Amicus Curiae Brief — Atwater v. Lago Vista

No. 99-1408

CLLRA

IN THE , Es ih

Supreme Court of the United States

GAIL ATWATER, ef al...

Petitioners,

Vv.

Crry OF LAGO VISTA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

BRIEF OF THE STATES OF TEXAS, ARKANSAS,

COLORADO, DELAWARE, KANSAS, MARYLAND,

MONTANA, OKLAHOMA, SOUTH CAROLINA, AND

VIRGINIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney

General

GREGORY S. COLEMAN

Solicitor Genera!

Counsel of Record

LISA R. ESKOW

Assistant Solicitor General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

Counsel for Amici

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

BEST AVAILABLE COPY

MARK PRYOR

Attorney General of

Arkansas

323 Center St., Ste. 200

Litthe Rock, AR 72201

KEN SALAZAR

Attorney General of

Colorado

1525 Sherman St., 7th Fl.

Denver, CO 80203

M. JANE BRADY

Attorney General of

Delaware

S20 N. French St.

Wilmington, DE 19801

CARLA J. STOVALL

Attorney General of

Kansas

120 S.W. 10th, 2nd FI.

Topeka, KS 66612-1597

J. JOSEPH CURRAN, JR.

Attorney General of

Maryland

200 St. Paul Place

Baltimore, MD 21202

JOSEPH P. MAZUREK

Attorney General of

Montana

215 N. Sanders

P.O. Box 201401

Helena, MT 59620-1401

W.A. DREW EDMONDSON

Attorney General of

Oklahoma

2300 N. Lincoln Blvd...

Ste. 112

Oklahoma City, OK

73105-4894

CHARLES M. CONDON

Attorney General of

South Carolina

P.O. Box 11549

Columbia, SC 29211

MARK L. EARLEY

Attorney General of

Virginia

900 East Main St.

Richmond, VA 23219

EST AVAILABLE COPY

QUESTION PRESENTED

Does the Fourth Amendment limit the use of custodial

arrests for fine-only traffic offenses?

(i)

Pe

An Arrest That Is Supported by Probable

Cause and Is Not Conducted in an Extraordi-

nary Manner Does Not Violate the Fourth

A. There Was Probable Cause to Believe At-

water Committed a Crime......................0000+

B. The Manner in Which Atwater Was Ar-

rested Was Not Extraordinary..................-++

C. The State Has a Legitimate Interest in Hav-

ing Its Laws Obeyed.............cc0ccsssssseseeneneeees

The Court Has Consistently Rejected Cate-

gorical Line-Drawing Under the Fourth

Amendment and Should Do So in This Case as

A. The Common Law Does Not Require the

Court to Devise Fourth Amendment Sub-

categories of Permissible Arrests ................

B. Arrests for Misdemeanor Traffic Offenses

Are Not Akin to “General Warrants”’...........

(ili)

iV

TABLE OF CONTENTS—Continued

Ill. This Case Does Not Present the Issues of Ra-

cial Profiling or Pretextual Arrests to Conduct

Warrantless Car Searches.................cccccccsesseseoes

A. Racial Profiling Is Governed by the Equal

Protection Clause of the Fourteenth

Amendment, Not the Fourth Amend-

ment’s Proscription Against Unreason-

able Searches and Seizures ..............0ccc000.

B. Permitting Arrests for Traffic Offenses

Does Not Conflict with Knowles v. lowa...

CONCLUSION

.

FTTH EEE EEE EEE EEE EERE EEE EEE EEE EEE EEE EEE HEE O EES

25

26

28

ee

v

TABLE OF AUTHORITIES

Cases Page

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

(CAS 1999) (em banc) .0.........ccccccceeeesereeeeeeeenenees 1,7,8

Barry v. Fowler, 902 F.2d 770 (CA9 1990) .......... 23

Berkemer v. McCarty, 468 U.S. 420 (1984) .......... passim

Boyd v. United States, 116 U.S. 616 (1886) .......... 20

California v. Hodari D., 499 U.S. 621 (1991)....... 16, 19

Carroll v. United States, 267 U.S. 132 (1925)....... 18, 19

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 17

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

Eo 7,14

Fields v. City of S. Houston, 922 F.2d 1183 (CAS

I aia atelier eaicica alata 23

Fisher v. Washington Metro. Area Transit Auth.,

690 F.2d 1133 (CA4 1982) .........ccccceeeseeeeeeeeenes 23

Gerstein v. Pugh, 420 U.S. 103 (1975).........00++ 4, 6,9, 14

Gouled v. United States, 255 U.S. 298 (1921)....... 16

Graham v. Connor, 490 U.S. 386 (1989) .............. 7,27

Henry v. United States, 361 U.S. 98 (1959)........... passim

Higbee v. City of San Diego, 911 F.2d 377 (CA9

eee eee 23

John Bad Elk v. United States, 177 U.S. 529

GI cocesiscncenncensensenmntsneneepenmssarinemenatsensceanemnanse 18, 19

Ker v. California, 374 U.S. 23 (1963) .......c.0c-s000 14

Knowles v. lowa, 525 U.S. 113 (1998) ............00006 passim

Kurtz v. Moffitt, 115 U.S. 487 (1885) ............0000+ 18

New York v. Class, 475 U.S. 106 (1986) ........... 12, 13, 21

Payton v. New York, 445 U.S. 573 (1980)............. 3,17

Pyles v. Raisor, 60 F.3d 1211 (CA6 1995)............ 23

Queen v. Lane, 87 Eng. Rep. 884 (Q.B. 1704) ...... 17

Ricci v. Arlington Heights, 116 F.3d 288 (CA7

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

dismissed as improvidently granted, 523 U.S.

GBD Ce ccencccssccscccnescsnemessecsccecescesnsessassasssssssess 23

vi

TABLE OF AUTHORITIES—Continued

Page

Robbins v. California, 453 U.S. 420 (1981).......... 13, 27

Sibron v. New York, 392 U.S. 40 (1968)..........000 3, 14

South Dakota v. Opperman, 428 U.S. 364

EIU isicnesinnnsynsnvcneiiaenanciteiamnaeiiiedimunsisiiaieastainiaiianinisaa 21

Street v. Surdyka, 492 F.24¢368 (CA4 1974)......... 23

Tennessee v. Garner, 471 U.S. 1 (1985).........000000 7

Terry v. Ohio, 392 U.S. 1 (1968) .......cccccccccceeeeeeeees 10

United States v. Brewster, 408 U.S. 501 (1972)... 17

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

United States v. United States Dist. Court, 407

Ss Se Ca icittisindedeittininsintaliaatsndiaciiainiieiiaattiniainins 20

United States v. Watson, 423 U.S. 411 (1976)....... 18, 20

Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (CAI

Sr cnitaitiihinisenaitienitansenaialaini pitied aii cite i 24

Warden v. Hayden, 387 U.S. 294 (1967).....14, 15, 16, 20

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

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

Wilson v. Layne, 526 U.S. 603 (1999) ........cccccceee 23, 24

Wolf v. Colorado, 338 U.S. 25 (1949) ........ccccccceees 19

Constitutional Provisions and Rules

| Ee ee aE 2

TEX. CODE CRIM. PROC. art. 14.01(b)............0000008 2

TEX. TRANSP. CODE §543.001 00........ccccccccceesesseeeees 2

TEX. TRANSP. CODE §545.413 oo....ccccccccccecceceeeceeees 2

TEX. TRANSP. CODE §545.413(a).........ccccccccceeeeeeees 6

TEX. TRANSP. CODE §545.413(D) ........cccccccccceeseeees 6

TEX. TRANSP. CODE §545.413(d) .....c.ccccccccceeseeeees 6

Other Authorities

3 WAYNE R. LAFAVE, SEARCH AND SEIZURE (3d

Se Fe ceaisncceceteitaniannirisintiaataih iene 2

10 HALSBURY’S LAWS OF ENGLAND (3d ed.

Sire nsasimnesnaiiatintcstsicnannntilesiniitinidiiabiaiasiteiadabinietes 19

vii

TABLE OF AUTHORITIES—Continued

Rollin M. Perkins, The Law of Arrest, 25 IOWA

L. REV. 201 (1940).......ccccccccsesseeeeeeerenennenees vee 17, 19

Texas Department of Public Safety, All Field

Service Recruit Training School, Patrol Proce-

dures, T-438 “Traffic Law Enforcement Ac-

tiOM” (1999) .......cscscssesssereseeeeensnnnssnnnssenesennsnenenens 10, 11

IN THE

Supreme Court of the Anited States

GAIL ATWATER, ef al.,

Petitioners,

Vv.

Ciry OF LAGO VISTA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE STATES OF TEXAS, ARKANSAS,

COLORADO, DELAWARE, KANSAS, MARYLAND,

MONTANA, OKLAHOMA, SOUTH CAROLINA, AND

VIRGINIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:

This case asks whether the Fourth Amendment prohibits

the arrest of individuals who commit misdemeanor crimes

punishable by fine but not jail time. The Fifth Circuit, sitting

en banc, held that the arrest of a misdemeanor traffic offender

did not violate the Fourth Amendment where the arrest was

(1) supported by probable cause and (2) not effected in an ex-

traordinary manner. See Atwater v. City of Lago Vista, 195

F.3d 242, 245-46 (CAS 1999) (en banc). For the reasons that

follow, amici urge the Court to affirm the Fifth Circuit’s

judgment.

2

INTEREST OF AMICI

The States of Texas, Arkansas, Colorado, Delaware, Kan-

sas, Maryland, Montana, Oklahoma, South Carolina, and Vir-

ginia appear as amici curiae in support of Respondents. See

Sup. Cr. R. 37.4.

Amici have an interest in this case because it implicates the

States’ power to enact statutes governing arrests of traffic of-

fenders. Specifically at issue are two Texas statutes that pro-

vide peace officers with discretion to arrest individuals who

(1) commit any offense in the officer's presence, or (2) vio-

late vehicle and traffic “rules of the road” as defined by the

Texas Transportation Code. See TEX. CODE CRIM. PRoc.

art. 14.01(b); TEX. TRANSP. CODE §543.001. Petitioners chal-

lenge the constitutionality of Gail Atwater’s arrest for an un-

disputed misdemeanor violation of the Texas Transportation

Code that was committed in a peace officer's presence. See

TEX. TRANSP. CODE §545.413 (defining seatbelt offenses).

As such, Petitioners necessarily put at issue the

constitutionality of the Texas statutes that authorized

Ms. Atwater’s arrest, as well as the constitutionality of discre-

tionary arrest statutes in other states.

Three amici in support of Atwater’ make explicit what is

implicit in Petitioners’ brief: This case asks -whether the

Fourth Amendment prohibits states from enacting statutes

that provide officers discretion to arrest traffic offenders and

other misdemeanants. See Amicus Curiae Br. of Cato Inst. at

2 (“This case presents the question whether the Texas legisla-

ture can bypass the warrant requirement of the Fourth

Amendment and empower executive branch officials to effect

' The statutory arrest provision that is “[b]y far the most common”

amongst the states “permits arrest without warrant for any misdemeanor

committed in the arresting officer's presence.” 3 WAYNE R. LAFAVE,

SEARCH AND SEIZURE §5.1(b), at 13-14 & n.76 (3d ed. 1996).

> Petitioners will be referred to collectively as “Atwater.”

3

warrantless arrest for misdemeanor offenses that do not in-

volve a breach of the peace.”); Amici Curiae Br. of ACLU, et

al., at 26 (“{I]t is not reasonable within the meaning of the

Fourth Amendment for a state to give vast and unchecked

power to the police to arrest for minor regulatory offenses.”);

Amicus Curiae Br. of Texas Crim. Def. Laws. Ass’n at 3

(“[S}tatutes giving police officers the authority to arrest for

traffic citations [are] unconstitutional . . . as applied in this

case.”). The State amici contend that Texas’s arrest statutes

are constitutional and advocate for preservation of states’ tra-

ditional sovereign authority to prosecute and process criminal

offenders within state borders.

SUMMARY OF THE ARGUMENT

Amici do not dispute that the States must legislate in a

manner consistent with the Constitution, including the Fourth

Amendment. See, e.g., Sibron v. New York, 392 U.S. 40, 60-

61 (1968) (“New York is, of course, free to develop its own

law of search and seizure to meet the needs of local law en-

forcement,” provided the state does not “authorize police con-

duct which trenches upon Fourth Amendment rights”); see

also Payton v. New York, 445 U.S. 573, 602 (1980). Amici

contend, however, that the two Texas statutes implicated by

this case fulfill that constitutional mandate.

In any search-and-seizure context, officer discretion must

be exercised in conformance with the Fourth Amendment.

While it is possible for misdemeanor or felony arrests to be

executed in a manner that transgresses constitutional bounda-

ries, the Fourth Amendment contains no categorical prohibi-

tion against arrests for certain types of offenses. As such, the

Fourth Amendment does not proscribe state legislation that

affords officers discretion to arrest misdemeanor traffic of-

fenders. Rather, the Fourth Amendment informs an officer's

exercise of that statutory discretion.

Atwater and her supporting amici do not trust police offi-

cers to obey the Constitution. They presuppose that, given

4

discretion, officers will violate citizens’ rights. Conse-

quently, they urge the Court to set out specific rules limiting

misdemeanor arrests, request that Fourth Amendment lines be

drawn to varying degrees of brightness, and seek constitu-

tionalization of multi-factor, fact-specific arrest tests and

model code guidelines. See, e.g., Atwater Br. at 46; Tex.

Crim. Def. Laws. Ass‘n Br. at 26-28; ACLU Br. at 26; Amici

Curiae Br. of Inst. Crim. Just. at Univ. Minn. L. Sch., et al.,

at 21-27; see also Amicus Curiae Br. of Ams. Effective L.

Enforcement at 8-12 (supporting neither party). The Court

should decline these invitations to micromanage states’ pro-

cedures for enforcing traffic offenses.

No departure from traditional Fourth Amendment princi-

ples is warranted for the subset of offenders who commit

misdemeanor traffic crimes. Carving offense- or punishment-

specific niches out of the Fourth Amendment would be in-

consistent with the Court's prior search-and-seizure jurispru-

dence. And on a practical level, it will promote inconsistency

amongst the States: the constitutionality of arrests for the

same criminal conduct will vary with state legislatures’ dispa-

rate classifications of that conduct as a felony or misde-

meanor, or a jail-term or fine-only offense. Instead of deline-

ating categories of arrestable offenses, the Court should con-

firm that the same Fourth Amendment principles govern all

criminal arrests: unless an arrest is executed in an extraordi-

nary manner, the existence of probable cause ends the consti-

tutional inquiry. See Whren v. United States, 517 U.S. 806,

818-19 (1996); Gerstein v. Pugh, 420 U.S. 103, 113-14

(1975); United States v. Robinson, 414 U.S. 218, 235 (1973);

Henry v. United States, 361 U.S. 98, 102 (1959).

The Fourth Amendment does not require this Court

to circumscribe state sovereignty by categorically pro-

hibiting—or even categorically limiting—statutory discretion

for law enforcement officers to make arrests for mis-

demeanors, criminal traffic violations, fine-only crimes, or

Ge TOE aS

5

any other subcategory of criminal offenses. No line need be

drawn, and no special test formulated, because general Fourth

Amendment principles already govern all exercises of law en-

forcement discretion in the search-and-seizure context.

Arrest is not always the best course of action when the

crime is a misdemeanor fine-only traffic offense. In many

cases, citations will adequately ensure an offender’s appear-

ance. Citations also obviate the need to expend scarce law

enforcement resources on the paperwork and other proce-

dures associated with processing an arrestee. In fact, the

Texas Department of Public Safety trains patrol recruits to

use citations in lieu of arrest whenever possible. See infra

Part I.C. But Texas’s preference for citations reflects a policy

decision, not a constitutional requirement. Certainly, police

departments should be encouraged to develop appropriate

guidelines for efficiently processing traffic offenders. And

state legislatures, too, are free to implement statutory proce-

dures if they so desire. But the Constitution does not mandate

these courses of action or require this Court to micromanage

law enforcement in the context of misdemeanor traffic of-

fenses.

Because the various forms of line-drawing advocated by

Atwater and her supporting amici unnecessarily intrude upon

state sovereignty without any constitutional justification,

amici urge the Court to affirm the Fifth Circuit's judgment.

ARGUMENT

I. AN ARREST THAT IS SUPPORTED BY

PROBABLE CAUSE AND IS NOT CONDUCTED

IN AN EXTRAORDINARY MANNER DOES

NOT VIOLATE THE FOURTH AMENDMENT.

A. There Was Probable Cause to Believe Atwater

Committed a Crime.

The Fifth Circuit applied traditional Fourth Amendment

principles in concluding that Atwater’s arrest for an undis-

6

puted criminal offense did not violate the Constitution. It is

well-settled that “[a] custodial arrest of a suspect based on

probable cause is a reasonable intrusion under the Fourth

Amendment.” Robinson, 414 U.S., at 235; see also Whren,

517 U.S., at 818-19 (“[P]robable cause justifies a search and

seizure.”). Moreover, a judicial determination of probable

cause is not required at the time of arrest. Rather, “a police-

man’s on-the-scene assessment of probable cause provides

legal justification for arresting a person suspected of crime,

and for a brief period of detention to take the administrative

steps incident to arrest.” Gerstein, 420 U.S., at 113-14. —

When an officer arrests “with probable cause, he is pro-

tected” from liability under the Fourth Amendment. Henry,

361 U.S., at 102. Thus, in assessing the constitutionality of

an arrest, the appropriate inquiry is whether at or before the

time of arrest the officer “had reasonable cause to believe that

a crime had been committed.” /d., at 103.°

Atwater has never denied that she failed to wear her seat-

belt or to belt her two children. These are misdemeanor of-

fenses under Texas law. See TEX. TRANSP. CODE

§§545.413(a),(b),(d). The arresting officer personally wit-

nessed Atwater’s offenses and thus had probable cause to be-

lieve she committed a crime. Consequently, the arrest was

reasonable under the Fourth Amendment. See Robinson, 414

U.S., at 235. Nothing more was required to satisfy “the usual

rule that probable cause to believe the law has been broken

‘outbalances’ private interest in avoiding police conduct.”

Whren, 517 U.S., at 818.

, Henry involved a federal statute that governed warrantless arrests by

FBI officers. 361 U.S., at 100. The Court noted, however, that the statu-

tory standard paralleled the constitutional standard and therefore used

Fourth Amendment principles to analyze the arrest and search at issue in

that case. /d.

7

B. The Manner in Which Atwater Was Arrested

Was Not Extraordinary.

The Fifth Circuit correctly concluded that once probable

cause exists, no further constitutional scrutiny is needed

unless the arrest is executed in an extraordinary manner. See

Lago Vista, 195 F.3d, at 246. As the Court explained in

Whren, there is no need to balance governmental and individ-

ual interests when there is probable cause to believe a crime

has been committed:

“Where probable cause has existed, the only cases in

which we have found it necessary actually to perform

the ‘balancing’ analysis involved searches and seizures

conducted in an extraordinary manner, unusually harm-

ful to an individual's privacy or even physical interests.”

517 US., at 818.

An extraordinary manner of arrest can occur in several

ways. For example, an officer w/o has probable cause to

make an arrest, but uses excessive force in the course of ar-

rest, effects an unreasonable seizure in violation of the Fourth

Amendment. See Graham v. Connor, 490 U.S. 386, 394-95

(1989) (citing Tennessee v. Garner, 471 U.S. 1 (1985)). An

officer can also effect an “extraordinary” search or seizure

through “unannounced entry into a home, entry into a home

without a warrant, or physical penetration of the body.”

Whren, 517 U.S., at 818 (citations omitted). In addition, sub-

jecting a custodial arrestee to unreasonable delay of a judicial,

probable-cause determination can violate the Fourth Amend-

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

56-58 (1991). These cases all speak to Fourth Amendment

limitations on the manner of executing an arrest, not the per-

missibility of making an arrest.

There was nothing extraordinary about the manner of Ms.

Atwater’s arrest. She was taken to the Lago Vista police sta-

tion, routinely processed, and brought before a magistrate

within an hour. See Atwater Br. at 29. She “admits that she

suffered no physical harm during or as a result of the arrest.”

Lago Vista, 195 F.3d, at 246. Ms. Atwater no doubt found

this experience “humiliating.” Atwater Br. at 28. And while

her arrest may have seemed extraordinary to her personally,

see id., at 2, it was not “extraordinary” in any constitutional

sense.

At base, Atwater and her supporting amici argue that her

arrest was extraordinary simply because it was for a traffic

violation. See, e.g., Atwater Br. at 38-39; Tex. Crim. Def.

Laws. Ass’n Br. at 6. They contend that everyone violates at

least some traffic law every time they drive, suggesting that

the frequency of violations somehow limits the State’s inter-

est in enforcing these laws. See, e.g., Atwater Br. at 20-22:

Amici Curiae Br. of Nat’! Ass’n Crim. Def. Laws. at 3, 11.°

The Court unanimously rejected a virtually identical argu-

ment in Whren:

“Petitioners urge as an extraordinary factor in this

case that the ‘multitude of applicable traffic and equip-

ment regulations’ is so large and so difficult to obey per-

fectly that virtually everyone is guilty of violation, per-

muitting the police to single out almost whomever they

wish for a stop. But we are aware of no principle that

would allow us to decide at what point a code of law be-

comes sO expansive and so commonly violated that in-

fraction itself can no longer be the ordinary measure of

the lawfulness of enforcement. And even if we 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 suffi-

— important to merit enforcement.” 517 U.S., at

There is nothing inherently extraordinary about an arrest

for a misdemeanor traffic offense. The Fourth Amendment

4

Atwater fully acknowledges the State’s authority to enforce traffic

laws through stops, but contends that enforcement through arrest is im-

permissible. See Atwater Br. at 22.

9

does not require the Court to ferret through each state’s motor

vehicle code in order to constitutionalize a hierarchy of ar-

restable offenses. See id.

A violation of law is a violation law. States retain discre-

tion to process offenders in the manner of their choosing—

provided it is not an unconstitutionally extraordinary manner.

Ms. Atwater was arrested in accordance with Texas law for

offenses the arresting officer personally witnessed and thus

had probable cause to believe she had committed. Ms.

Atwater’s Fourth Amendment rights were not violated. See

Robinson, 414 U.S., at 235; see also Whren, 517 U.S., at

818-19: Gerstein, 420 U.S., at 113-14; Henry, 361 U.S., at

102. The Fifth Circuit's judgment should be affirmed.

C. The State Has a Legitimate Interest in Having

Its Laws Obeyed.

Because traditional Fourth Amendment principles demon-

strate that no violation of Ms. Atwater’s rights occurred, At-

water and her supporting amici ask the Court to create new

rules governing arrests for misdemeanor fine-only traffic of-

fenses—tules on which even Ms. Atwater and her amici can-

not agree. According to Atwater, the Court should order

States to prohibit such arrests unless “necessary for enforce-

ment of the traffic laws or when the offense would otherwise

continue and pose a danger to others on the road.” Atwater

Br. at 46. The Texas Criminal Defense Lawyers Association

advocates that arrests are unreasonable unless (1) an officer

can articulate a valid interest in arrest apart from mere com-

mission of a crime for which a citation could issue under state

law, or (2) probable cause develops “from another source in-

dependent of the fine-only offense.” Tex. Crim. Def. Laws.

Ass’n Br. at 26-28. And the ACLU flatly contends that no

State interest justifies arrests for fine-only traffic crimes ab-

sent “exigent circumstances.” ACLU Br. at 26.

Atwater and her amici miss a fundamental point: An arrest

“is intended to vindicate society’s interest in having its laws

10

obeyed.” Terry v. Ohio, 392 U.S. 1, 26 (1968). Atwater may

believe that committing traffic crimes is no big deal. But the

State does not forfeit its legitimate interest in obedience to the

law simply because the law at issue is a misdemeanor traffic

crime.

Reasonable officers might differ as to whether arresting

Ms. Atwater was the ideal course of action under the circum-

stances presented in this case. Undoubtedly, the more com-

mon practice would be to issue a citation in lieu of arrest.

See, e.g., Knowles v. lowa, 525 U.S. 113, 115 n.1 (1998) (not-

ing that “[t}he practice in lowa of permitting citation in lieu

of arrest is consistent with law reform efforts”). In fact, the

Texas Department of Public Safety’s training manual for new

recruits explicitly encourages use of citations, instructing of-

ficers to arrest traffic offenders only when necessary “to pro-

tect the violator an[{dJ/or the public, an{dJ/or to assure his ap-

pearance in court when such appearance is doubtful.” Texas

Department of Public Safety, All Field Service Recruit Train-

ing School, Patrol Procedures, T-438 “Traffic Law Enforce-

ment Action” (1999). Specifically, Texas’s manual com-

mands that citations be used unless “by issuing a citation and

releasing the violator, the safety of the public and/or the vio-

lator might be imperiled as in the case of D.W.1.” Jd. Texas

teaches new recruits that citations offer many advantages, in-

cluding:

“1. Court dates may be set at a time convenient for both

violator and officer.

2. Time away from active patrol is kept at a minimum.

3. Court dockets can be equalized by adjusting appear-

ance dates.

4. Convenience of violator who might be unduly delayed

if custody arrest was made at that particular time.

5. Better public relations in a good number of cases.”

Id.

11

Citations also enable officers to promote public safety by

staying out on patrol rather than bringing offenders into the

station for custodial processing. See id.; see also Inst. Crim.

Just. Br. at 11, 15-16 & n.10. Finally, citations alleviate ad-

ministrative burdens on support staff who have to complete

extensive paperwork and related requirements associated with

processing a custodial arrest. See id., at 11-12. It is not sur-

prising, therefore, that many model guidelines advocate use

of citations in lieu of arrest for misdemeanor traffic offenses.

See Ams. Effective L. Enforcement Br. at 8-12 (detailing

ALI, ABA, and Uniform Acts standards). State amici support

this approach and agree that in most instances issuance of a_

citation for a traffic offense makes the most practical sense.

But this reflects a policy preference, not a constitutional rule.

Some may disapprove of Ms. Atwater’s arrest, but that

does not mean the Constitution prohibited it. Certainly, the

Constitution does not proscribe Texas from enacting statutes

that provide officers with discretion to arrest misdemeanor of-

fenders. In fact, this Court has expressly contemplated that

arrests for misdemeanor traffic offenses can and will occur.

For example, in evaluating the applicability of Miranda to po-

lice questioning for traffic offenses, the Court stated that “we

have no doubt that, in conducting most custodial interroga-

tions of persons arrested for misdemeanor traffic offenses, the

police behave responsibly and do not deliberately exert pres-

sures upon the suspect to confess against his will.” Berkemer

v. McCarty, 468 U.S. 420, 433 (1984) (emphasis added). The

Court noted that “[t]he occasions on which the police arrest

and then interrogate someone suspected only of a misde-

meanor traffic offense are rare.” /d., at 434. But the Court did

not assume that such arrests could never occur; and there was

no suggestion that such arrests are unconstitutional.

Certainly, nothing in the Fourth Amendment. requires

states to compel police officers to arrest traffic offenders. As

the Court stated in Berkemer:

12

“State laws governing when a motorist detained pursuant

to a traffic stop may be issued a citation instead of taken

into custody vary significantly, but no State requires that

a detained motorist be arrested unless he is accused of a

specified serious crime, refuses to promise to appear in

court, or demands to be taken before a magistrate.” /d.,

at 437 n.28 (emphasis added) (internal citations omitted).

See also Knowles, 525 U.S., at 115 (noting that lowa law au-

thorizes police officers to either arrest individuals who com-

mit traffic offenses or follow “the far more usual practice of

issuing a citation in lieu of arrest or in lieu of continued cus-

tody after an initial arrest”); Robinson, 414 U.S., at 248 (Mar-

shall, J., dissenting) (“Although, in this particular case, Offi-

cer Jenks was required by police department regulations to

make an in-custody arrest rather than to issue a citation, in

most jurisdictions and for most traffic offenses the determina-

tion of whether to issue a citation or effect a full arrest is dis-

cretionary with the officer.”).

Just as nothing in the Fourth Amendment compels arrests

for misdemeanor traffic offenses, nor does anything in the

amendment prohibit such arrests. See New York v. Class, 475

U.S. 106, 131 (1986) (White, J., dissenting) (“Class was un-

licenced and the police were not constitutionally required

merely to give him a citation and let his unlicenced driving

continue.”) (emphasis added). As Justice Stevens has ob-

served:

“It is, of course, true that persons apprehended for traffic

violations are frequently not required to accompany the

arresting officer to the police station before they are

permitted to leave on their own recognizance or by using

their driver’s licenses as a form of bond. It is also possi-

ble that state law or local regulations may in some cases

_prohibit police officers from taking persons into custody

for violation of minor traffic laws. As a matter of consti-

tutional law, however, any person lawfully arrested for

13

the pettiest misdemeanor may be temporarily placed in

custody.” Robbins v. California, 453 U.S. 420, 450

(1981) (Stevens, J., dissenting) (emphasis added).

Thus, a driver who commits a misdemeanor traffic offense

“could make no constitutional objection to a decision by the

officer to take the driver into custody.” /d., at 452.

In past opinions, the Court has referenced, without criti-

cism, state statutes that permit arrests for misdemeanor traffic

offenses. See, e.g., Knowles, 525 U.S., at 115 (citing lowa’s

Statute permitting arrests for any violation of traffic or motor

vehicle equipment laws); Robinson, 414 U.S., at 220-21 &

n.1 (citing D.C. statute permitting arrests for operating a

motor vehicle after revocation of a driver’s permit); Class,

475 U.S., at 108, 118 (citing New York statute permitting

arrests for traffic offenses including speeding and driving

with a cracked windshield); see also Robbins, 453 U.S., at

450 n.12 (Stevens, J., dissenting) (referencing state laws that

afford police officers “discretion to make a ‘custodial arrest’

for violation of any traffic law”).

The Court has also discussed, again without criticism, local

police department procedures that require an officer to sum-

marily arrest and take into custody certain traffic offenders.

See Robinson, 414 U.S., at 221 n.2 (describing the D.C. Met-

ropolitan Police Department’s standard operating proce-

dures). In Robinson, the Court incorporated local police pro-

cedures within its rationale for refusing to explore whether a

traffic-offense arrest was a mere pretext to search for drugs:

“We think it is sufficient for purposes of our decision that re-

spondent was lawfully arrested for an offense, and that [the

officer’s} placing him in custody following that arrest was not

a departure from established police department practice.”

Id., at 221 n.1 (emphasis added).

This analysis makes sense, because once probable cause is

established it is up to state legislatures and local police de-

14

partments to determine whether to mandate—or for that mat-

ter, prohibit—arrests for particular categories of crimes.

“[{T]he Constitution does not impose on the States a rigid pro-

cedural framework.” McLaughlin, 500 U.S., at 53. When the

Fourth Amendment is at issue, “individual States may choose

to comply in different ways.” Id.; Gerstein, 420 U.S., at 113-

14 (recognizing “the desirability of flexibility and experimen-

tation by the States” with respect to criminal procedure laws),

see also Ker v. California, 374 U.S. 23, 34 (1963).

It is up to the States to develop procedures for processing

criminal offenders, provided those procedures are consistent

with the Fourth Amendment. See Sibron, 392 U.S., at 60-61.

If an individual violates the law, arresting him will not offend

the Constitution unless the arrest is processed in an unreason-

able manner. See Whren, 517 U.S., at 818. Because Ms. At-

water was not processed in a unreasonable manner, no viola-

tion of her Fourth Amendment rights occurred.

Il. THE COURT HAS CONSISTENTLY RE-

JECTED CATEGORICAL LINE-DRAWING

UNDER THE FOURTH AMENDMENT AND

SHOULD DO SO IN THIS CASE AS WELL.

The Court has previously declined to compartmentalize the

Fourth Amendment into predefined categories of permissible

police conduct. See, e.g., Robinson, 414 U.S., at 234-35 (re-

fusing to limit the search-incident-to-arrest rule in the context

of an arrest for driving with a revoked license, and conclud-

ing that Fourth Amendment principles advocate for “treating

all custodial arrests alike for purposes of search justifica-

tion”); Warden v. Hayden, 387 U.S. 294, 300-01 (1967) (re-

fusing to create Fourth Amendment categories of seizable and

nonseizable types of evidence); cf. Berkemer, 468 U.S., at

429 (refusing “to carve an exception out of” Miranda in the

ee

15

context of custodial interrogation for misdemeanor traffic of-

fenses).°

In Hayden, the Court rejected the notion that stricter consti-

tutional rules were required for seizures of certain types of

personal property possessed by a suspect—namely, “mere

evidence” of a crime as opposed to the fruits or instrumentali-

ties of a crime. 387 U.S., at 300-01. Instead, general Fourth

Amendment principles would determine the reasonableness

of all evidentiary seizures. See id., at 309-10 (“[T]here is no

viable reason to distinguish intrusions to secure ‘mere evi-

dence’ from intrusions to secure fruits, instrumentalities, or

contraband.”).°

In declining to engage in categorical line-drawing, the

Court cited the plain text of the Constitution: “Nothing in the

language of the Fourth Amendment supports the distinction

between ‘mere evidence’ and instrumentalities, fruits of

crime, or contraband.” /d., at 301. Similarly, nothing in the

plain language of the amendment supports a distinction

between permissible seizures (i.e., arrests) based on the

* While the Miranda protections are rooted in the Fifth Amendment's

prohibition against self-incrimination, Berkemer centered on the obliga-

tions of police to give Miranda warnings during custodial arrests for mis-

demeanor traffic violations, which are “seizures” governed by the Fourth

Amendment. The Court declined to define different constitutional rules

for subcategories of arrests depending on “the nature or severity of the of-

fense for which [the arrestee] is suspected or for which he was arrested.”

468 U.S., at 434.

* Similarly, Berkemer held that “a person subjected to custodial inter-

rogation is entitled to the benefit of the procedural safeguards enunciated

in Miranda, regardless of the nature or severity of the offense of which he

is suspected or for which he was arrested.” 468 U.S., at 434. If custodial

interrogations for misdemeanor traffic offenses were excepted from the

general rule, “the end result would be an elaborate set of rules, interlaced

with exceptions and subtle distinctions, discriminating between different

kinds of custodial interrogations. Neither the police nor criminal defen-

dants would benefit from such a development.” /d., at 432.

16

category of criminal offense. The Fourth Amendment pro-

hibits unreasonable seizures—not seizures for misde-

meanors as opposed to felonies, much less fine-only traffic

misdemeanors as opposed to all other crimes.

A. The Common Law Does Not Require the Court

to Devise Fourth Amendment Subcategories of

Permissible Arrests.

The Court has rejected the notion that the Fourth Amend-

ment only allows searches and seizures that were permitted at

common law. In Hayden, for example, the Court declined to

adopt common law categories of seizable property as Fourth

Amendment requirements. Recognizing that the “the com-

mon law of search and seizure” permitted seizure of contra-

band and fruits of a crime, but not of evidence to help appre-

hend and convict criminals, the Court determined that these

common law distinctions were “based on premises no longer

accepted as rules governing the application of the Fourth

Amendment.” /d., at 300-01, 303. Hayden overruled a prior

case that had tracked common law reasoning and erroneously

concluded “that the Constitution virtually limited searches

and seizures to these categories.” I/d., at 308 (citing Gouled v.

United States, 255 U.S. 298 (1921)) (emphasis added). As

Hayden made clear, no constitutional search-and-seizure sub-

categories exist. Rather, “[t}he requirements of the Fourth

Amendment can secure the same protection of privacy

whether the search is for ‘mere evidence’ or for fruits, in-

strumentalities or contraband.” /d., at 307.

Similarly, the Fourth Amendment does not compel consti-

tutionalization of the limited, common law arrest categories

Atwater advocates. First, as evidenced by Hayden, common

law search-and-seizure categories are not dispositive of

Fourth Amendment protections. See 387 U.S., at 300-01,

303-04; see also California v. Hodari D., 499 U.S. 621, 626

n.2 (1991) (“The common law may have made an attempted

17

seizure unlawful in certain circumstances; but it made many

things unlawful, very few of which were elevated to constitu-

tional proscriptions.”); Welsh v. Wisconsin, 466 U.S. 740, 756

(1984) (White, J., dissenting) (observing that the common

law “requirement that a misdemeanor must have occurred in

the officer’s presence to justify a warrantless arrest is not

grounded in the Fourth Amendment, and we have never held

that a warrant is constitutionally required to arrest for nonfel-

ony offenses occurring out of the officer’s presence”) (cita-

tions omitted). Contrary to Atwater’s suggestions, “this Court

has not simply frozen into constitutional law those law en-

forcement practices that existed at the time of the Fourth

Amendment’s passage.” Payton, 445 U.S., at 591 & n.33.

Second, even assuming the common law rule applied, it

would not mandate judgment in Atwater’s favor. Atwater’s

common law argument is predicated solely on the meaning of

“breach of the peace”—a term to which varying definitions

have been ascribed, as she herself acknowledges. See Atwa-

ter Br. at 16-17; see also Rollin M. Perkins, The Law of Ar-

rest, 25 lowA L. REv. 201, 229 (1940) (noting “some dis-

agreement” over common law authority to arrest for offenses

committed in an officer’s presence but that do not cause pub-

lic disorder). To the extent “breach of the peace” meant a

violation of law, as opposed to a public disturbance, an arrest

for any misdemeanor criminal offense committed in an offi-

cer’s presence would be permissible under the common law.

See, e.g., City of Boerne v. Flores, 521 U.S. 507, 538-40

(1997) (Scalia, J., concurring) (noting that in the period lead-

ing up to ratification of the Bill of Rights “keeping ‘peace’

and ‘order’ seems to have meant, precisely, obeying the laws.

‘[E]very breach of the law is against the peace.’”) (citing

Queen v. Lane, 87 Eng. Rep. 884, 885 (Q.B. 1704)); of.

United States v. Brewster, 408 U.S. 501, 521 (1972) (noting, ~

in construing the Speech or Debate Clause, that “when the

Constitution was written the term ‘breach of the peace’ did

not mean, as it came to mean later, a misdemeanor such as

18

disorderly conduct but had a different 18th century usage,

since it derived from breaching the King’s peace and thus

embraced the whole range of crimes at common law’).

Furthermore, this Court has frequently stated the common

law rule for misdemeanor arrests without specific reference to

any breach-of-the-peace requirement—emphasizing, instead,

that a misdemeanor must have been committed in an officer's

presence to justify a common law arrest. See, e.g., United

States v. Watson, 423 U.S. 411, 418 (1976) (“The cases con-

struing the Fourth Amendment thus reflect the ancient com-

mon-law rule that a peace officer was permitted to arrest

without a warrant for a misdemeanor or felony committed in

his presence as well as for a felony not committed in his pres-

ence if there was reasonable ground for making the arrest.”);

John Bad Elk v. United States, 177 U.S. 529, 534 (1900)

(“So, an officer, at common law, was not authorized to make

an arrest without a warrant, for a mere misdemeanor not

committed in his presence.”); Kurtz v. Moffitt, 115 U.S. 487,

498-99 (1885) (“By the common law of England, neither a,

r —->--" civil Officer nor a private citizen had the right, without a war-

rant, to make an arrest for a crime not committed in his pres-

ence, except in the case of felony, and then only for the pur-

pose of bringing the offender before a civil magistrate.”); cf.

Carroll v. United States, 267 U.S. 132, 156 (1925) (stating, as

the common law “usual rule,” that an officer “may only arrest

without a warrant one guilty of a misdemeanor if committed

in his presence,” but noting that the rule “is sometimes ex-

pressed” in terms of “a breach of the peace . . . committed in

his presence”). Ms. Atwater does not dispute that she com-

mitted a misdemeanor offense in the arresting officer’s pres-

ence. This suffices under the “usual” common law rule ar-

ticulated by the Court, and it certainly satisfies the demands

of the Fourth Amendment.

Finally, and most importantly, Atwater fails to recognize

that a state, by statute, may authorize arrests that would not

19

have been permissible at common law. “[I]t is generally rec-

ognized today that the common law authority to arrest with-

Out a warrant in misdemeanor cases may be enlarged by stat-

ute, and this has been done in many of the states.” See Welsh,

466 U.S., at 756 (White, J., dissenting) (quotation marks

omitted); see also Carroll, 267 U.S., at 164, 166-67

(McReynolds, J., dissenting) (noting that statutes can abro-

gate common law restrictions on misdemeanor arrests and

listing examples where Congress has expressly done so);

John Bad Elk, 177 U.S., at 535 (looking to South Dakota law

to determine whether the common law arrest rule had been

expanded by statute); see also 10 HALSBURY’S LAWS OF

ENGLAND §§632, 639-642, at 342, 346-51 (3d ed. 1955); Per-

kins, supra, 25 IOWA L. REV., at 230.

Atwater glosses past the well-established principle that

“[aJn arrest without a warrant may be under a power con-

ferred by common law or by statute.” 10 HALSBURY’S LAWS

OF ENGLAND §632, at 342 (emphasis added). She mischarac-

terizes legislation expanding common law arrest rules as

something that occurred only before the Fourth Amendment

applied to the states. See Atwater Br. at 18 (citing Wolf v.

Colorado, 338 U.S. 25, 27-28 (1949)). To the contrary, there

has been consistent, post-Wolf recognition of state search-

and-seizure powers beyond those permitted at common law.

See, e.g., Hodari, 499 U.S., at 626 n.2; Welsh, 466 U.S., at

756 (White, J., dissenting). Moreover, this Court has repeat-

edly acknowledged, without apparent alarm, the existence of

State statutes that authorize the type of traffic arrests Atwater

contends the common law would prohibit. See supra Part

LC. Contrary to Atwater’s suggestion, common law arrest

rules simply do not control the Fourth Amendment analysis in

this case.

20

B. Arrests for Misdemeanor Traffic Offenses Are

Not Akin to “General Warrants.”

There is no merit to Atwater’s argument that permitting

fine-only misdemeanor arrests affords officers boundless

search-and-seizure discretion reminiscent of British “general

warrants,” which the House of Commons declared illegal in

1766 and the Framers rejected when they enacted the Fourth

Amendment. See Henry, 361 U.S., at 100-01 & n.1; Hayden,

387 U.S. at 301; see also Boyd v. United States, 116 U.S. 616,

624-26 (1886). General warrants provided open-ended au-

thority for British officers “to arrest and search on suspicion,”

without any requirement that probable cause exist. Henry,

361 U.S., at 100. The Secretary of State primarily issued

general warrants to search homes for private papers and

books, hoping to uncover writings that could be used to con-

vict their owner of “heinously libelous” denunciation of the

government. Boyd, 116 U.S., at 625-26.

Permitting arrests for misdemeanor traffic offenses is not

remotely comparable to issuance of general warrants. In fact,

“[t]here is no historical evidence that the Framers or propo-

nents 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.” Watson, 423 U.S., at 429 (Powell, J.,

concurring).

The distinctions between general warrants and on-the-spot

arrests for traffic offenses are obvious. First and foremost,

such arrests do not entail intrusions upon the sanctity of one’s

home. “It is axiomatic that the ‘physical entry of the home is

the chief evil against which the wording of the Fourth

Amendment is directed.’” Welsh, 466 U.S., at 748 (quoting

United States v. United States Dist. Court, 407 U.S. 297

21

(1972)).” A home intrusion raises Fourth Amendment con-

cerns distinct from those present in a public arrest immedi-

ately following commission of a traffic crime. Compare

Welsh, 466 U.S., at 750 (“Before agents of the government

may invade the sanctity of the home, the burden is on the

government to demonstrate exigent circumstances that over-

come the presumption of unreasonableness that attaches to all

warrantless home entries.”), with Class, 475 U.S., at 113

(“Automobiles, unlike homes, are subject to pervasive and

continuing governmental regulation and controls, including

periodic inspection and licensing requirements.”) (quoting

South Dakota v. Opperman, 428 U.S. 364, 368 (1976)).

Second, police officers’ discretion to arrest traffic offend-

ers is not boundless. Rather, it is squarely circumscribed by

the state statute that defines the offense on which the arrest

must be based. Officers cannot make up crimes. Moreover,

’ The Institute of Criminal Justice amici discuss Welsh as though it

were an opinion focused on the minor nature of traffic offenses rather than

the constitutional requirement that exigent circumstances justify war-

rantless entry of a home. See Instit. Crim. Just. Br. at 18-20. True, Welsh

did involve an arrest for a non-jailable civil traffic offense, and the Court

did note that the State of Wisconsin's classification of the offense signaled

a lesser state interest in arresting the offender. 466 U.S., at 754 & n.14.

However, the issue before the Court was not the permissibility of a routine

public arrest, but whether there were exigent circumstances to justify a

warrantless intrusion into the offender's home for purposes of making the

arrest therein. Given this inquiry, the Court concluded that “the special

protection afforded the individual in his home by the Fourth Amendment”

prohibited a warrantless entry of the offender’s home and intrusion into

“the privacy of his bedroom for a noncriminal, traffic offense.” /d., at

753-54.

Atwater was not arrested pursuant to a warrantless entry of her home.

Moreover, the Texas traffic law at issue, unlike the Wisconsin statute con-

sidered in Welsh, creates a criminal offense, albeit a non-jailable misde-

meanor. Welsh offers no insight into the distinct constitutional question

presented here: whether an officer can effect a routine, public arrest of a

criminal offender when the crime happens to be traffic offense.

22

they cannot arrest on the type of “mere suspicion” that suf-

ficed for purposes of general warrants. Henry, 361 U.S., at

101. Instead, the officer must have probable cause to believe

that an individual has committed an actual crime as defined

by law. See id., at 102.

Atwater may disagree with the Texas Legislature’s deci-

sion to criminalize certain traffic offenses. If so, she can

lobby for a change in the law. Cf. Welsh, 466 U.S., at 754

(noting that “(t]he State of Wisconsin has chosen to classify

the first offense for driving while intoxicated as a noncrimi-

nal, civil forfeiture offense for which no imprisonment is pos-

sible”) (emphasis added). But Atwater cannot contend that

her arrest for an undisputed criminal violation of Texas law

was unconstitutional, per se, simply because her crime was a

misdemeanor, fine-only traffic offense. The Fourth Amend-

ment does not curtail states’ discretion to criminalize certain

forms of conduct or to impose varying penalties for state-

defined crimes. See Welsh, 466 U.S., at 755-56 (Blackmun,

J, concurring) (criticizing Wisconsin's fine-only penalties for

first-offender drunk drivers but noting that “if Wisconsin and

other States choose by legislation thus to regulate their pen-

alty structure, there is, unfortunately, nothing in the United

States Constitution that says they may not do so”).

Ms. Atwater committed a crime under Texas law. A po-

lice officer saw her commit that violation, and she was ar-

rested. This was an embarrassing event in her life, but em-

barrassment does not translate into constitutional injury. Be-

cause Ms. Atwater committed a crime, the existence of prob-

able cause ends the constitutional inquiry, and it insulates the

arresting officer from liability. See Whren, 517 U.S., at 818-

19; Robinson, 414 U.S., at 235; Henry, 361 U.S., at 102.*

* Even if the Court were to announce special arrest standards for fine-

only traffic crimes under which Ms. Atwater’s arrest is deemed unconsti-

tutional, Officer Turek, who made the arrest, would not be liable. On

March 26, 1997, it was not clearly established that the Fourth Amendment

23

prohibits arrests for undisputed misdemeanor traffic offenses, and he is

therefore entitled to qualified immunity. See Wilson v. Layne, 526 U.S.

603, 609, 614 (1999). Indeed, far from indicating a constitutional prob-

lem, existing law suggested that Atwater’s arrest was lawful. The Fifth

Circuit—to which a reasonable Texas peace officer would look for guid-

ance—had expressly held that a warrantless misdemeanor arrest, if sup-

ported by probable cause, does not violate the Fourth Amendment. See

Fields v. City of S. Houston, 922 F.2d 1183, 1189 (CAS 1991) (relying on

Street v. Surdyka, 492 F.2d 368, 372-73 (CA4 1974)). Thus, under con-

trolling precedent in Officer Turek’s jurisdiction, a reasonable officer

could believe that arresting Ms. Atwater was constitutional. See Wilson,

526 U.S., at 617. Moreover, the consistent signal from this Court had

been that arrests for misdemeanor traffic violations would not violate the

Fourth Amendment if supported by probable cause. See, e.g., Robinson,

414 US., at 221 n.1, 235; see generally supra Part 1.C (discussing cases).

Under these circumstances, qualified immunity applies.

Furthermore, at the time of arrest, other circuit authority confirmed that

misdemeanor traffic arrests need only be supported by probable cause.

See Barry v. Fowler, 902 F.2d 770 (CA9 1990) (holding that probable

cause justified an arrest for the misdemeanor of vehicle tampering, where

a daughter asked a friend to paste a “no trespassing” sign on the wind-

shield of a car parked illegally on her parents’ property). And, in general,

the consensus among the circuits was that arrests for misdemeanor, fine-

only, or local petty offenses were permissible whenever supported by

probable cause. See, ¢.g., Pyles v. Raisor, 60 F.3d 121i, 1215 (CA6

1995) (holding that arrest for misdemeanor offense of providing a sip of

beer to a seventeen-year-old at a rock concert did not violate the Fourth

Amendment because it was supported by probable cause); Higbee v. City

of San Diego, 911 F.2d 377, 379-80 (CA9 1990) (holding that arrest for

violation of a “peep show” local ordinance did not violate the Fourth

Amendment, even though officers had discretion under California law to

issue a citation in lieu of arrest); Fisher v. Washington Metro. Area Tran-

sit Auth., 690 F.2d 1133, 1137, 1139 & n.6 (CA4 1982) (holding that ar-

rest based on probable cause for fine-only offense of eating on a train did

not violate Fourth Amendment constitutional standards, even though it

may not have been authorized by Virginia’s criminal procedure statutes).

Although decided two months after Ms. Atwater’s arrest, the Seventh Cir-

cuit’s decision in Ricci v. Arlington Heights bears mention because it con-

firms the circuits’ consistency on this issue. 116 F.3d 288, 292 (CA7

1997) (holding that an arrest and one-hour detention for processing pa-

perwork did not violate the Fourth Amendment where there was probable

24

Ill. THIS CASE DOES NOT PRESENT THE

ISSUES OF RACIAL PROFILING OR PRE-

TEXTUAL ARRESTS TO CONDUCT WAR-

RANTLESS CAR SEARCHES.

Atwater and her supporting amici set forth a parade of hor-

ribles they fear will ensue if arrests for misdemeanor traffic

violations are not prohibited. In particular, they fear that

these arrests will lead to racial profiling—i.e., targeting of

minority traffic offenders whom officers may be more likely

to associate with drug activity. In addition, Atwater and her

amici proclaim that permitting arrests for traffic offenses will

eviscerate the limitations on traffic-related searches this Court

implemented in Knowles v. lowa. Neither allegation has

bearing on this case for two reasons. First, Atwater has not

alleged that she was unconstitutionally searched on racial or

otherwise pretextual grounds. These issues, therefore, are not

presented in this case. Second, a pretextual search does not

violate the Fourth Amendment if it occurs incident to an ar-

rest that is supported by probable cause.

cause to believe arrestee violated a local ordinance creating the civil, fine-

only offense of operating a business without a license), cert. granted, 522

U.S. 1038, and cert. dismissed as improvidently granted, 523 U.S. 613

(1998); see also Vargas-Badillo v. Diaz-Torres, 114 F.3d 3,6 (CAI 1997)

(holding that the only Fourth Amendment right implicated by a misde-

meanor arrest for drunk driving was the right not to be arrested without

probable cause).

Given that there was (1) controlling federal precedent in Officer

Turek’s jurisdiction, (2) “a consensus of cases of persuasive authority in

other circuits,” and (3) strong signals from the Court that misdemeanor

traffic-offense arrests are lawful if supported by probable cause, a reason-

able officer in Officer Turek’s position could have believed that arresting

Ms. Atwater would not offend the Constitution. Wilson, 526 U.S., at 617.

As such, Officer Turek is entitled to qualified immunity even if the Court

- determines that he violated Ms. Atwater’s Fourth Amendment rights. /d.,

at 614, 617.

25

A. Racial Profiling Is Governed by the Equal

Protection Clause of the Fourteenth Amend-

ment, Not the Fourth Amendment’s Proscrip-

tion Against Unreasonable Searches and Sei-

zures.

The State amici condemn racial profiling and firmly agree

that “the Constitution prohibits selective enforcement of the

law based on considerations such as race.” Whren, 517 U.S.,

at 813. However, the-Court has made clear that the proper

constitutienal basis for raising claims of selective traffic en-

forcement is the Equal Protection Clause of the Fourteenth

Amendment, not the Fourth Amendment. /d., at 813. The

type of subjective intent at issue in sacial profiling has no

- place in Fourth Amendment “reasonableness” analysis—

which entails an objective inquiry centered on probable

cause. See id., at 814-16.

Thus, even assuming there ‘were allegations. of. facially ,se-

lective traffic enforcement at issue in this case—which there

are not—there would be no impact on the reasonableness of

Ms. Atwater’s arrest. Because the arrest was supported by

probable cause, no violation of Ms. Atwater’s Fourth

Amendment rights occurred.

Moreover, the fact that no racial profiling occurred in this

case makes it an inappropriate vehicle for exploring this

complex issue. See Robinson, 414 U.S., at 221 n.1 (dismiss-—

ing allegations of a pretextual arrest-related search that was

incident to a lawful traffic arrest effected pursuant io police

department procedures, and “leav[ing] for another day ques-

tions which would arise on facts different from these”); cf.

Berkemer, 468 U.S., at 434 n.21 (deferring, to a more factu-

ally appropriate case, consideration of Miranda-related ques-

tions not necessary to resolve-the actual issue before the

Court).

26

B. Permitting Arrests for Traffic Offenses Does

Not Conflict with Knowles v. lowa.

Atwater and several amici proclaim that arrests for traffic

violations create carte blanche for officers to search traffic of-

fenders in a manner that conflicts with Knowles v. lowa. No

such conflict exists.

Knowles addressed the constitutionality of a search in con-

nection with a traffic offense for which the driver was cited

but not actually arrested—in other words, “a search incident

to citation.” 525 U.S., at 115. In analyzing the consti-

- tutionality of the search, the Court noted that lowa law per-

mitted officers to either arrest or issue citations to traffic of-

fenders. See id. In addition, a subdivision of the lowa cita-

tion statue permitted officers to conduct a search even if they

chose not to make an arrest. See id.

The Court concluded that although the “search incident to

citation” was authorized under state law, it violated the

Fourth Amendment. When an officer exercises his discretion

under Iowa law to issue a citation rather than effect an arrest,

he cannot then search incident to the citation. See id., at 117-

18. This is because the safety concerns and other rationales

underlying a search incident to custodial arrest are not present

when an officer merely issues a citation. /d., at 117. The fact

of arrest, and not the “grounds for arrest,” determines the

permissibility of the search. /d.

Nothing about an arrest for a misdemeanor traffic offense

conflicts with Knowles. Knowles did not suggest that arrests

for such offenses are prohibited by the Fourth Amendment.

To the contrary, Knowles indicated that arrests were neces-

sary in order to justify searches in connection with traffic vio-

lations. /d.

The Court’s unanimous decision in Whren demonstrates

that even a pretextual traffic arrest does not offend the Fourth

Amendment if the arresting officer has probable cause to be-

27

lieve a traffic offense has been committed. 517 U.S., at 811-

13 (dispelling notions that “ulterior motives can invalidate

police conduct that is justifiable on the basis of probable

cause to believe that a violation of law occurred”); see also

Robbins, 453 U.S., at 452 (Stevens, J., dissenting) (stating

that a driver arrested for a traffic offense cannot make any

“constitutional objection” to being taken into custody as justi-

fication for a search of the entire interior of the vehicle); cf.

Graham, 490 U.S., at 397 (noting, within the context of an

excessive force claim, that “{a}n officer’s evil intentions will

not make a Fourth Amendment violation out of an objectively

reasonable use of force”). Put succinctly, “the Fourth

Amendment’s concern with ‘reasonableness’ allows certain

actions to be taken in certain circumstances, whatever the

subjective intent.” Whren, 716 U.S., at 814.

Although Whren involved an allegedly pretextual stop, as

opposed to a pretextual arrest, its reasoning applies equally in

the arrest context. See id., at 811-14 (citing Robinson, 414

U.S., at 221 n.1, for the proposition that a lawful traffic-

violation arrest “would not be rendered invalid by the fact

that it was ‘a mere pretext to search for narcotics’”). If any-

thing, there should be fewer concerns about pretextual arrests,

because an arrest requires more police accountability than a

stop. A patrolling officer can freely stop individuals for traf-

fic offenses, and if the officer opts not to arrest or cite the of-

fender, there is likely to be no formal documentation of the

incident. By contrast, an officer who opts to make a custodial

arrest must take the offender in for processing, and the officer

must complete and sign supporting documentation. It is far

less likely that officers will commit arrest abuses, because

they are so readily traceable.

Even some of Atwater’s supporting amici acknowledge

that the documentation procedures associated with an arrest

would make an officer’s abuse of arrest discretion detectable

and redressable by the officer’s police chief. See Inst. Crim.

28

Just. Br. 15-17 & n.11. But these amici simply do not trust

police departments to keep their officers in line. See id., at 16

n.11; cf. Nat’l Ass’n Crim. Def. Laws. Br. at 3, 11-12; ACLU

Br. at 8.

Because Atwater and her supporting amici expect police to

abuse their authority to search incident to arrest, they ask this

Court to make a preemptive strike by prohibiting arrests for

“common” crimes such as traffic offenses. But anticipatory

fear of hypothetical abuses is not a legitimate basis to cate-

gorically circumscribe officer discretion and strip states of

their traditional sovereign authority to regulate the processing

of criminal offenders within their borders. Nor is it grounds

to constitutionalize a hierarchy of offenses, with only some

worthy of enforcement through arrest. The Court already

unanimously rejected a similar argument in Whren. 517 U.S.,

at 818-19.

If concerns exist that pretextual arrests will be used to jus-

tify vehicle searches, those concerns should be addressed in a

case that actually presents the issue. Ms. Atwater does not

challenge any search incident to her arrest. Nor does she al-

lege that she was pretextually arrested for the purpose of

searching her vehicle. The Court should decline to speculate

about hypothetical police abuses that are not at issue in this

case. Cf. Robinson, 414 U.S., at 221 n.1; Berkemer, 468

U.S., at 434 n.21.

CONCLUSION

For these reasons, amici respectfully request that the

Court affirm the judgment of the Fifth Circuit.

November 1, 2000

29

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

GREGORY S. COLEMAN

Solicitor General

Counsel of Record

LISA R. ESKOW

Assistant Solicitor General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

Counsel for Amici