt laws .. . are

readily distinguishable from most laws that further

highway safety” because “they are ‘designed to pro-

tect a specific individual from his own conduct, con-

duct which poses no threat to the public at large.’”

Pet. Br. 30 (quoting opinion of court of appeals panel,

Pet. App. 37a).8

3 See also State v. Hartog, 440 N.W.2d at 857 (“seat belie use

enhances a driver’s ability to maintain control of the car and

avoid injuries not only to the driver but to others. .. an

unrestrained front seat passenger can interfere with the ability

of a driver to respond to a collision”); id. at 858 (the seat belt

law also “promotes the public interest [by] reducing the public

costs associated with serious injuries and deaths caused by

automobile accidents”); State v. Kohrig, 498 N.E.2d 1158, 1165

(Ill. 1986) (“children and other occupants who are wearing

The vital public purposes served by mandatory seat

belt laws are fully operative when an unbelted driver

is driving alone. See West, 20 S.W.2d at 872;

Richards, 743 S.W.2d at 749. They are of even

greater public importance when young children are

standing in the front seat of the vehicle without seat

belts in violation of Tex. Transp. Code Ann. §§

545.412(a); 545.413(b). This is both because of the

risk to the children themselves, and the potential of

the children to distract the driver, thereby

endangering others. See Kohrig, 498 N.E.2d at 1165;

Safety of Child Passengers in Motor Vehicles:

Hearing Before the Subcomm. on the Consumer of the

Senate Comm. on Commerce, Science, and Trans-

portation, 10ist Cong., 2d Sess. 9 (1990) (statement

of Jerry Ralph Curry, Administrator, NHTSA) (“For

1988, . . . we estimate that the lives of about 250

children under the age of 5 were saved by child safety

seats or safety belts. If all such children were

properly restrained by seats or belts, . . . another 200

to 300 could be saved each year.”); id. at 81

(statement of Frederick Locker, Juvenile Products

Mfgs. Assn.) (“When you get in that car with your

child it should be second nature to you to buckle your

child up and then to buckle yourself up and make a

point of telling the child that it is important... .

safety belts are less likely to distract the driver”), app.

dismissed, 479 U.S. 1073 (1987); State v. Swain, 374 S.E.2d

173, 174 (N.C. Ct. App. 1988). Cf Simon v. Sargent, 346

F Supp. 277, 279 (D. Mass. 1972) (three-judge panel) (upholding

State’s motorcycle helmet law and reasoning that “the

consequences of . . . injuries are [not] limited to the individual

whe sustains the injury” but extend to family and community;

“[wje do not understand a state of mind that permits plaintiff to

—_ that only he himself is concerned”), affd, 409 U.S. 1020

(1972).

[D]on’t cave in to the crying and wiggling of a child

who wants to get out of their seat.”).

2. On March 26, 1997, Lago Vista Police Officer

Bart Turek stopped Gail Atwater because she was

driving while her two children, Mac, three years old

at the time, and Anya, aged five, were standing on

the front seat of her Dodge Ram Pickup truck. Pet.

Br. 2; Jonathan Ringel, Police Power, Business Cases

Top the Docket, Legal Times, Sept. 25, 2000, at 12

(Atwater reported as having said that she had

“agreed to let her kids stand on the seat to look out

the window” for a toy that had fallen from the truck).

“[A] few weeks before,” Pet. Br. 35 n.17, Officer Turek

had stopped Ms. Atwater “for allowing her son to ride

on the front seat arm rest,” Pet. App. 30a, although

he did not issue a citation at that time because Mac’s

seat belt was fastened. Id.

On this second occasion, Officer Turek began by

reminding Ms. Atwater of the earlier incident. He

then placed her under arrest for violating Texas’ laws

that require both adults and children riding in the

front seat to have their seat belts fastened. Pet. App.

52a-54a (opinion of district court).4 Officer Turek

4 Amici respectfully submit that the prior incident only a few

weeks before is a critical fact in the context of the arrest.

Officer Turek had, after all, very recently stopped Ms. Atwater

on suspicion that her three-year old son was riding unbelted on

top of the truck’s front-seat armrest. This gave Officer Turek

ample grounds to believe that yet another warning or even a

citation would be insufficient to cause Atwater to cease the

endangerment of her young children once he had left the scene.

As Officer Turek approached her vehicle, apparently Ms.

Atwater told her children that “they were ‘wrong’ for not

wearing their seat belts and the police officer was just ‘doing his

job.” Pet. Br. 29. Even if Ms. Atwater also made similar

statements to Officer Turek, it is obvious that a police officer

denied Ms. Atwater’s request to take her children to

a nearby friend’s house; instead, Ms. Atwater’s friend

came to the truck and took the children to her house

for safekeeping. Jd. at 52a. Officer Turek did not

search or interrogate Ms. Atwater, but handcuffed

her and took her to the Lago Vista jail, “where she

spent approximately one hour.” Jd. “Atwater con-

cedes that she and her children were not physically

harmed in any way during the incident, either at the

time of the stop, at the time of the handcuffing,

during the transportation to the jail, or during her

stay at the jail.” Jd. at 53a. Ms. Atwater then

appeared before a magistrate and was released after

posting bond of $310. Pet. App. 2a; Pet. Br. 5.5

has no obligation to accept the assurances of offenders that they

will henceforth cease the offense in question.

5 Ms. Atwater alleges that her arrest and detention for one

hour was “particularly invasive and extreme.” Pet. Br. 28. This,

however, is an overstatement, as the circumstances and one-

hour duration of her arrest were minimally intrusive. See

County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)

(probable cause determination within 48 hours of custodial

arrest is constitutionally reasonable) (citing Gerstein, 420 U.S.

at 113).

As just noted, Ms. Atwater conceded that she was not

physically harmed in any way. Pet. App. 52a. In addition,

rather than engage in the potentially problematic practice of a

male officer searching or patting down a female arrestee at the

scene of an arrest, Turek limited his self-protective activity to

handcuffing Ms. Atwater, which is standard police arrest

practice.

Every arresting officer should assume, for his own

safety, that the person to be arrested is armed and will

take the officer’s life if given a chance. This rule holds true

whether the person is being arrested for a minor

misdemeanor, or for a felony. It also holds true regardless

Following her arrest, Ms. Atwater and her husband

(as next friend of their children) filed suit in state

court against the City of Lago Vista, Officer Turek,

and Lago Vista Police Chief Frank Miller. The

defendants removed the case to federal district court.

The plaintiffs asserted 10 causes of action and sought

class certification. Pet. App. 54a-55a.

SUMMARY OF ARGUMENT

A. This Court has emphasized that because the

primary purpose of the Fourth Amendment is to

regulate the police in their day-to-day law

enforcement activities, it is essential that Fourth

Amendment rules “ ‘be expressed in terms that are

readily applicable by the police in the context of...

law enforcement.’” New York v. Belton, 453 U.S. 454,

458 (1981) (citation omitted). For this reason, the

Court has designated probable cause as_ the

Constitution’s measure of the permissibility of an

arrest in all but the rarest of cases. Gerstein v. Pugh,

of whether the offender is a man or a woman, or an old or a

young person....

[When it is not possible for a female officer to search a

female arrestee at the time of the arrest,] the officer should

be guided by his own good sense in insuring his safety and

well-being while taking his prisoner in. Most officers have

found that handcuffing the woman, with her hands in back

of her, is the next best thing when she cannot be carefully

searched.

Raymond E. Clift, A Guide to Modern Police Thinking 189, 191-

92 (3d ed. 1970).

Officer Turek’s use of handcuffs was particularly prudent in

view of the fact that Texas has aifiong the more permissive

handgun laws in the country. See Handgun Control, Inc.,

“Texas Firearm Laws,” <http://www.handguncontrol.org/

stateleg/statelaws.asp>.

420 U.S. 103, 111-12 (1975); Whren v. United States,

517 U.S. 806, 817 (1996). Commission of—and ad-

mitting to—criminal offenses in the presence of the

arresting officer is the strongest possible case of

probable cause. Custodial arrests made under such

circumstances are therefore constitutional under the

Fourth Amendment, absent egregiously invasive

arrest procedures not remotely present here.

Petitioners and their amici are rightly exercised at

the prospect of limitless grants of arrest authority to

the police, but this case poses no risk of such bound-

less police discretion. When, as in this case, a citizen

not only commits three criminal offenses in the

presence of an officer but admits to the officer that

she is committing the offenses, a “ ‘law-abiding

citizen[{]’” is not left “‘at the mercy of the officers’

whim or caprice.’” Gerstein, 420 U.S. at 112 (citation

omitted).

The fact that Ms. Atwater’s offenses were “fine

only” traffic offenses does not alter the applicable

constitutional analysis. Indeed, the facts of this case

have much in common with those of Whren, in which

the officers had observed the plaintiff commit a

traffic violation. Despite the ubiquity of such

offenses, the Whren Court emphasized that it was

“aware of no principle that would allow us to decide

at what point a code of law becomes so expansive and

so commonly violated that the infraction itself can no

longer be the ordinary measure of the lawfulness of

enforcement.” 517 U.S. at 818.

Petitioners and their amici strenuously argue that

the arrest was inappropriate because the seat belt

offenses in question are punishable by a fine, rather

than incarceration, thereby suggesting that the police

need not take them seriously. This argument is both

erroneous as a matter of policy and inconsistent with

this Court’s repeated recognition of the importance of

fines as criminal sanctions. Although traffic offenses

are so common that it would plainly be impracticable

to make them all incarcerable in the first instance,

that in no way diminishes their importance to the

hea!th, safety and welfare of the citizenry.

B. Affirrnance of the judgment below will not result

in “the very sort of unbridled [police] discretion,” Pet.

Br. 7, which petitioners assert was condoned by the

court of appeals. In fact, the authority to make

warrantless arrests for traffic offenses and other

misdemeanors is intensively regulated by the States

and limited as a practical matter by systemic

constraints and the oversight of the political

branches of government.

Every State has laws that address the authority of

law enforcement officers to make warrantless arrests.

Police officers must have express statutory authority

to make warrantless arrests for traffic infractions,

including those punishable by a fine. For example,

Cal. Penal Code § 853.6(i) encourages the use of

citations for traffic offenses; it does not, however,

prohibit custodial arrests. Indeed, it enumerates

several situations in which the police are authorized

to make arrests, rather than simply cite and release

the offender. These include situations in which the

offender is intoxicated, is unable to care for their own

safety, fails to provide adequate identification, or, of

greatest relevance to this case, when there is “a

reasonable likelihood that the offense or offenses

would continue or resume, or that the safety of

persons or property would be imminently endan-

gered by release of the person arrested.” Id.

§ 853.6(i)(7).

Moreover, both police officers and the elected

officials who oversee them are well aware that

arrests are costly and time-consuming for law

enforcement officers. This creates an extremely pow-

erful disincentive to arrest except where necessary

for important law enforcement purposes. See Br. Am.

Cur. Institute on Criminal Justice and Eleven

Leading Experts on Law Enforcement and Correc-

tions Administration and Policy 11.

Finally, and perhaps most important, a categorical

constitutional rule along the lines urged by

petitioners and their amici would be unworkable.

Even if such a prohibition were desirable, it could not

be formulated in a manner that could be fairly

applied by police officers on the beat. This Court has

made it absolutely clear that police officers require

clear rules of straightforward application that they

can feasibly and fairly apply under the stressful

conditions of day-to-day policing. See Belton, 453

U.S. at 458.

The fact that any categorical constitutional prohi-

bition would be unworkable and pose major obstacles

to legitimate law enforcement is demonstrated by the

fact that the relevant model codes fail to contain such

a rule. Moreover, neither petitioners nor their amici

have been able to devise a workable rule, or even to

agree upon what such a rule should be. Given the

extensive regulation of warrantless arrests already in

place in every State, the powerful systemic disin-

centives against costly and time-consuming arrests

unless they serve important law enforcement

purposes, and the existence of extensive political

oversight of the police, no further intervention by this

Court is needed.

ARGUMENT

THE FOURTH AMENDMENT DOES NOT PRO-

HIBIT WARRANTLESS ARRESTS FOR “FINE

ONLY” TRAFFIC OFFENSES COMMITTED IN

THE ARRESTING OFFICER’S PRESENCE

A. Probable Cause Is The Constitution’s Measure Of

The Permissibility Of An Arrest And Commission

Of An Offense In The Arresting Officer’s Presence

Is The Strongest Possible Case Of Probable Cause

Petitioners and their amici rightly decry the

prospect that the police be given “extravagant

grant(s] of discretionary authority.” ACLU Br. Am.

Cur. 6.6 In this regard the ACLU observes that “[i]t

is by now familiar history that the framers’ dismay at

statutes granting such general prerogatives was one

of the principal motivating factors, both for the

Revolution and the creation of the Fourth Amend-

ment itself.” Jd. at 6-7 (citing Nelson B. Lasson, The

History and Development of the Fourth Amendment to

the United States Constitution 13-78 (1937)).’

®The ACLU bases its position at least in part on a

misunderstanding of Texas law. According to the ACLU, “Texas

law delegates to every peace officer the power to arrest . . . any

person who has committed any infraction of its traffic code.”

ACLU Br. at 6. This statement of the law is erroneous. See

note 2, supra (citing Tex. Transp. Code § 543.004, which

prohibits arrests for specified offenses, including speeding).

7 Petitioners’ argument that the custodial arrest of Ms.

Atwater was unconstitutional because the Fourth Amendment

limits warrantless arrests to felonies and misdemeanors

involving breaches of the peace, Pet. Br. 13-20, is without merit

for three reasons.

First, the court of appeals unequivocally held that petitioners

have waived this argument. See Pet. App. 4a-5a n.3. Second,

this Court has repeatedly rejected the contention that its Fourth

More to the point, however, “[t]here is no historical

evidence that the Framers or proponents of the

Fourth Amendment, outspokenly opposed to the

infamous general warrants and writs of assistance,

were at all concerned about warrantless arrests by

local constables and other peace officers.” United

States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J.,

concurring) (citing Lasson, supra, at 79-105). Indeed,

“the Second Congress’ passage of an Act authorizing

such arrests so soon after the adoption of the Fourth

Amendment itself underscores the probability that

the constitutional provision was intended to restrict

entirely different practices.” Jd. at 429-30 (footnote

omitted). See also id. at 420-21 (majority opinion);

Long v. Ansell, 293 U.S. 76, 83 (1934) (“When the

Constitution was adopted, arrests in civil suits were

still common in America.”).

The Fourth Amendment responds to the potential

for unbounded police discretion to arrest by its

requirement of probable cause. To allow arrest on

some lesser basis than probable cause would “ ‘leave

law-abiding citizens at the mercy of the officers’

whim or caprice,’” Gerstein, 420 U.S. at 112 (quoting

Brinegar v. United States, 338 U.S. 160, 176 (1949)),

the precise evil posed by the infamous writs of

Amendment decisions have “‘simply frozen into constitutional

law those enforcement practices that existed at the time of the

Fourth Amendment's passage.’” Steagald v. United States, 451

U.S. 204, 217 n. 10 (1981) (quoting Payton v. New York, 445 U.S.

573, 591 n. 33 (1980)). Finally, even if warrantless arrests were

limited to misdemeanors constituting “breaches of the peace,”

Ms. Atwater’s offenses would satisfy that standard. See City of

Boerne v. Flores, 521 U.S. 507, 539-40 (1997) (Scalia, J.,

dissenting) (in eighteenth-century English and American law,

“keeping ‘peace’ and ‘order’ seems to have meant, precisely,

obeying the laws”) (collecting cases and other authorities).

assistance so understandably (but irrelevantly)

criticized by petitioners and their amici. See also

Whren v. United States, 517 U.S. 806, 817 (1996)

(“probable cause” is the “traditional justification” for

“police intrusion”). Thus, Gerstein explains,

The standard for arrest is probable cause,

defined in terms of facts and circumstances

‘sufficient to warrant a prudent man in believing

that the [suspect] had committed or was

committing an offense.’ This standard, like those

for searches and seizures, represents a necessary

accommodation between the individual’s right to

liberty and the State’s duty to control crime.

420 U.S. at 111-12 (quoting Beck v. Ohio, 379 U.S. 89,

91 (1964) (other citations omitted)). Under this

standard, “a policeman’s on-the-scene assessment of

probable cause provides legal justification for arrest-

ing a person suspected of crime, and for a brief period

of detention to take the administrative steps incident

to arrest.” Id. at 113-14.

In this case, a citizen not only commited three

offenses in the presence of an officer but admitted to

the officer that she had committed the offenses. See

Pet. Br. 29; see also Ringel, supra, at 12 (“Atwater

says she knew she’d get a ticket for not buckling her

kids’ seat belts”). Ms. Atwater was thus not a “ ‘law-

abiding citizen[]” who was left “‘at the mercy of the

officers’ whim or caprice.’” Gerstein, 420 U.S. at 112

(quoting Brinegar, 338 U.S. at 176). On the contrary,

Ms. Atwater’s admission to Officer Turek that she

was in the course of committing three offenses

presented the strongest possible case of probable

cause and rendered her arrest constitutionally

permissible.

While “in principle every Fourth Amendment case,

since it turns upon a ‘reasonableness’ determination,

involves a balancing of all relevant factors. . . [w]ith

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

in doubt where the search or seizure is based upon

probable cause.” Whren, 517 U.S. at 817. In Whren

the Court elaborated on the “rare exceptions” that

require such balancing:

Where probable cause has existed, the only cases

in which we have found it necessary actually to

perform the ‘balancing’ analysis involved

searches or seizures conducted in an extra-

ordinary manner, unusually harmful to an

individual’s privacy or even physical interests—

such as, for example, seizure by means of deadly

force, unannounced entry into a home, entry into

a home without a warrant, or physical pene-

tration of the body[.]

Id. at 818 (citations omitted).

This case does not remotely resemble any of these

“rare exceptions.” As discussed supra at 7 & n. 5, Ms.

Atwater conceded that her arrest caused no physical

harm to her or her children. It was also minimally

intrusive, of short duration, and fully consistent with

accepted police practice for custodial arrests. See id.

Indeed, the facts of this case have much in common

with those of Whren itself, in which officers had

observed the plaintiff commit a “civil traffic

violation.” 517 U.S. at 808.

Despite the commonness of traffic offenses, the

Whren Court emphasized that it was “aware of no

principle that would allow us to decide at what point

a code of law becomes so expansive and so commonly

violated that infraction itself can no longer be the

ordinary measure of the lawfulness of enforcement.”

Id. at 818. Moreover, the Court has held that if even

if it “could identify such exorbitant codes, we do not

know by what standard (or what right) we would

decide, as petitioners would have us do, which

particular provisions are sufficiently important to

merit enforcement.” Jd. at 818-19.8

Petitioners and their amici strenuously argue that

an arrest was inappropriate because the three seat

belt offenses in question are punishable only by a

fine, rather than by incarceration, thereby signifying

that they are not to be taken seriously by law

enforcement officers. This argument is both errone-

ous as a matter of policy and inconsistent with this

Court’s repeated recognition of the importance of

fines as criminal sanctions. See Mayer v. City of

Chicago, 404 U.S. 189, 197 (1971) (“The practical

effects of conviction of even petty offenses . . . are not

to be minimized. A fine may bear as heavily on an

indigent accused as forced confinement.”). See also

Tate v. Short, 401 U.S. 395, 399 (1971) (the State has

a “valid interest in enforcing payment of fines”);

Welsh v. Wisconsin, 466 U.S. 740, 760 (1984) (White,

J., dissenting) (how a State chooses to classify

criminal offenses results from “a variety of social,

cultural, and political reasons”).

® As discussed infra at 21-25, it is at best unclear that

workable constitutional standards for warrantless arrests,

beyond the existence of probable cause, can even be devised.

See New York v. Belton, 453 U.S. 454, 458 (1981) (Fourth

Amendment “‘is primarily intended to regulate the police in

their day-to-day activities and thus ought to be expressed in

terms that are readily applicable by the police in the context of

the law enforcement activities in which they are necessarily

engaged’”) (quoting Wayne R. LaFave, ‘Case-by-Case Adju-

dication’ Versus ‘Standardized Procedures’: The Robinson

Dilemma, 1974 Sup. Ct. Rev. 127, 141).

Because traffic offenses occur so often, it would not

be feasible to make all or even many traffic offenses

mandatorily incarcerable in the first instance. This

in no way diminishes the importance of the enforce-

ment of the traffic laws to the health, safety, and

welfare of the citizenry. Given the fact that their two

young children were standing in the front seat of the

truck at the time of the stop, it is patently

irresponsible of petitioners to argue that Texas’

interest in the enforcement of the laws concerning

the wearing of seat belts by children under the age of

15 “is relatively slight.” Pet. Br. 32. See Safety of

Child Passengers in Motor Vehicles, supra, at 9.

Whren also disposes of the contention that unless

the judgment below is reversed, police officers will

abuse their authority in order to engage in large

numbers of unconstitutional pretextual arrests. See

ACLU Br. Am. Cur. 8. Where probable cause exists

for an arrest—such as when, as here, three offenses

are committed and admitted to in the presence of the

arresting officer, the Court has been “unwilling to

entertain Fourth Amendment challenges based on

the actual motivations of individual offi ,

517 U.S. at 813. apiece

Ms. Atwater’s commission, and admission to

Officer Turek, of three separate seat belt offenses—

that involving herself and, of even greater

seriousness, those of allowing her three and five year

old children to stand, unbelted, in the front seat of

her pickup truck while she was driving—epitomize

probable cause and obviate the need for any further

Fourth Amendment analysis in this case.

B. A Holding That The Fourth Amendment Prohibits

Warrantless Arrests For “Fine Only” Traffic

Offenses Is Unnecessary And Would Intolerably

Handicap Legitimate Law Enforcement

If the Court declines to adopt a Fourth Amend-

ment rule along the lines advocated by petitioners,

the result will not be “the very sort of unbridled

[police] discretion,” Pet. Br. 7, which they assert was

condoned by the court of appeals. In fact, the

authority to make warrantless arrests for traffic

offenses and other misdemeanors is intensively

regulated by the States and is limited as a practical

matter by systemic constraints and oversight of the

police by the political branches of government.

Every State has laws that address the authority of

law enforcement officers to make warrantless arrests.

See Appendix to Br. Am. Cur. of the United States,

Ricci v. Village of Arlington Heights, No. 97-501 (filed

March 1998), cert. dismissed, 523 U.S. 613 (1998).

Police officers in every jurisdiction must have express

statutory authority in order to make warrantless

arrests for traffic infractions, including those punish-

able by a fine. This point is graphically made by Cal.

Penal Code § 853.6(i). While Section 853.6(i)

encourages the use of citations when possible, it does

not prohibit custodial arrests. Indeed, it specifies

numerous situations in which the police are

authorized to make arrests, rather than simply cite

and release the offender. These include instances in

which the offender is intoxicated, is unable to care for

their own safety, has failed or refused to provide

adequate identification, or refused to sign a notice to

appear. See id. §§ 853.6(i(1), (2), (5), (7), (8). See

also Gustafson v. Florida, 414 U.S. 260, 265 (1973)

eee

Os oer A eT? . atone —

(upholding warrantless arrest for driving without

driver’s license in one’s possession).

Of particular relevance to this case, California law

expressly authorizes arrest for fine-only traffic

offenses when there is “a reasonable likelihood that

the offense or offenses would continue or resume, or

that the safety of persons or property would be

imminently endangered by release of the person

arrested.” Id. § 853.6(i7). See also American Bar

Association, Standards for Criminal Justice

§ 10.2-1 (2d ed. 1980), History of Standard (custodial

arrests permissible when necessary “to protect the

accused or others where his continued liberty would

constitute a risk of immediate harm”) (citation

omitted) (quoted in Br. Am. Cur. Institute on

Criminal Justice and Eleven Leading Experts on Law

Enforcement and Corrections Administration and

Policy 22 (hereinafter “Br. Eleven Leading Experts”)).

Some States, like Texas, expressly authorize

warrantless arrests for seat belt violations. State v.

West, 20 S.W.3d at 871; Spence v. State, 1996 Tex.

App. LEXIS 3810 at *11-*12; Palmer v. State, 1994

Tex. App. LEXIS 2605 at *3 (Tex. Ct. App. 1994). See

also State v. Cook, 530 N.W.2d 728, 732 (lowa 1995)

(officer’s observation that motorist was not wearing

seat belt “gave him probable cause to arrest” the

motorist) (citing Iowa Code § 804.7(1)); Kodani v.

Snyder, 89 Cal. Rptr. 2d 362, 366 n.7 (Cal. App. 1999)

(since 1995 California law has authorized an officer

to “stop [] or arrest [] a person for not wearing a seat

belt” even if “the officer ha[s] no other cause to stop

or seize the person other than for that violation”); see

also Br. Am. Cur. ACLU at 25 n. 19 (“a number of

states do seem to permit custodial arrests for a

violation of a fine-only seat belt law”). Other States

20 \

prohibit arrests for seat belt violations alone. See

S.C. Code Ann. §§ 56-5-6520, 56-5-6540; Tenn. Code

Ann. § 55-9-603. While different States may reach

different conclusions on the permissibility of

custodial arrests for fine-only seat belt violations,’ it

is critical to the Court’s decision in this case that the

subject of warrantless arrests for misdemeanors is

intensively regulated in every State.

Second, both police officers and the elected officials

who oversee them are well aware that arrests are

costly and time-consuming for law enforcement

officers. This creates an extremely powerful disin-

centive to arrest except where necessary for

important law enforcement purposes. , The manner in

which this disincentive operates is _ succinctly

explained by petitioners’ amici, who write that

subjecting traffic offenders to custodial arrests

creates

‘serious problems for law enforcement. Short-

term detainees such as Ms. Atwater cause

significant management problems for jail

administrators. They also burden the courts and

magistrates with additional workload in the

hours immediately following arrest. Moreover,

arrests such as this remove the arresting officer

from patrol duty, thus compromising public

*The fact that some States authorize custodial arrests for

seat belt violations while others do not simply illustrates the

fundamental point made by the Fourth Circuit some years ago:

The fourth amendment protects individuals from

unfounded arrests by requiring reasonable grounds to

believe a crime has been committed. The states are free to

impose greater restrictions on arrests, but their citizens do

not thereby acquire a greater federal right.

Street v. Surdyka, 492 F.2d 368, 372 (4th Cir. 1974).

safety..... Correctional professionals accord-

ingly discourage the practice of arresting

misdemeanor offenders, and encourage a

reduction in the number of transient inmates

brought to the jail.

Br. Am. Cur. Eleven Leading Experts 11, 14. The

existence of these powerful practical constraints

establishes that affirmance of the judgment below

will not lead to the tidal wave of abusive arrests

prophesied by petitioners.

Finally, and perhaps most important, a categorical

constitutional rule along the lines urged by peti-

tioners or their amici would be unworkable. As

indicated above, and as is recognized in the laws of

many States, there are simply too many varied and

recurring situations in which the public interest

requires that the police have the authority to make

warrantless arrests of persons committing traffic

offenses in the presence of an officer. Even though

the offense (or at least the first offense) may be

punishable only by a fine, a citation may not suffice

to protect the public interest, or even the interest of

the arrestee. See, e.g., Cal. Penal Code § 853.6(i).

For this reason, a categorical prohibition of warrant-

less arrests for fine only traffic offenses would be “an

intolerable handicap for legitimate law enforcement.”

Gerstein, 420 U.S. at 113.

Moreover, amici respectfully submit that such a

constitutional prohibition could not be formulated in

a manner that would be workable for the police

officers on the beat. This Court has made it

abundantly clear that police officers require clear

rules of straightforward application that they can

feasibly and fairly apply under the stressful condi-

tions of day-to-day policing.

As the Court explained in Belton, the Fourth

Amendment

“is primarily intended to regulate the police in

their day-to-day activities and thus ought to be

expressed in terms that are readily applicable by

the police in the context of the law enforcement

activities in which they are necessarily engaged.

A highly sophisticated set of rules, qualified by

all sorts of ifs, ands, and buts and requiring the

drawing of subtle nuances and hairline distinc-

tions, may be the sort of heady stuff upon which

the facile minds of lawyers and judges eagerly

feed, but they may be ‘literally impossible of

application by the officer in the field.’ ”

453 U.S. at 458 (quoting LaFave, ‘Case-by-Case

Adjudicatioi' Versus ‘Standardized Procedures,’

1974 Sup. Ct. Rev. at 141). Accord Illinois v.

Lafayette, 462 U.S. 640, 648 (1983). Cf. id. at 647

(reasonableness of arrest “does not necessarily or

invariably turn on the existence of alternative ‘less

intrusive’ means”); United States v. Sharpe, 470 U.S.

675, 686-87 (1985) (same).

The fact that any categorical constitutional prohi-

bition would be unworkable and pose insuperable

obstacles to legitimate law enforcement is demon-

strated by the fact that the relevant model codes fail

to contain any such rule. For example, the American

Law Institute, Model Code of Pre-Arraignment

Procedure (1975)—which seeks to balance individual

rights and the needs of law enforcement—expressly

declines to adopt a rule prohibiting warrantless

arrests for “petty misdemeanors” committed in the

presence of the arresting officer. While stating a

preference for the “maximum use of citations,” id.

§ 120.2(4), the drafters of the Code nonetheless

recognized that in many situations it will be “in the

tng Date et ome

public interest” that persons who commit such

offenses be taken into custody rather than simply be

cited and released. Id. The drafters concluded that

“liJt is extremely difficult in drafting a statute to

make determinations that citations shall always be

used for particular crimes.” Jd. commentary at 305.

The other model codes cited by petitioners’ amici

likewise decline to adopt a categorical rule prohib-

iting custodial arrests in cases involving fine only

misdemeanors or traffic offenses. See Br. Am. Cur.

Eleven Leading Experts 21-27 (citing American Bar

Association, Standards for Criminal Justice §§ 10-

2.1—10-2.2 (2d ed. 1980) (citations to be used “to the

maximum extent consistent with the effective

enforcement of the law” but recognizing numerous

exceptions, including when “necessary to prevent

imminent bodily harm to the accused or another” and

enumerating four other exceptions to citation

requirement); National Conference of Commissioners

on Uniform State Laws, Uniform Rules of Criminal

Procedure R. 211 (c) (1974) (recognizing four

exceptions to citation rule, including when offense

involves risk of bodily injury or arrestee will continue

to commit offense); National District Attorneys

Association, National Prosecution Standards

§ 10.2(B) (1st ed. 1977) (citations to be used “to the

greatest degree consistent with public safety” but

recognizing five exceptions)).9

Indeed, in the current edition of its prosecution standards, which is

not cited by petitioners’ amici, the NDAA substantially broadens the

' exceptions to its policy favoring the issuance of citations. See National

District Attorneys Association, National Prosecution Standards

§ 45.2b(2)(c) (2d ed. 1991) (arrest permissible when “there is reason to

believe the accused will commit another crime if released”); id.

§ 45.2b(2)(e) (arrest permissible “when the accused previously has failed

A final demonstration of the erroneousness of the

position of petitioners and their amici is their own

inability to devise a workable rule for the police, or

even to agree upon what such a rule should be.

According to petitioners, “[t]he Fourth Amendment

prohibits custodial arrests for fine-only traffic

offenses except when the arrest is necessary for

enforcement of the traffic laws or when the offense

would otherwise continue and pose a danger to others

on the road.” Pet. Br. 46. This inherently subjective

test plainly fails the requirement of clarity required

by Belton as even judges would frequently disagree

as to its application.

Amicus ACLU proposes a standard that is likewise

impossible for officers or courts to apply in a fair and

consistent way: custodial arrests for “minor offenses”

are permissible “whenever the individual arrest is

reasonable in light of all of the facts—a case-by-case

approach.” Br. Am. Cur. ACLU 26.!° Every misde-

meanor arrest would be subject to judicial challenge

under this amorphous standard, with resultant

burdens on the police on the beat and in the litigation

that would inevitably ensue.

The standard proposed by amicus Eleven Leading

Experts (Br. at 28), while worded differently, is

equally unworkable: “there may not be a custodial

arrest in non-jailable misdemeanor cases absent

exceptional cirumstances.” Not only is it impossible

to appear in response to a citation for an offense,” even if the prior offense

is a parking violation).

10 Under the ACLU “case-by-case approach,” the police and

the courts must “weigh the nature of the intrusion (including

such facts as how many hours the suspect was actually held,

whether handcuffs or shackles were used, whether the suspect

was given fgod, etc.).” Br. Am. Cur. ACLU 26.

——— ae ee

—_——

for the police and for the courts to give clear meaning

to the “exceptional circumstances” standard, but

applying the standard only to “non-jailable” offenses

adds yet another element of unworkability. In every

State the range of misdemeanors is too great for an

officer to know whether every offense is “jailable” or

not. Moreover, in many cases an offense may be

“nonjailable” the first time it is committed but

“jailable” if a repeat offense. See Welsh, 466 U.S. at

746; Carroll v. United States, 267 U.S. 154, 157

(1925). The officer is thereby caught in a no-win

situation—failure to arrest could leave a repeat

offender at large, while making an arrest could

subject the officer to a lawsuit.

The inability of petitioners and their amici to agree

on a single, workable rule for assessing the con-

stitutional reasonableness of arrests for “fine only”

offenses demonstrates that the effort to impose such

a standard judicially will “intolerabl[y] handicap

. . . legitimate law enforcement.” Gerstein, 420 U.S.

at 113. Further constitutional limits on police

authority to arrest for “fine only” offenses, beyond the

Constitution’s requirement of probable cause, are

therefore not warranted.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,