Atwater v. City of Lago Vista, 532 U.S. 318 (2001)


Fundamental Cases on the Fourth Amendment


Adam J. McKee

Justice Souter delivered the opinion of the Court.

The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.  We hold that it does not.

 A. In Texas, if a car is equipped with safety belts, a front seat passenger must wear one, Tex. Transp. Code Ann. § 545.413(a) (1999), and the driver must secure any small child riding in front, § 545.413(b).  Violation of either provision is “a misdemeanor punishable by a fine not less than $25 or more than $50.”  Texas law expressly authorizes “any peace officer to arrest without warrant a person found committing a violation” of these seatbelt laws, although it permits police to issue citations in lieu of arrest.

In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat.  None of them was wearing a seatbelt.  Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over.

According to Atwater’s complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and “yelled” something to the effect of “we’ve met before” and “you’re going to jail.”  He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry.  When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two-hundred times.”

Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “you’re not going anywhere.”  As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children.  Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets.  Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.

Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance.  She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were dismissed. 

Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court under 42 U. S. C. § 1983 against Turek and respondents City of Lago Vista and Chief of Police Frank Miller.  So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater’s Fourth Amendment “right to be free from unreasonable seizure,” and sought compensatory and punitive damages.

The City removed the suit to the United States District Court for the Western District of Texas.  Given Atwater’s admission that she had “violated the law” and the absence of any allegation “that she was harmed or detained in any way inconsistent with the law,” the District Court ruled the Fourth Amendment claim “meritless” and granted the City’s summary judgment motion.  A panel of the United States Court of Appeals for the Fifth Circuit reversed.  It concluded that “an arrest for a first-time seat belt offense” was an unreasonable seizure within the meaning of the Fourth Amendment, and held that Turek was not entitled to qualified immunity.

Sitting en banc, the Court of Appeals vacated the panel’s decision and affirmed the District Court’s summary judgment for the City.  Relying on Whren v. United States (1996), the en banc court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, where “an arrest is based on probable cause then with rare exceptions . . . the result of that balancing is not in doubt.”  Because “neither party disputed that Officer Turek had probable cause to arrest Atwater,” and because “there was no evidence in the record that Officer Turek conducted the arrest in an `extraordinary manner, unusually harmful’ to Atwater’s privacy interests,” the en banc court held that the arrest was not unreasonable for Fourth Amendment purposes.

Three judges issued dissenting opinions.  On the understanding that citation is the “usual procedure” in a traffic stop situation, Judge Reynaldo Garza thought Atwater’s arrest unreasonable, since there was no particular reason for taking her into custody.  Judge Weiner likewise believed that “even with probable cause, an officer must have a plausible, articulable reason” for making a custodial arrest.  Judge Dennis understood the Fourth Amendment to have incorporated an earlier, common-law prohibition on warrantless arrests for misdemeanors that do not amount to or involve a “breach of the peace.”

We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers’ authority to arrest without warrant for minor criminal offenses.  We now affirm. 

The Fourth Amendment safeguards “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In reading the Amendment, we are guided by “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing,” since “an examination of the common-law understanding of an officer’s authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable.”  Thus, the first step here is to assess Atwater’sclaim that peace officers’ authority to make warrantless arrests for misdemeanors was restricted at common law (whether “common law” is understood strictly as law judicially derived or, instead, as the whole body of law extant at the time of the framing).  Atwater’s specific contention is that “founding-era common-law rules” forbade peace officers to make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category she claims was then understood narrowly as covering only those nonfelony offenses “involving or tending toward violence.”  Although her historical argument is by no means insubstantial, it ultimately fails.

We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term “breach of the peace,” the “founding-era common-law rules” were not nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers’ warrantless misdemeanor arrest power.  Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace.

Atwater’shistorical argument begins with our quotation from Halsbury in Carroll v. United States (1925), that

“in cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.”

But the isolated quotation tends to mislead.  In Carroll itself we spoke of the common-law rule as only “sometimes expressed” that way and, indeed, in the very same paragraph, we conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the “usual rule” at common law was that “a police officer could arrest without warrant . . . one guilty of a misdemeanor if committed in his presence.”  Thus, what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform.  Rather, “at common law there is a difference of opinion among the authorities as to whether this right to arrest without a warrant extends to all misdemeanors.”

On one side of the divide there are certainly eminent authorities supporting Atwater’s position.  In addition to Lord Halsbury, quoted in Carroll, James Fitzjames Stephen and Glanville Williams both seemed to indicate that the common law confined warrantless misdemeanor arrests to actual breaches of the peace.

Sir William Blackstone and Sir Edward East might also be counted on Atwater’s side, although they spoke only to the sufficiency of breach of the peace as a condition to warrantless misdemeanor arrest, not to its necessity.  Blackstone recognized that at common law “the constable . . . hath great original and inherent authority with regard to arrests,” but with respect to nonfelony offenses said only that “he may, without warrant, arrest anyone for a breach of the peace, and carry him before a justice of the peace.”  Not long after the framing of the Fourth Amendment, East characterized peace officers’ common-law arrest power in much the same way: “A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray . . . .”

The great commentators were not unanimous, however, and there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition.  Sir Matthew Hale, Chief Justice of King’s Bench from 1671 to 1676, wrote in his History of the Pleas of the Crown that, by his “original and inherent power,” a constable could arrest without a warrant “for breach of the peace and some misdemeanors, less than felony.”  Hale’s view, posthumously published in 1736, reflected an understanding dating back at least 60 years before the appearance of his Pleas yet sufficiently authoritative to sustain a momentum extending well beyond the framing era in this country.

As will be seen later, the view of warrantless arrest authority as extending to at least “some misdemeanors” beyond breaches of the peace was undoubtedly informed by statutory provisions authorizing such arrests, but it reflected common law in the strict, judge-made sense as well, for such was the holding of at least one case reported before Hale had even become a judge but which, like Hale’s own commentary, continued to be cited well after the ratification of the Fourth Amendment.  In Holyday v. Oxenbridge, the Court of King’s Bench held that even a private person (and thus a fortiori a peace officer) needed no warrant to arrest a “common cheater” whom he discovered “cozening with false dice.”

The court expressly rejected the contention that warrantless arrests were improper “unless in felony,” and said instead that “there was good cause for staying” the gambler and, more broadly, that “it is pro bono publico to stay such offenders.”  In the edition nearest to the date of the Constitution’s framing, Sergeant William Hawkins’s widely read Treatise of the Pleas of the Crown generalized from Holyday that “from the reason of this case it seems to follow that the warrantless arrest of any other offenders . . . for offences in like manner scandalous and prejudicial to the public, may be justified.”  A number of other common-law commentaries shared Hawkins’s broad reading of Holyday.

We thus find disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together and summarize accepted practice.  Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater’s is the correct, or even necessarily the better, reading of the common-law history.

A second, and equally serious, problem for Atwater’shistorical argument is posed by the “divers Statutes” enacted by Parliament well before this Republic’s founding that authorized warrantless misdemeanor arrests without reference to violence or turmoil.  Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendment’s Framers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence.  The so-called “nightwalker” statutes are perhaps the most notable examples.  From the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827, night watchmen were authorized and charged “as . . . in Times past” to “watch the Town continually all Night, from the Sun-setting unto the Sun-rising” and were directed that “if any Stranger do pass by them, he shall be arrested until Morning . . . .”

Hawkins emphasized that the Statute of Winchester “was made” not in derogation but rather “in affirmance of the common law,” for “every private person may by the common law arrest any suspicious night-walker, and detain him till he give good account of himself . . . .”  And according to Blackstone, these watchmen had virtually limitless warrantless nighttime arrest power: “Watchmen, either those appointed by the statute of Winchester . . . or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning.”  The Statute of Winchester, moreover, empowered peace officers not only to deal with nightwalkers and other nighttime “offenders,” but periodically to “make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the Towns.”  On that score, the Statute provided that “if they do find any that have lodged or received any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Righttherein,” which Hawkins understood “surely” to mean that officers could “lawfully arrest and detain any such strangers.”

Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed.  On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not involving any breach of the peace.  One 16th-century statute, for instance, authorized peace officers to arrest persons playing “unlawful games” like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons “haunting” the “houses, places and alleys where such games shall be suspected to be holden, exercised, used or occupied.”

A 17th-century act empowered “any person . . . whatsoever to seize and detain any . . . hawker, pedlar, petty chapman, or other trading person” found selling without a license.  And 18th-century statutes authorized the warrantless arrest of “rogues, vagabonds, beggars, and other idle and disorderly persons” (defined broadly to include jugglers, palm readers, and unlicensed play actors); “horrid” persons who “profanely swear or curse,”; individuals obstructing “publick streets, lanes or open passages” with “pipes, butts, barrels, casks or other vessels” or an “empty cart, car, dray or other carriage” and, most significantly of all given the circumstances of the case before us, negligent carriage drivers.

The significance of these early English statutes lies not in proving that any common-law rule barring warrantless misdemeanor arrests that might have existed would have been subject to statutory override; the sovereign Parliament could of course have wiped away any judge-made rule.  The point is that the statutes riddle Atwater’s supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment’s Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence.

An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater’s position.

To begin with, Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers’ warrantless misdemeanor arrest authority to instances of actual breach of the peace, and our own review of the recent and respected compilations of framing-era documentary history has likewise failed to reveal any such design.  Nor have we found in any of the modern historical accounts of the Fourth Amendment’s adoption any substantial indication that the Framers intended such a restriction.  Indeed, to the extent these modern histories address the issue, their conclusions are to the contrary.

The evidence of actual practice also counsels against Atwater’s position.  During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, regularly authorized local peace officers to make warrantless misdemeanor arrests without conditioning statutory authority on breach of the peace.

What we have here, then, is just the opposite of what we had in Wilson v. Arkansas.  There, we emphasized that during the founding era a number of States had “enacted statutes specifically embracing” the common-law knock-and announce rule, here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater’s claims about the Fourth Amendment’s object.  Of course, the Fourth Amendment did not originally apply to the States, but that does not make state practice irrelevant in unearthing the Amendment’s original meaning.  A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment.  The fact that many of the original States with such constitutional limitations continued to grant their own peace officers broad warrantless misdemeanor arrest authority undermines Atwater’s contention that the founding generation meant to bar federal law enforcement officers from exercising the same authority.  Given the early state practice, it is likewise troublesome for Atwater’s view that just one year after the ratification of the Fourth Amendment, Congress vested federal marshals with “the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states.”  Thus, as we have said before in only slightly different circumstances, the Second Congress apparently “saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers” to make warrantless arrests.

The record thus supports Justice Powell’s observation that “there 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.”  We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.

Nor does Atwater’sargument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become “woven . . . into the fabric” of American law.  The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace.

First, there is no support for Atwater’s position in this Court’s cases (apart from the isolated sentence in Carroll, already explained).  Although the Court has not had much to say about warrantless misdemeanor arrest authority, what little we have said tends to cut against Atwater’s argument.  In discussing this authority, we have focused on the circumstance that an offense was committed in an officer’s presence, to the omission of any reference to a breach-of-the-peace limitation.  Second, and again in contrast with Wilson, it is not the case here that “early American courts . . . embraced” an accepted common-law rule with anything approaching unanimity.  To be sure, Atwater has cited several 19th-century decisions that, at least at first glance, might seem to support her contention that “warrantless misdemeanor arrest was unlawful when not for a breach of the peace.”  But none is ultimately availing.

Pow is fundamentally a “presence” case; it stands only for the proposition, not at issue here that a nonfelony arrest should be made while the offense is “in the officer’s view and . . . still continuing” and not subsequently “upon vague information communicated to him.”  The language Atwater attributes to Carey (“Even if he were a constable, he had no power to arrest for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offense”) is taken from the reporter’s summary of one of the party’s arguments, not from the opinion of the court.  While the court in Carey (through Chief Justice Shaw) said that “the old established rule of the common law” was that “a constable or other peace officer could not arrest one without a warrant . . . if such crime were not an offence amounting in law to felony,” it said just as clearly that the common-law rule could be “altered by the legislature” Miner, the third and final case upon which Atwater relies, was expressly overruled just six years after it was decided.

In Burroughs v. Eastman, (1894), the Supreme Court of Michigan held that the language from Miner upon which the plaintiff there (and presumably Atwater here) relied “should not be followed,” and then went on to offer the following: “The question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed.  Our attention has been called to no case, nor have we in our research found one, in which the contrary doctrine has been asserted.”

The reports may well contain early American cases more favorable to Atwater’s position than the ones she has herself invoked.  But more to the point, we think, are the numerous early- and mid-19th-century decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace.

Finally, both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes against constitutional attack are buttressed by legal commentary that, for more than a century now, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace.  Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace, as do a host of congressional enactments.  The American Law Institute has long endorsed the validity of such legislation, and the consensus, as stated in the current literature, is that statutes “removing the breach of the peace limitation and thereby permitting arrest without warrant for any misdemeanor committed in the arresting officer’s presence” have “never been successfully challenged and stand as the law of the land.”  This, therefore, simply is not a case in which the claimant can point to “a clear answer that existed in 1791 and has been generally adhered to by the traditions of our society ever since.” 

III. While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history.  Instead, she asks us to mint a new rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness.  Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention.

If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail.  She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation.  In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment.  Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.

But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.  Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made.  Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government’s side with an essential interest in readily administrable rules.

At first glance, Atwater’s argument may seem to respect the values of clarity and simplicity, so far as she claims that the Fourth Amendment generally forbids warrantless arrests for minor crimes not accompanied by violence or some demonstrable threat of it (whether “minor crime” be defined as a fine-only traffic offense, a fine-only offense more generally, or a misdemeanor).  But the claim is not ultimately so simple, nor could it be, for complications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted.

One line, she suggests, might be between “jailable” and “fine-only” offenses, between those for which conviction could result in commitment and those for which it could not.  The trouble with this distinction, of course, is that an officer on the street might not be able to tell.  It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest.  Is this the first offense or is the suspect a repeat offender?  Is the weight of the marijuana a gram above or a gram below the fine-only line?  Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge?  And so on.

But Atwater’s refinements would not end there.  She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where “necessary for enforcement of the traffic laws or when an offense would otherwise continue and pose a danger to others on the road.”  The proviso only compounds the difficulties.  Would, for instance, either exception apply to speeding?  At oral argument, Atwater’s counsel said that “it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving.”  But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the “offense would . . . continue” under Atwater’s rule?  And why, as a constitutional matter, should we assume that only reckless driving will “pose a danger to others on the road” while speeding will not?

There is no need for more examples to show that Atwater’s general rule and limiting proviso promise very little in the way of administrability.  It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should.  But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself.  It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other.  Atwater’s rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur.  For all these reasons, Atwater’s various distinctions between permissible and impermissible arrests for minor crimes strike us as “very unsatisfactory lines” to require police officers to draw on a moment’s notice.

One may ask, of course, why these difficulties may not be answered by a simple tie breaker for the police to follow in the field: if in doubt, do not arrest.  The first answer is that in practice the tie breaker would boil down to something akin to a least-restrictive-alternative limitation, which is itself one of those “ifs, ands, and buts” rules, generally thought inappropriate in working out Fourth Amendment protection.  Beyond that, whatever help the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes that arresting would serve an important societal interest.  An officer not quite sure that the drugs weighed enough to warrant jail time or not quite certain about a suspect’s risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial.  Multiplied many times over, the costs to society of such under enforcement could easily outweigh the costs to defendants of being needlessly arrested and booked, as Atwater herself acknowledges.

Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, “how bad the problem is out there.”  The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional attention,  and there is cause to think the answer is no.  So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review of probable cause within 48 hours, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release.  Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses.  It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle.

It is, in fact, only natural that States should resort to this sort of legislative regulation, for, as Atwater’s own amici emphasize, it is in the interest of the police to limit petty offense arrests, which carry costs that are simply too great to incur without good reason.  Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was “conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests.”

The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress.  Indeed, when Atwater’s counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one.  We are sure that there are others, but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests.  That fact caps the reasons for rejecting Atwater’s request for the development of a new and distinct body of constitutional law.

Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applies to all arrests, without the need to `balance’ the interests and circumstances involved in particular situations.”  If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.

Atwater’s arrest satisfied constitutional requirements.  There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence.  She admits that neither she nor her children were wearing seatbelts, as required by Tex. Transp. Code Ann. § 545.413 (1999).  Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater’s arrest was in some sense necessary.

Nor was the arrest made in an “extraordinary manner, unusually harmful to [her] privacy or . . . physical interests.”  As our citations in Whren make clear, the question whether a search or seizure is “extraordinary” turns, above all else, on the manner in which the search or seizure is executed.  Atwater’s arrest was surely “humiliating,” as she says in her brief, but it was no more “harmful to . . . privacy or . . . physical interests” than the normal custodial arrest.  She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond.  The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.

The Court of Appeals’s en banc judgment is affirmed. 

It is so ordered.


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