OCTOBER TERM, 2000
Syllabus
ATWATER ET AL.
v. CITY OF LAGO VISTA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 99-1408. Argued December 4, 2000-Decided April 24, 2001
Texas law makes it a misdemeanor, punishable only by a fine,
either for a front-seat passenger in a car equipped with safety
belts not to wear one or for the driver to fail to secure any small
child riding in front. The warrantless arrest of anyone violating
these provisions is expressly authorized by statute, but the police
may issue citations in lieu of arrest. Petitioner Atwater drove her
truck in Lago Vista, Texas, with her small children in the front
seat. None of them was wearing a seatbelt. Respondent Turek, then a
Lago Vista policeman, observed the seatbelt violations, pulled
Atwater over, verbally berated her, handcuffed her, placed her in
his squad car, and drove her to the local police station, where she
was made to remove her shoes, jewelry, and eyeglasses, and empty
her pockets. Officers took her "mug shot" and placed her, alone, in
a jail cell for about an hour, after which she was taken before a
magistrate and released on bond. She was charged with, among other
things, violating the seatbelt law. She pleaded no contest to the
seatbelt misdemeanors and paid a $50 fine. She and her husband
(collectively Atwater) filed suit under 42 U. S. C. § 1983,
alleging,
inter alia, that the actions of respondents
(collectively City) had violated her Fourth Amendment right to be
free from unreasonable seizure. Given her 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 summary judgment. Sitting en banc, the Fifth
Circuit affirmed. Relying on
Whren v.
United States,
517 U. S. 806,
817-818, the court observed that, although the Fourth Amendment
generally requires a balancing of individual and governmental
interests, the result is rarely in doubt where an arrest is based
on probable cause. Because no one disputed that Turek had probable
cause to arrest Atwater, and there was no evidence the arrest was
conducted in an extraordinary manner, unusually harmful to
Atwater's privacy interests, the court held the arrest not
unreasonable for Fourth Amendment purposes.
Held: The Fourth Amendment does not forbid a warrantless
arrest for a minor criminal offense, such as a misdemeanor seatbelt
violation punishable only by a fine. Pp. 326-355.
319
(a) In reading the Fourth Amendment, the Court is guided by the
traditional protections against unreasonable searches and seizures
afforded by the common law at the time of the framing.
E. g.,
Wilson v.
Arkansas, 514 U. S. 927, 931.
Atwater contends that founding-era common-law rules forbade
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 this argument is not
insubstantial, it ultimately fails. Pp. 326-345.
(1) Even after making some allowance for variations in the
prefounding English common-law usage of "breach of the peace," the
founding-era common-law rules were not nearly as clear as Atwater
claims. Pp. 327-335.
(i) A review of the relevant English decisions, as well as
English and colonial American legal treatises, legal dictionaries,
and procedure manuals, demonstrates disagreement, not unanimity,
with respect to officers' warrantless misdemeanor arrest power. On
one side, eminent authorities support Atwater's position that the
common law confined warrantless misdemeanor arrests to actual
breaches of the peace. See,
e. g., Queen v.
Tooley, 2
Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352. However, there is also
considerable evidence of a broader conception of common-law
misdemeanor arrest authority unlimited by any breach-of-the-peace
condition. See,
e. g., Holyday v.
Oxenbridge, Cro.
Car. 234, 79 Eng. Rep. 805, 805-806; 2 M. Hale, Pleas of the Crown
88. Thus, the Court is not convinced that Atwater's is the correct,
or even necessarily the better, reading of the common-law history.
Pp. 328-332.
(ii) A second, and equally serious, problem for Atwater's
historical argument is posed by various statutes enacted by
Parliament well before this Republic's founding that authorized
peace officers (and even private persons) to make warrantless
arrests for all sorts of relatively minor offenses unaccompanied by
violence, including, among others, nightwalking, unlawful game
playing, profane cursing, and negligent carriage driving. Pp.
333-335.
(2) 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. Pp. 336-345.
(i) 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 the Court's review of framing-era
documentary
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history has likewise failed to reveal any such design. Nor is
there 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 the 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 officers to
make warrantless misdemeanor arrests without a breach of the peace
condition. That the Fourth Amendment did not originally apply to
the States 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, and the fact that many of the original States with such
constitutional limitations continued to grant their officers broad
warrantless misdemeanor arrest authority undermines Atwater's
position. Given the early state practice, it is likewise
troublesome for Atwater's view that one year after the Fourth
Amendment's ratification, Congress gave federal marshals the same
powers to execute federal law as sheriffs had to execute state law.
Pp. 336-340.
(ii) Nor is Atwater's argument from tradition aided by 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.
E. g.,
Wilson, supra, at
933. The story, in fact, is to the contrary. First, what little
this Court has said about warrantless misdemeanor arrest authority
tends to cut against Atwater's argument. See,
e. g., United
States v.
Watson, 423 U. S. 411, 418.
Second, this is not a case in which early American courts embraced
an accepted common-law rule with anything approaching unanimity.
See
Wilson, supra, at 933. None of the 19th-century
state-court decisions cited by Atwater is ultimately availing. More
to the point are the numerous 19th-century state 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, legal commentary, for more than a century, 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 such arrests by at least some (if
not all) peace officers, as do a host of congressional enactments.
Pp. 340-345.
(b) The Court rejects Atwater's request to mint a new rule of
constitutionallaw forbidding custodial arrest, even upon probable
cause, when conviction could not ultimately carry any jail time and
the government
321
can show no compelling need for immediate detention. She reasons
that, when historical practice fails to speak conclusively to a
Fourth Amendment claim, courts must strike a current balance
between individual and societal interests by subjecting particular
contemporary circumstances to traditional standards of
reasonableness. See,
e. g., Wyoming v.
Houghton,
526 U. S. 295,
299-300. Atwater might well prevail under a rule derived
exclusively to address the uncontested facts of her case, since her
claim to live free of pointless indignity and confinement clearly
outweighs anything the City can raise against it specific to her.
However, the Court has 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. See,
e. g., United
States v.
Robinson, 414 U. S. 218, 234-235.
Complications arise the moment consideration is given 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. The assertion that these difficulties could be
alleviated simply by requiring police in doubt not to arrest is
unavailing because, first, such a tie breaker would in practice
amount to a constitutionally inappropriate
least-restrictive-alternative limitation, see,
e. g.,
Skinner v.
Railway Labor Executives' Assn., 489 U. S. 602, 629, n. 9,
and, second, whatever guidance the tie breaker might give would
come at the price of a systematic disincentive to arrest in
situations where even Atwater concedes arresting would serve an
important societal interest. That warrantless misdemeanor arrests
do not demand the constitutional attention Atwater seeks is
indicated by a number of factors, including that the law has never
jelled the way Atwater would have it; that anyone arrested without
formal process is entitled to a magistrate's review of probable
cause within 48 hours,
County of Riverside v.
McLaughlin, 500
U. S. 44, 55-58; that many jurisdictions have chosen to impose
more restrictive safeguards through statutes limiting warrantless
arrests for minor offenses; that it is in the police's interest to
limit such arrests, which carry costs too great to incur without
good reason; and that, 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 physical
interests,
e. g., Whren, 517 U. S., at 818. The upshot of
all these influences, combined with the good sense (and, failing
that, the political accountability) of most local lawmakers and
peace officers, is a dearth of horribles demanding redress. Thus,
the probable-cause standard applies to all arrests, without the
322
Syllabus
need to balance the interests and circumstances involved in
particular situations.
Dunaway v.
New York, 442 U. S. 200, 208. An
officer may arrest an individual without violating the Fourth
Amendment if there is probable cause to believe that the offender
has committed even a very minor criminal offense in the officer's
presence. Pp. 345-354.
(c) Atwater's arrest satisfied constitutional requirements. It
is undisputed that Turek had probable cause to believe that Atwater
committed a crime in his presence. Because she admits that neither
she nor her children were wearing seatbelts, Turek was authorized
(though not required) to make a custodial arrest without balancing
costs and benefits or determining whether 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. See
Whren, 517 U. S., at 818. Whether a search or seizure is
"extraordinary" turns, above all else, on the manner in which it is
executed. See,
e. g., ibid. Atwater's arrest and subsequent
booking, though surely humiliating, were no more harmful to her
interests than the normal custodial arrest. pp. 354-355.
195 F.3d
242, affirmed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
O'CONNOR, J., filed a dissenting opinion, in which STEVENS,
GINSBURG, and BREYER, JJ., joined,
post, p. 360.
Robert C.
DeCarli argued the cause for
petitioners. With him on the briefs were
Debra Irwin, Pamela
McGraw, and
Michael F. Sturley.
R. James George, Jr., argued the cause for
respondents.
With him on the brief were William W Krueger III and Joanna R.
Lippman.
Gregory S.
Coleman, Solicitor General of Texas,
argued the cause for the State of Texas et al. as
amici
curiae urging affirmance. With him on the brief were
John
Cornyn, Attorney General,
Andy Taylor, First Assistant
Attorney General, and
Lisa R. Eskow, Assistant Attorney
General, and the Attorneys General for their respective States as
follows:
Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane Brady
of Delaware, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of
Maryland, Joseph P. Mazurek of Montana,
323
W A. Drew Edmondson of Oklahoma, Charles M. Condon of South
Carolina, and Mark L. Earley of Virginia. *
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.
I A
In Texas, if a car is equipped with safety belts, a frontseat
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." §
545.413(d). Texas law expressly authorizes "[a]ny peace officer
[to] arrest without warrant a person found committing a violation"
of these seatbelt laws, § 543.001, although it permits police to
issue citations in lieu of arrest, §§ 543.003-543.005.
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
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Susan N Herman
and
Steven R. Shapiro; for Americans for Effective Law
Enforcement, Inc., by
Wayne W Schmidt, James P. Manak, and
Bernard J.
Farber; for the Cato Institute by
Timothy Lynch; for the Institute on Criminal Justice at the
University of Minnesota Law School et al. by
Richard S.
Frase; for the National Association of Criminal Defense
Lawyers et al. by
Wesley MacNeil Oliver and
Joshua
Dratel; and for the Texas Criminal Defense Lawyers Association
by
Greg Westfall and
William S.
Harris.
Briefs of amici curiae urging affirmance were filed for the
United States by Solicitor General Waxman, Assistant Attorney
General Robinson, Deputy Solicitor General Dreeben, and Patricia A.
Millett; for the National League of Cities et al. by Richard Ruda
and James I. Crowley; and for the Texas Police Chiefs Association
by James McLaughlin, Jr.
324
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 "yell[ed]" something to the effect of "[w]e've met
before" and "[y]ou're going to jail." App. 20.1 He then called for
backup and asked to see Atwater's driver's license and insurance
documentation, which state law required her to carry. Tex. Transp.
Code Ann. §§ 521.025, 601.053 (1999). 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." App.21.
Atwater asked to take her "frightened, upset, and crying"
children to a friend's house nearby, but Turek told her, "[y]ou're
not going anywhere."
Ibid. 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.
1 Turek had previously stopped Atwater for what he had thought
was a seatbelt violation, but had realized that Atwater's son,
although seated on the vehicle's armrest, was in fact belted in.
Atwater acknowledged that her son's seating position was unsafe,
and Turek issued a verbal warning. See Record 379.
325
B
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," App. 23, 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. No. A-97 CA 679 SS (WD
Tex., Feb. 13, 1999), App. to Pet. for Cert. 50a-63a. A panel of
the United States Court of Appeals for the Fifth Circuit reversed.
165 F.3d
380 (1999). It concluded that "an arrest for a first-time seat
belt offense" was an unreasonable seizure within the meaning of the
Fourth Amendment, id., at 387, and held that Turek was not entitled
to qualified immunity, id., at 389.
Sitting en banc, the Court of Appeals vacated the panel's
decision and affirmed the District Court's summary judgment for the
City.
195 F.3d
242 (CA5 1999). Relying on
Whren v.
United
States, 517 U. S.
806 (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.'" 195 F. 3d, at 244 (quoting
Whren, supra, at
817). Because "[n]either party dispute[d] 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 At-
326
water's privacy interests," the en banc court held that the
arrest was not unreasonable for Fourth Amendment purposes. 195 F.
3d, at 245-246 (quoting
Whren, supra, at 818).
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. 195 F.
3d, at 246-247. Judge Weiner likewise believed that "even with
probable cause, [an] officer must have a plausible, articulable
reason" for making a custodial arrest.
Id., at 251. 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."
Ibid.
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. 530 U. S. 1260 (2000).
We now affirm.
II
The Fourth Amendment safeguards "[t]he 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,"
Wilson v.
Arkansas, 514 U. S. 927, 931
(1995), since "[a]n 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,"
Payton v.
New York, 445 U. S. 573, 591 (1980)
(footnote omitted). Thus, the first step here is to assess
Atwater's claim that peace officers' authority to make warrantless
arrests for misdemeanors was
327
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." Brief for Petitioners 13. Although her
historical argument is by no means insubstantial, it ultimately
fails.
A
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," 2 the
"founding-era common-law rules" were not
2 The term apparently meant very different things in different
commonlaw contexts. For instance, under a statute enacted during
the reign of Charles II forbidding service of any warrant or other
court process on Sunday "except in cases of treason, felony or
breach of the peace," 29 Car. II, ch. 7, § 6, 8 Statutes at Large
414 (1676), "it was held that every indictable offense was
constructively a breach of the peace," Wilgus, Arrest Without a
Warrant, 22 Mich. L. Rev. 541, 574 (1924); see also
Ex parte
Whitchurch, 1 Atk. 56, 58, 26 Eng. Rep. 37, 39 (Ch. 1749). The
term carried a similarly broad meaning when employed to define the
jurisdiction of justices of the peace, see 2 W. Hawkins, Pleas of
the Crown, ch. 8, § 38, p. 60 (6th ed. 1787) (hereinafter Hawkins),
or to delimit the scope of parliamentary privilege, see
Williamson v.
United States, 207 U. S. 425, 435-446
(1908) (discussing common-law origins of Arrest Clause, U. S.
Const., Art. I, § 6, cl. 1).
Even when used to describe common-law arrest authority, the
term's precise import is not altogether clear. See J. Turner,
Kenny's Outlines of Criminal Law § 695, p. 537 (17th ed. 1958)
("Strangely enough what constitutes a 'breach of the peace' has not
been authoritatively laid down"); G. Williams, Arrest for Breach of
the Peace, 1954 Crim. L. Rev. 578, 578-579 ("The expression 'breach
of the peace' seems clearer than it is and there is a surprising
lack of authoritative definition of what one would suppose to be a
fundamental concept in criminal law"); Wilgus,
supra, at 573
("What constitutes a
breach of peace is not entirely
certain"). More often
328
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.
1
Atwater's historical argument begins with our quotation from
Halsbury in
Carroll v.
United States, 267 U. S. 132 (1925),
that
"'[i]n 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.'"
Id., at 157 (quoting 9 Halsbury, Laws of England § 612, p.
299 (1909)).
than not, when used in reference to common-law arrest power, the
term seemed to connote an element of violence. See,
e. g.,
M. Dalton, Country Justice, ch. 3, p. 9 (1727) ("The Breach of
thEe] Peace seemeth to be any injurious Force or Violence moved
against the Person of another, his Goods, Lands, or other
Possessions, whether by threatening words, or by furious Gesture,
or Force of the Body, or any other Force used
in terrorem").
On occasion, however, common-law commentators included in their
descriptions of breaches of the peace offenses that do not
necessarily involve violence or a threat thereof. See M. Hale, A
Methodical Summary of the Principal Matters Relating to the Pleas
of the Crown *134 (7th ed. 1773) ("Barretries"); 4 W. Blackstone,
Commentaries on the Laws of England 149 (1769) (hereinafter
Blackstone) ("[s]preading false news"). For purposes of this case,
it is unnecessary to reach a definitive resolution of the
uncertainty. As stated in the text, we will assume that as used in
the context of common-law arrest, the phrase "breach of the peace"
was understood narrowly, as entailing at least a threat of
violence.
329
But the isolated quotation tends to mislead. In
Carroll
itself we spoke of the common-law rule as only "sometimes
expressed" that way, 267 U. S., at 157, 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."
Id., at 156-157. 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, "[a]t 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." American Law
Institute, Code of Criminal Procedure, Commentary to § 21, p. 231
(1930).
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. See 1 J. Stephen, A History of the Criminal Law of England
193 (1883) ("The common law did not authorise the arrest of persons
guilty or suspected of misdemeanours, except in cases of an actual
breach of the peace either by an affray or by violence to an
individual"); G. Williams, Arrest for Breach of the Peace, 1954
Crim. L. Rev. 578, 578 ("Apart from arrest for felony ... , the
only power of arrest at common law is in respect of breach of the
peace"). See also
Queen v.
Tooley, 2 Ld. Raym. 1296,
1301, 92 Eng. Rep. 349, 352 (Q. B. 1710) ("[A] constable cannot
arrest, but when he sees an actual breach of the peace; and if the
affray be over, he cannot arrest").
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 warrant-
330
less misdemeanor arrest, not to its necessity. Blackstone
recognized that at common law "[t]he constable ... hath great
original and inherent authority with regard to arrests," but with
respect to nonfelony offenses said only that "[h]e may, without
warrant, arrest anyone for a breach of the peace, and carry him
before a justice of the peace." 4 Blackstone 289. 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 .... " 1 E. East, Pleas of the Crown § 71, p. 303
(1803).
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 1676,3 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." 2 M. Hale, Pleas of the Crown 88 (1736). 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. See The Compleat
Parish-Officer 11 (1744) ("[T]he Constable ... may for Breach of
the Peace, and some Misdemeanors less than Felony, imprison a
Man"); R. Burn, The Justice of the Peace 271 (1837) ("A
constable ... may at common law, for treason, felony, breach
of the peace, and some misdemeanors less than felony,
committed
in his view, apprehend the supposed offender without any
warrant" (italics in original)); 1 J. Chitty, A Practical
3 E. Foss, The Judges of England 113 (1864).
331
Treatise on the Criminal Law 20 (5th ed. 1847) ("[A constable]
may for treason, felony, breach of the peace, and some misdemeanors
less than felony, committed in his view, apprehend the supposed
offender
virtiute officii, without any warrant"); 1 W.
Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (officer "may
arrest any person who in his presence commits a misdemeanor or
breach of the peace").4
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.
Oxen bridge,
Cro. Car. 234, 79 Eng. Rep. 805 (1631), the Court of King's Bench
held that even a private person (and thus
a fortiori a peace
officer5) needed no warrant to arrest a "common cheater" whom he
discovered "cozen[ing] 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."
Id., at 805-806.
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,
4 Cf. E. Trotter, Seventeenth Century Life in the Country
Parish: With Special Reference to Local Government 88 (1919)
(describing broad authority of local constables and concluding
that, "[i]n short, the constable must apprehend, take charge of and
present for trial all persons who broke the laws, written or
unwritten, against the King's peace or against the statutes of the
realm ... ").
5 See 2 Hawkins, ch. 13, § 1, at 129 ("[W]herever any
[warrantless] arrest may be justified by a private person, in every
such case
a fortiori it may be justified by any [peace]
officer").
332
That the [warrantless] arrest of any other offenders ... for
offences in like manner scandalous and prejudicial to the public,
may be justified." 2 Hawkins, ch. 12, § 20, at 122. A number of
other common-law commentaries shared Hawkins's broad reading of
Holyday. See The Law of Arrests 205 (2d ed. 1753) (In light
of
Holyday, "an Arrest of an Offender ... for any Crime
prejudicial to the Publick, seems to be justifiable"); 1 T.
Cunningham, A New and Complete Law Dictionary (1771) (definition of
"arrest") (same); 1 G. Jacob, The Law Dictionary 129 (1st Am. ed.
1811) (same). See generally C. Greaves, Law of Arrest Without a
Warrant, in The Criminal Law Consolidation Acts, p. lxiii (1870)
("[Holyday] is rested upon the broad ground that 'it is
pro bono publico to stay such offenders,' which is equally
applicable to every case of misdemeanor ... ").6
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.
6 King v.
Wilkes, 2 Wils. K. B. 151,95 Eng. Rep.
737 (1763), and
Money v.
Leach, 3 Burr. 1742,97 Eng.
Rep. 1075 (K. B. 1765), two of the decisions arising out of the
controversy that generated
Wilkes v.
Wood, Lofft 1,
98 Eng. Rep. 489 (C. P. 1763), the "paradigm search and seizure
case for Americans" of the founding generation, Amar, Fourth
Amendment First Principles, 107 Harv. L. Rev. 757, 772 (1994), also
contain dicta suggesting a somewhat broader conception of
common-law arrest power than the one Atwater advances. See,
e.
g., King v.
Wilkes, supra, at 158, 95 Eng. Rep., at 741
("[I]f a crime be done in his sight," a justice of the peace "may
commit the criminal upon the spot");
Money v.
Leach,
supra, at 1766,97 Eng. Rep., at 1088 ("The common law, in many
cases, gives authority to arrest without a warrant; more
especially, where taken in the very act ... ").
333
2
A second, and equally serious, problem for Atwater's historical
argument is posed by the "divers Statutes," M. Dalton, Country
Justice, ch. 170, § 4, p. 582 (1727), 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 1827,7 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 .... " 13 Edw. I, ch. 4,
§§ 5-6, 1 Statutes at Large 232-233; see also 5 Edw. III, ch. 14, 1
Statutes at Large 448 (1331) (confirming and extending the powers
of watchmen). 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 .... " 2 Hawkins, ch. 13, § 6, at 130. 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." 4 Blackstone 289; see
77 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.
334
also 2 Hale, Pleas of the Crown, at 97 (describing broad arrest
powers of watchmen even over and above those conferred by the
Statute of Winchester).8 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," 13
Edw. I, ch. 4, §§ 3-4, 1 Statutes at Large 232-233, which Hawkins
understood "surely" to mean that officers could "lawfully arrest
and detain any such stranger[s]," 2 Hawkins, ch. 13, § 12, at
134.
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 game[s]" 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
8 Atwater seeks to distinguish the nightwalker statutes by
arguing that they "just reflected the reasonable notion that, in an
age before lighting, finding a person walking about in the dead of
night equaled probable suspicion that the person was a felon."
Reply Brief for Petitioners 7, n. 6. Hale indicates, however, that
nightwalkers and felons were not considered to be one and the same.
2 Hale, Pleas of the Crown, at 97 ("And such a watchman may
apprehend night-walkers and commit them to custody till the
morning, and also felons and persons suspected of felony").
335
or occupied." 33 Hen. VIII, ch. 9, §§ 11-16, 5 Statutes at Large
84-85 (1541). 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.
8 & 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes at Large 81-83
(1697). 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), 17 Geo. II, ch. 5, §§ 1-2, 5, 18 Statutes
at Large 144, 145-147 (1744); "horrid" persons who "profanely swear
or curse," 19 Geo. II, ch. 21, § 3, 18 Statutes at Large 445
(1746); 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," 30 Geo. II, ch. 22,
§§ 5, 13, 22 Statutes at Large 107-108, 111 (1757); and, most
significantly of all given the circumstances of the case before us,
negligent carriage drivers, 27 Geo. II, ch. 16, § 7, 21 Statutes at
Large 188 (1754). See generally S. Blackerby, The Justice of Peace:
His Companion, or a Summary of all the Acts of Parliament (1723)
(cataloguing statutes); S. Welch, An Essay on the Office of
Constable 19-22 (1758) (describing same).
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.
336
B
An examination of specifically American evidence is to the same
effect. N either 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.
1
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. See The
Complete Bill of Rights 223263 (N. Cogan ed. 1997) (collecting
original sources); 5 The Founders' Constitution 219-244 (P. Kurland
& R. Lerner eds. 1987) (same). 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. See,
e. g., L. Levy, Origins of the Bill of
Rights 150-179 (1999); T. Taylor, Two Studies in Constitutional
Interpretation 19-93 (1969); J. Landynski, Search and Seizure and
the Supreme Court 19-48 (1966); N. Lasson, History and Development
of the Fourth Amendment to the United States Constitution 79-105
(1937); Davies, Recovering the Original Fourth Amendment, 98 Mich.
L. Rev. 547 (1999); Amar, Fourth Amendment First Principles, 107
Harv. L. Rev. 757 (1994); Bradley, Constitutional Theory of the
Fourth Amendment, 38 DePaul L. Rev. 817 (1989). Indeed, to the
extent these modern histories address the issue, their conclusions
are to the contrary. See Landynski,
supra, at 45 (Fourth
Amendment arrest rules are "based on common-law practice," which
"dispensed with" a warrant requirement for misdemeanors "committed
in the presence of the arresting officer"); Davies,
supra,
at 551 ("[T]he Framers did not address
337
warrantless intrusions at all in the Fourth Amendment or in the
earlier state provisions; thus, they never anticipated that
'unreasonable' might be read as a standard for warrantless
intrusions").
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,
supra, at 333-335, regularly
authorized local peace officers to make warrantless misdemeanor
arrests without conditioning statutory authority on breach of the
peace. See,
e. g., First Laws of the State of Connecticut
214-215 (Cushing ed. 1982) (1784 compilation; exact date of Act
unknown) (authorizing warrantless arrests of "all Persons
unnecessarily travelling on the Sabbath or Lord's Day"); id., at 23
("such as are guilty of Drunkenness, profane Swearing,
Sabbath-breaking, also vagrant Persons [and] unseasonable
Night-walkers"); Digest of the Laws of the State of Georgia
1755-1800, p. 411 (H. Marbury & w. Crawford eds. 1802) (1762
Act) (breakers of the Sabbath laws); id., at 252 (1764 Act)
(persons "gaming ... in any licensed public house, or other house
selling liquors"); Colonial Laws of Massachusetts 139 (1889) (1646
Act) ("such as are overtaken with drink, swearing, Sabbath
breaking, Lying, vagrant persons, [and] night-walkers"); Laws of
the State of New Hampshire 549 (1800) (1799 Act) (persons
"travelling unnecessarily" on Sunday); Digest of the Laws of New
Jersey 1709-1838, pp. 585-586 (L. Elmer ed. 1838) (1799 Act)
("vagrants or vagabonds, common drunkards, common night-walkers,
and common prostitutes," as well as fortunetellers and other
practitioners of "crafty science"); Laws of the State of New York,
1777-1784, pp. 358-359 (1886) (1781 Act) ("hawker[s]" and
"pedlar[s]"); Earliest Printed Laws of New York, 1665-1693, p. 133
(J. Cushing ed. 1978) (Duke of York's Laws, 1665-1675) ("such as
are overtaken with Drink, Swearing, Sabbath breaking, Vagrant
persons or night walkers"); 3 Laws of the Commonwealth of
Pennsylvania 177-183
338
(1810) (1794 Act) (persons "profanely curs[ing]," drinking
excessively, "cock-fighting," or "play[ing] at cards, dice,
billiards, bowls, shuffle-boards, or any game of hazard or address,
for money").9
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-andannounce rule, 514
U. S., at 933; 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
9 Given these early colonial and state laws, the fact that a
number of States that ratified the Fourth Amendment generally
incorporated common-law principles into their own constitutions or
statutes, see
Wilson v.
Arkansas, 514 U. S. 927, 934
(1995), cannot aid Atwater here. Founding-era receptions of common
law, whether by state constitution or state statute, generally
provided that common-law rules were subject to statutory
alteration. See,
e. g., Del. Const., Art. 25 (1776), 2 W.
Swindler, Sources and Documents of United States Constitutions 203
(1973) (hereinafter Swindler) ("The common law of England ... shall
remain in force, unless [it] shall be altered by a future law of
the legislature"); N. J. Const., Art. XXII (1776), 6 Swindler 452
("[T]he common law of England ... shall still remain in force,
until [it] shall be altered by a future law of the Legislature");
N. Y. Const., Art. XXXV (1777), 7 Swindler 177-178 ("[S]uch parts
of the common law of England, and of the statute law of England and
Great Britain ... as together did form the law of [New York on
April 19, 1775,] shall be and continue the law of this State,
subject to such alterations and provisions as the legislature of
this State shall, from time to time, make concerning the same"); N.
C. Laws 1778, ch. V, in 1 First Laws of the State of North Carolina
353 (J. Cushing ed. 1984) ("[A]ll such ... Parts of the Common Law,
as were heretofore in Force and Use within this Territory ... which
have not been ... abrogated [or] repealed ... are hereby declared
to be in full Force within this State"); Ordinances of May 1776,
ch. 5, § 6, 9 Statutes at Large of Virginia 127 (W. Hening ed.
1821) ("[T]he common law of England ... shall be the rule of
decision, and shall be considered in full force, until the same
shall be altered by the legislative power of this colony").
339
Amendment did not originally apply to the States, see
Barron v.
Mayor of Baltimore, 7 Pet. 243 (1833), 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, see,
e. g., N. H. Const. of 1784, pt. I, Art.
XIX; Pa. Const. of 1776 (Declaration of Rights), Art. X, and the
fact that many of the original States with such
constitutionallimitations 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." Act of
May 2, 1792, ch. 28, § 9, 1 Stat. 265. 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.
United States
v.
Watson, 423
U. S. 411, 420 (1976).10
The record thus supports Justice Powell's observation that
"[t]here is no historical evidence that the Framers or proponents
of the Fourth Amendment, outspokenly opposed to the infamous
general warrants and writs of assistance, were at
10 Courts and commentators alike have read the 1792 Act as
conferring broad warrantless arrest authority on federal officers,
and, indeed, the Act's passage "so soon after the adoption of the
Fourth Amendment itself underscores the probability that the
constitutional provision was intended to restrict entirely
different practices."
Watson, 423 U. S., at 429 (Powell, J.,
concurring); see also Amar, Fourth Amendment First Principles, 107
Harv. L. Rev., at 764, and n. 14.
340
all concerned about warrantless arrests by local constables and
other peace officers."
Id., at 429 (concurring opinion). 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.
2
Nor does Atwater's argument 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.
Wilson, supra,
at 933; see also
Payton v.
New York, 445 U. S., at
590 (emphasizing "the clear consensus among the States adhering to
[a] well-settled common-law rule"). 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.ll See,
e. g.,
United States v.
Watson, supra, at 418 ("The cases
construing the Fourth Amendment thus reflect the ancient common-law
rule that a peace officer was permitted to arrest without a warrant
for a misdemeanor or felony
11 We need not, and thus do not, speculate whether the Fourth
Amendment entails an "in the presence" requirement for purposes of
misdemeanor arrests. Cf.
Welsh v.
Wisconsin, 466 U. S. 740, 756 (1984)
(White, J., dissenting) ("[T]he requirement that a misdemeanor must
have occurred in the officer's presence to justify a warrantless
arrest is not grounded in the Fourth Amendment").
341
committed in his presence ... ");
Carroll, 267 U. S., at
156157 ("The usual rule is that a police officer may arrest without
warrant one ... guilty of a misdemeanor if committed in his
presence");
Bad Elk v.
United States, 177 U. S. 529, 534, 536,
n. 1 (1900) (noting common-law pedigree of state statute permitting
warrantless arrest "[f]or a public offense committed or attempted
in [officer's] presence");
Kurtz v.
Moffitt, 115 U. S. 487, 499 (1885)
(common-law presence requirement); cf. also
Welsh v.
Wisconsin, 466
U. S. 740, 756 (1984) (White, J., dissenting) (" '[A]uthority
to arrest without a warrant in misdemeanor cases may be enlarged by
statute' ").
Second, and again in contrast with
Wilson, it is not the
case here that "[e]arly American courts ... embraced" an accepted
common-law rule with anything approaching unanimity.
Wilson
v.
Arkansas, 514 U. S., at 933. 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." Brief for Petitioners 17 (citing
Pow v.
Beckner, 3 Ind. 475, 478 (1852),
Commonwealth v.
Carey, 66 Mass. 246, 250 (1853), and
Robison v.
Miner, 68 Mich. 549, 556-559, 37 N. W. 21, 25 (1888)). But
none is ultimately availing.
Pow is fundamentally a
"presence" case; it stands only for the proposition, not at issue
here, see n. 11,
supra, 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." 3 Ind., at 478. The language Atwater
attributes to
Carey ("[E]ven 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
342
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"
(notwithstanding Massachusetts's own Fourth Amendment equivalent in
its State Constitution). 66 Mass., at 252.
Miner, the third
and final case upon which Atwater relies, was expressly overruled
just six years after it was decided. In
Burroughs v.
Eastman, 101 Mich. 419, 59 N. W. 817 (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:
"[T]he 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." 101 Mich., at 425, 59 N.
w., at 819 (collecting cases from,
e. g., Illinois, Indiana,
Massachusetts, Minnesota, Missouri, New Hampshire, New York, Ohio,
and Texas).
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. See,
e. g., Mayo v.
Wilson,
1 N. H. 53 (1817) (upholding statute authorizing warrantless
arrests of those unnecessarily traveling on Sunday against
challenge based on state due process and search-and-seizure
provisions);
Holcomb v.
Cornish, 8 Conn. 375 (1831)
(upholding statute permitting warrantless arrests for "drunkenness,
profane swearing, cursing or sabbath-breaking" against argument
that "[t]he power of a justice of the peace to arrest and detain a
citizen without complaint or warrant against him, is surely not
given by the
343
common law");
Jones v.
Root, 72 Mass. 435 (1856)
(rebuffing constitutional challenge to statute authorizing officers
"without a warrant [to] arrest any person or persons whom they may
find in the act of illegally selling, transporting, or distributing
intoxicating liquors");
Main v.
McCarty, 15 Ill. 441,
442 (1854) (concluding that a law expressly authorizing arrests for
city-ordinance violations was "not repugnant to the constitution or
the general provisions of law");
White v.
Kent, 11
Ohio St. 550 (1860) (upholding municipal ordinance permitting
warrantless arrest of any person found violating any city ordinance
or state law);
Davis v.
American Soc. for Prevention of
Cruelty to Animals, 75 N. Y. 362 (1878) (upholding statute
permitting warrantless arrest for misdemeanor violation of
cruelty-to-animals prohibition). See generally Wilgus, Arrest
Without a Warrant, 22 Mich. L. Rev. 541, 550, and n. 54 (1924)
(collecting cases and observing that "[t]he states may, by statute,
enlarge the common law right to arrest without a warrant, and have
quite generally done so or authorized municipalities to do so, as
for example, an officer may be authorized by statute or ordinance
to arrest without a warrant for various misdemeanors and violations
of ordinances, other than breaches of the peace, if committed in
his presence"); id., at 706, nn. 570, 571 (collecting cases); 1 J.
Bishop, New Criminal Procedure §§ 181, 183, pp. 101, n. 2, 103, n.
5 (4th ed. 1895) (same); W. Clark, Handbook of Criminal Procedure §
12, p. 50, n. 8 (2d ed. 1918) (same).
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. See,
e. g., E. Fisher, Laws of Arrest
§ 59, p. 130 (1967) ("[I]t is generally recognized today that the
common law authority to arrest without a warrant in misdemeanor
cases may be enlarged by
344
statute, and this has been done in many of the states"); Wilgus,
supra, at 705-706 ("Statutes and municipal charters have
quite generally authorized an officer to arrest for any misdemeanor
whether a breach of the peace or not, without a warrant, if
committed in the officer's presence. Such statutes are valid"
(footnote omitted)); Clark,
supra, § 12, at 50 ("In most, if
not all, the states there are statutes and city ordinances, which
are clearly valid, authorizing officers to arrest for certain
misdemeanors without a warrant, when committed in their presence");
J. Beale, Criminal Pleading and Practice § 21, p. 20, and n. 7
(1899) ("By statute the power of peace officers to arrest without a
warrant is often extended to all misdemeanors committed in their
presence." "Such a statute is constitutional"); 1 Bishop,
supra, § 183, at 103 ("[T]he power of arrest extends,
possibly, to any indictable wrong in [an officer's] presence ....
And statutes and ordinances widely permit these arrests for
violations of municipal by-laws"); J. Bassett, Criminal Pleading
and Practice § 89, p. 104 (2d ed. 1885) ("[A]s to the lesser
misdemeanors, except breaches of the peace, the power extends only
so far as some statute gives it"). But cf. H. Vorhees, Law of
Arrest § 131, pp. 78-79 (1904) (acknowledging that "by authority of
statute, city charter, or ordinance, [an officer] may arrest
without a warrant, one who ... commits a misdemeanor other than a
breach of the peace," but suggesting that courts look with
"disfavor" on such legislative enactments "as interfering with the
constitutional liberties of the subject").
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,12 as do a host of congressional enactments.13 The
American Law Institute
12 See Appendix,
infra.
13 See,
e. g., 18 U. S. C. § 3052 (Federal Bureau of
Investigation agents authorized to "make arrests without warrant
for any offense against the United States committed in their
presence"); § 3053 (same, for United
345
has long endorsed the validity of such legislation, see American
Law Institute, Code of Criminal Procedure § 21(a), p. 28 (1930);
American Law Institute, Model Code of PreArraignment Procedure §
120.1(1)(c), p. 13 (1975), and the consensus, as stated in the
current literature, is that statutes "remov[ing] the breach of the
peace limitation and thereby permit[ting] arrest without warrant
for
any misdemeanor committed in the arresting officer's
presence" have" 'never been successfully challenged and stan[d] as
the law of the land.'" 3 W. LaFave, Search and Seizure § 5.1(b),
pp. 13-14, and n. 76 (1996) (quoting
Higbee v.
San
Diego, 911 F.2d
377, 379 (CA9 1990)) (emphasis in original; footnote omitted).
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."
County of Riverside v.
McLaughlin, 500 U. S. 44, 60 (1991)
(SCALIA, J., dissenting).
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.14 Instead, she asks us to mint a new
States marshals and deputies); § 3056(c)(I)(C) (same, for Secret
Service agents); § 3061(a)(2) (same, for postal inspectors); §
3063(a)(3) (same, for Environmental Protection Agency officers); 19
U. S. C. § 1589a(3) (same, for customs officers); 21 U. S. C. §
878(a)(3) (same, for Drug Enforcement Administration agents); 25 U.
S. C. § 2803(3)(A) (same, for Bureau of Indian Mfairs
officers).
14 And, indeed, the dissent chooses not to deal with history at
all. See
post, p. 360 (opinion of O'CONNOR, J.). As is no
doubt clear from the text, the historical record is not nearly as
murky as the dissent suggests. See,
e. g.,
supra, at
333-335 (parliamentary statutes clearly authorizing warrantless
arrests for misdemeanor-level offenses), 337-338 (colonial and
founding-era state statutes clearly authorizing same). History,
moreover, is not just "one of the tools" relevant to a Fourth
Amendment inquiry,
post, at 361. JUSTICE O'CONNOR herself
has observed that courts must
346
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. See
Wyoming v.
Houghton, 526 U. S. 295, 299-300
(1999);
Vernonia School Dist. J,7J v.
Acton, 515 U. S. 646, 652-653
(1995). 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.
15
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
be "reluctant ... to conclude that the Fourth Amendment
proscribes a practice that was accepted at the time of adoption of
the Bill of Rights and has continued to receive the support of many
state legislatures,"
Tennessee v.
Garner, 471 U. S. 1, 26 (1985)
(dissenting opinion), as the practice of making warrantless
misdemeanor arrests surely was and has, see
supra, at
337-345. Because here the dissent "c1aim[s] that [a] practic[e]
accepted when the Fourth Amendment was adopted [is] now
constitutionally impermissible," the dissent bears the "heavy
burden" of justifying a departure from the historical
understanding. 471 U. S., at 26.
15 Although it is unclear from Atwater's briefs whether the rule
she proposes would bar custodial arrests for fine-only offenses
even when made pursuant to a warrant, at oral argument Atwater's
counsel "concede[d] that if a warrant were obtained, this arrest
... would ... be reasonable." Tr. of Oral Arg. 5.
347
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. See,
e. g.,
United
States v.
Robinson, 414 U. S. 218, 234-235
(1973). 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. See
New
York v.
Belton, 453 U. S. 454, 458 (1981) (Fourth
Amendment rules" 'ought to be expressed in terms that are readily
applicable by the police in the context of the law enforcement
activities in which they are necessarily engaged'" and not"
'qualified by all sorts of ifs, ands, and buts' ").16
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
16 Terry v.
Ohio, 392 U. S. 1 (1968), upon
which the dissent relies, see
post, at 366, is not to the
contrary.
Terry certainly supports a more finely tuned
approach to the Fourth Amendment when police act without the
traditional justification that either a warrant (in the case of a
search) or probable cause (in the case of arrest) provides; but at
least in the absence of "extraordinary" circumstances,
Whren
v.
United States, 517 U. S. 806, 818
(1996), there is no comparable cause for finicking when police act
with such justification.
348
demonstrable threat of it (whether "minor crime" be defined as a
fine-only traffic offense, a fine-only offense more generally, or a
misdemeanor17). 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, see
Berkemer v.
McCarty, 468 U. S. 420, 431, n. 13
(1984) ("[O]fficers in the field frequently 'have neither the time
nor the competence to determine' the severity of the offense for
which they are considering arresting a person"), 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? 18 Is
the weight of the marijuana a gram above or a gram below
17 Compare,
e. g., Brief for Petitioners 46 ("fine-only")
with,
e. g., Tr. of Oral Arg. 11 (misdemeanors). Because the
difficulties attendant to any major crime-minor crime distinction
are largely the same, we treat them together.
18 See,
e. g.,
Welsh, 466 U. S., at 756 (first DUI
offense subject to maximum fine of $200; subsequent offense
punishable by one year's imprisonment);
Carroll v.
United
States, 267 U. S.
132, 154 (1925) (first offense of smuggling liquor subject to
maximum fine of $500; subsequent offense punishable by 90 days'
imprisonment); 21 U. S. C. §§ 844a(a), (c) (first offense for
possession of "personal use amount" of controlled substance subject
to maximum $10,000 fine; subsequent offense punishable by
imprisonment); Tex. Penal Code Ann. §§ 42.01, 49.02, 12.23, 12.43
(1994 and Supp. 2001) (first public drunkenness or disorderly
conduct offense subject to maximum $500 fine; third offense
punishable by 180 days' imprisonment).
349
the fine-only line? 19 Where conduct could implicate more than
one criminal prohibition, which one will the district attorney
ultimately decide to charge? 20 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." Brief for Petitioners 46 (internal
quotation marks omitted). (Were the line drawn at misdemeanors
generally, a comparable qualification would presumably apply.) 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." Tr. of Oral Arg. 16. 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?
19 See,
e. g., 21 U. S. C. §§ 844, 844a (possession of
"personal use amount" of a controlled substance subject to maximum
$10,000 fine; possession of larger amount punishable by one year's
imprisonment); Tex. Health & Safety Code Ann. § 481.121 (b)
(Supp. 2001) (possession of four ounces or less of marijuana a
misdemeanor; possession of more than four ounces a felony). See
generally National Survey of State Laws 151-188 (3d R. Leiter ed.
1999) (surveying state laws concerning drug possession).
20 For instance, the act of allowing a small child to stand
unrestrained in the front seat of a moving vehicle at least
arguably constitutes child endangerment, which under Texas law is a
state jail felony. Tex. Penal Code Ann. §§22.041(c), (f) (Supp.
2001). Cf. also 21 Am. Jur. 2d, Criminal Law § 28 (1998) ("[S]ome
statutory schemes permit courts in their discretion to term certain
offenses as felonies or as misdemeanors").
350
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.21 For all these reasons,
Atwater's various distinctions between permissible and
impermissible arrests for minor crimes strike us as "very
unsatisfactory line[sJ" to require police officers to draw on a
moment's notice.
Carroll
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,
New York v.
Belton, 453 U. S., at 458, generally thought inappropriate
in working out Fourth Amendment protection. See,
e. g.,
Skinner v.
Railway Labor Executives' Assn., 489 U. S. 602,
21 See
United States v.
Watson, 423 U. S. 411, 423-424
(1976) ("[T]he judgment of the Nation and Congress has ... long
been to authorize warrantless public arrests on probable cause
rather than to encumber criminal prosecutions with endless
litigation with respect to the existence of exigent circumstances,
whether it was practicable to get a warrant, whether the suspect
was about to flee, and the like").
351
629, n. 9 (1989) (collecting cases);
United States v.
MartinezFuerte, 428 U. S. 543, 557-558,
n. 12 (1976) ("The logic of such elaborate
less-restrictive-alternative arguments could raise insuperable
barriers to the exercise of virtually all searchand-seizure
powers"). 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
underenforcement could easily outweigh the costs to defendants of
being needlessly arrested and booked, as Atwater herself
acknowledges.22
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." Tr. of Oral Arg. 20. 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 atten-
22 The doctrine of qualified immunity is not the panacea the
dissent believes it to be. See
post, at 367-368. As the
dissent itself rightly acknowledges, even where personal liability
does not ultimately materialize, the mere "specter of liability"
may inhibit public officials in the discharge of their duties,
post, at 368, for even those officers with airtight
qualified immunity defenses are forced to incur "the expenses of
litigation" and to endure the "diversion of [their] official energy
from pressing public issues,"
Harlow v.
Fitzgerald,
457 U. S. 800,
814 (1982). Further, and somewhat perversely, the disincentive to
arrest produced by Atwater's opaque standard would be most
pronounced in the very situations in which police officers can
least afford to hesitate: when acting "on the spur (and in the
heat) of the moment,"
supra, at 347. We could not seriously
expect that when events were unfolding fast, an officer would be
able to tell with much confidence whether a suspect's conduct
qualified, or even "reasonably" qualified, under one of the
exceptions to Atwater's general no-arrests rule.
352
tion, 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,
County of
Riverside v.
McLaughlin, 500 U. S., at 55-58, and there
is no reason to think the procedure in this case atypical in giving
the suspect a prompt opportunity to request release, see Tex.
Transp. Code Ann. § 543.002 (1999) (persons arrested for traffic
offenses to be taken "immediately" before a magistrate). Many
jurisdictions, moreover, have chosen to impose more restrictive
safeguards through statutes limiting warrantless arrests for minor
offenses. See,
e. g., Ala. Code § 32-1-4 (1999); Cal. Veh.
Code Ann. § 40504 (West 2000); Ky. Rev. Stat. Ann. §§ 431.015(1),
(2) (Michie 1999); La. Rev. Stat. Ann. § 32:391 (West 1989); Md.
Transp. Code Ann. § 26-202(a)(2) (1999); S. D. Codified Laws §
32-33-2 (1998); Tenn. Code Ann. § 40-7-118(b)(1) (1997); Va. Code
Ann. § 46.2-936 (Supp. 2000). 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 pettyoffense arrests, which carry costs that
are simply too great to incur without good reason. See Brief for
Institute on Criminal Justice at the University of Minnesota Law
School and Eleven Leading Experts on Law Enforcement and
Corrections Administration and Policy as
Amici Curiae 11
(the use of custodial arrests for minor offenses "[a]ctually
[c]ontradicts [l]aw [e]nforcement [i]nterests"). 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
353
argument that an arrest, with or without a warrant, was
"conducted in an extraordinary manner, unusually harmful to [his]
privacy or even physical interests."
Whren v.
United
States, 517 U. S., at 818; see also
Graham v.
Connor, 490 U.
S. 386, 395-396 (1989) (excessive force actionable under §
1983).
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.23 We are sure that
there are others,24 but just as surely the country is not
confronting anything like an epidemic of unnecessary minor-offense
arrests.25 That fact caps the reasons for rejecting Atwater's
request
23 He referred to a newspaper account of a girl taken into
custody for eating french fries in a Washington, D. C., subway
station. Tr. of Oral Arg. 20-21; see also Washington Post, Nov. 16,
2000, p. Al (describing incident). Not surprisingly, given the
practical and political considerations discussed in text, the
Washington Metro Transit Police recently revised their
"zero-tolerance" policy to provide for citation in lieu of
custodial arrest of subway snackers. Washington Post, Feb. 27,
2001, at Bl.
24 One of Atwater's
amici described a handful in its
brief. Brief for American Civil Liberties Union et al. as
Amici
Curiae 7-8 (reporting arrests for littering, riding a bicycle
without a bell or gong, operating a business without a license, and
"walking as to create a hazard").
25 The dissent insists that a minor traffic infraction "may
often serve as an excuse" for harassment, and that fine-only
misdemeanor prohibitions "may be enforced" in an arbitrary manner.
Post, at 372. Thus, the dissent warns, the rule that we
recognize today "has potentially serious consequences for the
everyday lives of Americans" and "carries with it grave potential
for abuse."
Post, at 371, 372. But the dissent's own
language (e. g., "may," "potentially") betrays the speculative
nature of its claims. Noticeably absent from the parade of
horribles is any indication that the "potential for abuse" has ever
ripened into a reality. In fact, as we have pointed out in text,
there simply is no evidence of widespread abuse of minor-offense
arrest authority.
354
for the development of a new and distinct body of
constitutionallaw.
Accordingly, we confirm today what our prior cases have
intimated: the standard of probable cause "applie[s] to all
arrests, without the need to 'balance' the interests and
circumstances involved in particular situations."
Dunaway v.
New York, 442
U. S. 200, 208 (1979). 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.
IV
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."
Whren
v.
United States, 517 U. S., at 818. 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. See
ibid. (citing
Tennessee v.
Garner, 471 U. S. 1 (1985)
("seizure by means of deadly force"),
Wilson v.
Arkansas, 514
U. S. 927 (1995) ("unannounced entry into a home"),
Welsh v.
Wisconsin, 466 U. S. 740 (1984) ("entry into
a home without a warrant"), and
Winston v.
Lee,
470 U. S. 753
(1985) ("physical penetration of the body")). 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
355
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.
APPENDIX TO OPINION OF THE COURT
State Statutes Authorizing Warrantless Misdemeanor Arrests
Ala. Code § 15-10-3(a)(1) (Supp. 2000) (authorizing warrantless
arrest for any "public offense" committed in the presence of the
officer);
Alaska Stat. Ann. § 12.25.030(a)(1) (2000) ("for a crime
committed ... in the presence of the person making the
arrest");
Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (Supp. 2000) (for a
misdemeanor committed in the officer's presence);
Ark. Code Ann. § 16-81-106(b)(2)(a) (Supp. 1999) ("where a
public offense is committed in [the officer's] presence");
Cal. Penal Code Ann. § 836(a)(1) (West Supp. 2001) (where "the
person to be arrested has committed a public offense in the
officer's presence");
Colo. Rev. Stat. § 16-3-102(1)(b) (2000) (when "[a]ny crime has
been or is being committed" in the officer's presence); Conn. Gen.
Stat. § 54-lf(a) (Supp. 2000) (for "any offense" when arrestee is
taken in the act);
Del. Code Ann., Tit. 11, § 1904(a)(1) (1995) (for any
misdemeanor committed in the officer's presence);
356
Appendix to opinion of the Court
D. C. Code Ann. § 23-581(a)(1)(B) (1996) (where officer has
probable cause to believe a person has committed an offense in the
officer's presence);
Fla. Stat. § 901.15(1) (Supp. 2001) (for misdemeanor or
ordinance violation committed in presence of the officer);
Ga. Code Ann. § 17-4-20(a) (Supp. 1996) ("for a crime ... if the
offense is committed in [the] officer's presence");
Haw. Rev. Stat. § 803-5(a) (1999) ("when the officer has
probable cause to believe that [a] person has committed any
offense");
Idaho Code § 19-603(1) (1997) ("[f]or a public offense committed
or attempted in [officer's] presence");
Ill. Compo Stat., ch. 725, § 5/107-2(1)(c) (1992) (when the
officer "has reasonable grounds to believe that the person is
committing or has committed an offense");
Ind. Code § 35-33-1-1(a)(4) (Supp. 2000) (when the officer has
probable cause to believe a person "is committing or attempting to
commit a misdemeanor in the officer's presence");
Iowa Code § 804.7(1) (1994) ("[f]or a public offense committed
or attempted in the peace officer's presence");
Kan. Stat. Ann. § 22-2401(d) (1999 Cum. Supp.) (for "[a]ny
crime, except a traffic infraction or a cigarette or tobacco
infraction," committed in the officer's view);
Ky. Rev. Stat. Ann. § 431.005(1)(d) (Michie 1999) (for any
offense punishable by confinement committed in the officer's
presence); § 431.015(2) (Supp. 2000) (officer should generally
issue citation rather than arrest for certain minor
"violations");
La. Code Crim. Proc. Ann., Art. 213(3) (West 1991) (where the
officer "has reasonable cause to believe that the person to be
arrested has committed an offense");
Me. Rev. Stat. Ann., Tit. 15, § 704 (1980) ("persons found
violating any law of the State or any legal ordinance or bylaw
357
of a town"); Tit. 17-A, § 15(1)(B) (1983 and Supp. 2000) (for
misdemeanors committed in the officer's presence);
Md. Ann. Code, Art. 27, § 594B(a) (1996 and 2000 Supp.) (any
person who commits, or attempts to commit, "any felony or
misdemeanor" in the presence of an officer);
Mass. Gen. Laws, ch. 276, § 28 (1997) (for designated
misdemeanor offenses); ch. 272, § 60 (for littering offenses where
identity of arrestee is not known to officer);
Mich. Compo Laws Ann. § 764.15(1)(a) (West 2000) (for felony,
misdemeanor, or ordinance violation committed in the officer's
presence);
Minn. Stat. § 629.34(1)(c)(1) (Supp. 2001) ("when a public
offense has been committed or attempted in the officer's
presence");
Miss. Code Ann. § 99-3-7 (Supp. 1998) (for indictable offense
committed in presence of officer); § 45-3-21(1)(a)(vi) (by Highway
Safety Patrol Officers of "any person or persons committing or
attempting to commit any misdemeanor, felony or breach of the peace
within their presence or view");
Mo. Rev. Stat. § 479.110 (2000) (of "any person who commits an
offense in [the officer's] presence");
Mont. Code Ann. § 46-6-311(1) (1997) (if "the officer has
probable cause to believe that the person is committing an
offense");
Neb. Rev. Stat. § 29-404.02(2)(d) (1995) (when the officer has
probable cause to believe that the person has committed a
misdemeanor in his presence);
Nev. Rev. Stat. § 171.172 (1997) (in fresh pursuit of a person
who commits "any criminal offense" in the presence of the
officer);
N. H. Rev. Stat. Ann. § 614:7 (Supp. 2000) (in fresh pursuit of
any person who has committed "any criminal offense" in the presence
of the officer); § 594:10(I)(a) (upon probable
358
Appendix to opinion of the Court
cause for misdemeanor or violation committed in officer's
presence);
N. J. Stat. Ann. § 53:2-1 (West Supp. 2000) ("for violations of
the law committed in [the officers'] presence");
N. M. Stat. Ann. § 3-13-2(A)(4)(d) (1999) ("any person in the
act of violating the laws of the state or the ordinances of the
municipality"); § 30-16-16(B) (1994) (for falsely obtaining
services or accommodations); § 30-16-23 (of any person officer has
probable cause to believe has committed the crime of
shoplifting);
N. Y. Crim. Proc. Law §§ 140.10(1)(a) and (2) (McKinney Supp.
2001) (when officer has probable cause to believe any offense has
been committed in his presence and probable cause to believe person
to be arrested committed the offense);
N. C. Gen. Stat. § 15A-401(b) (1999) (where an officer has
probable cause to believe the person has committed "a criminal
offense" in the officer's presence and for misdemeanors out of the
officers presence in certain circumstances);
N. D. Cent. Code § 29-06-15(1)(a) (Supp. 1999) ("[f]or a public
offense, committed or attempted in the officer's presence"); Ohio
Rev. Code Ann. § 2935.03 (1997 and Supp. 2000) (of a person "found
violating ... a law of this state, an ordinance of a municipal
corporation, or a resolution of a township"); but see § 2935.26
(1997) (providing that notwithstanding any other provision of the
Revised Code, when a law enforcement officer is otherwise
authorized to arrest a person for the commission of a minor
misdemeanor, the officer shall not arrest the person, but shall
issue a citation, except in specified circumstances);
Okla. Stat., Tit. 22, § 196(1) (Supp. 2001) ("[f]or a public
offense, committed or attempted in [the officer's] presence"); Ore.
Rev. Stat. § 133.310(1) (1997) (upon probable cause for any felony,
Class A misdemeanor, or any other offense in the
359
officer's presence except "traffic infractions" and minor
"violations");
Pa. Stat. Ann., Tit. 71, § 252(a) (Purdon 1990) ("for all
violations of the law, including laws regulating the use of the
highways, which they may witness");
R. 1. Gen. Laws § 12-7-3 (2000) (for misdemeanors and petty
misdemeanors where "[t]he officer has reasonable grounds to believe
that [the] person cannot be arrested later, or [m]ay cause injury
to himself or herself or others or loss or damage to property
unless immediately arrested");
S. C. Code Ann. § 17-13-30 (1985) (of persons who, in the
presence of the officer, "violate any of the criminal laws of this
State if such arrest be made at the time of such violation of law
or immediately thereafter");
S. D. Codified Laws § 23A-3-2 (1998) ("[f]or a public offense,
other than a petty offense, committed or attempted in [the
officer's] presence");
Tenn. Code Ann. § 40-7-103(a)(1) (Supp. 2000) ("[f]or a public
offense committed or a breach of the peace threatened in the
officer's presence"); see also § 40-7-118(b)(1) (1997) (officer who
has arrested a person for the commission of a misdemeanor should
generally issue a citation to such arrested person to appear in
court in lieu of the continued custody and the taking of the
arrested person before a magistrate);
Tex. Code Crim. Proc. Ann., Art. 14.01 (Vernon 1977) ("for any
offense committed in his presence or within his view"); Utah Code
Ann. § 10-3-915 (1999) (for "any offense directly prohibited by the
laws of this state or by ordinance"); § 777-2 (for any public
offense committed in presence of officer);
Vt. Rule Crim. Proc. 3(a) (2000) (where officer has probable
cause to believe that "a crime" is committed in his presence); see
also Rule 3(c) (law enforcement officer acting without warrant who
is authorized to arrest a person for a misdemeanor should generally
issue a citation to appear before a judicial officer in lieu of
arrest);
360
Va. Code Ann. § 19.2-81 (2000) (of "any person who commits any
crime in the presence of [an] officer");
Wash. Rev. Code § 10.31.100 (Supp. 2001), as amended by 2000
Wash. Laws 119, § 4 (for misdemeanors committed in the presence of
the officer);
W. Va. Code § 62-10-9 (2000) ("for all violations of any of the
criminal laws of the United States, or of this state, when
committed in [an officer's] presence");
Wis. Stat. § 968.07(1)(d) (1998) (when "[t]here are reasonable
grounds to believe that the person is committing or has committed a
crime"); and
Wyo. Stat. Ann. § 7-2-102(b)(i) (1999) (when "[a]ny criminal
offense" is committed "in the officer's presence").
JUSTICE O'CONNOR, with whom JUSTICE STEVENS, JusTICE GINSBURG,
and JUSTICE BREYER join, dissenting.
The Fourth Amendment guarantees the right to be free from
"unreasonable searches and seizures." The Court recognizes that the
arrest of Gail Atwater was a "pointless indignity" that served no
discernible state interest,
ante, at 347, and yet holds that
her arrest was constitutionally permissible. Because the Court's
position is inconsistent with the explicit guarantee of the Fourth
Amendment, I dissent.
I
A full custodial arrest, such as the one to which Ms. Atwater
was subjected, is the quintessential seizure. See
Payton v.
New York, 445
U. S. 573, 585 (1980). When a full custodial arrest is effected
without a warrant, the plain language of the Fourth Amendment
requires that the arrest be reasonable. See ibid. It is beyond
cavil that "[t]he touchstone of our analysis under the Fourth
Amendment is always 'the reasonableness in all the circumstances of
the particular governmental invasion of a citizen's personal
security.'"
Pennsylvania v.
Mimms, 434 U. S. 106, 108-109
(1977)
(per curiam) (quoting
Terry v.
Ohio,
392 U. S. 1, 19
361
(1968)). See also,
e. g., United States v.
Ramirez, 523 U.
S. 65, 71 (1998);
Maryland v.
Wilson, 519 U. S. 408, 411
(1997);
Ohio v.
Robinette, 519 U. S. 33, 39 (1996);
Florida v.
Jimeno, 500 U. S. 248, 250
(1991);
United States v.
Chadwick, 433 U. S. 1,9(1977).
We have "often looked to the common law in evaluating the
reasonableness, for Fourth Amendment purposes, of police activity."
Tennessee v.
Garner, 471 U. S. 1, 13 (1985). But
history is just one of the tools we use in conducting the
reasonableness inquiry. See
id., at 13-19; see also
Wilson v.
Arkansas, 514 U. S. 927, 929
(1995);
Wyoming v.
Houghton, 526 U. S. 295, 307 (1999)
(BREYER, J., concurring). And when history is inconclusive, as the
majority amply demonstrates it is in this case, see
ante, at
326-345, we will "evaluate the search or seizure under traditional
standards of reasonableness by assessing, on the one hand, the
degree to which it intrudes upon an individual's privacy and, on
the other, the degree to which it is needed for the promotion of
legitimate governmental interests."
Wyoming v.
Houghton,
supra, at 300. See also,
e. g., Skinner v.
Railway
Labor Executives' Assn., 489 U. S. 602, 619
(1989);
Tennessee v.
Garner, supra, at 8;
Delaware v.
Prouse, 440 U. S. 648, 654
(1979); Pennsylvania v.
Mimms, supra, at 109. In
other words, in determining reasonableness, "[e]ach case is to be
decided on its own facts and circumstances."
Go-Bart Importing
Co. v.
United States, 282 U. S. 344, 357
(1931).
The majority gives a brief nod to this bedrock principle of our
Fourth Amendment jurisprudence, and even acknowledges that
"Atwater's claim to live free of pointless indignity and
confinement clearly outweighs anything the City can raise against
it specific to her case."
Ante, at 347. But instead of
remedying this imbalance, the majority allows itself to be swayed
by the worry that "every discretionary judgment in the field [will]
be converted into an occasion for constitutional review."
Ibid. It therefore mints a new rule that "[i]f an officer
has probable cause to believe that an indi-
362
vidual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest
the offender."
Ante, at 354. This rule is not only
unsupported by our precedent, but runs contrary to the principles
that lie at the core of the Fourth Amendment.
As the majority tacitly acknowledges, we have never considered
the precise question presented here, namely, the constitutionality
of a warrantless arrest for an offense punishable only by fine. Cf.
ibid. Indeed, on the rare occasions that Members of this
Court have contemplated such an arrest, they have indicated
disapproval. See,
e. g., Gustafson v.
Florida,
414 U. S. 260,
266-267 (1973) (Stewart, J., concurring) ("[A] persuasive claim
might have been made ... that the custodial arrest of the
petitioner for a minor traffic offense violated his rights under
the Fourth and Fourteenth Amendments. But no such claim has been
made");
United States v.
Robinson, 414 U. S. 218, 238, n. 2
(1973) (Powell, J., concurring) (the validity of a custodial arrest
for a minor traffic offense is not "self-evident").
To be sure, we have held that the existence of probable cause is
a necessary condition for an arrest. See
Dunaway v.
New
York, 442 U. S.
200, 213-214 (1979). And in the case of felonies punishable by
a term of imprisonment, we have held that the existence of probable
cause is also a sufficient condition for an arrest. See
United
States v.
Watson, 423 U. S. 411, 416-417
(1976). In
Watson, however, there was a clear and
consistently applied common law rule permitting warrantless felony
arrests. See id., at 417-422. Accordingly, our inquiry ended there
and we had no need to assess the reasonableness of such arrests by
weighing individual liberty interests against state interests. Cf.
Wyoming v.
Houghton, supra, at 299-300;
Tennessee v.
Garner, supra, at 26 (O'CONNOR, J.,
dissenting) (criticizing majority for disregarding undisputed
common law rule).
Here, however, we have no such luxury. The Court's thorough
exegesis makes it abundantly clear that warrantless
363
misdemeanor arrests were not the subject of a clear and
consistently applied rule at common law. See,
e. g., ante,
at 332 (finding "disagreement, not unanimity, among both the
common-law jurists and the text writers");
ante, at 335
(acknowledging that certain early English statutes serve only to
"riddle Atwater's supposed common-law rule with enough exceptions
to unsettle any contention [that there was a clear common-law rule
barring warrantless arrests for misdemeanors that were not breaches
of the peace]"). We therefore must engage in the balancing test
required by the Fourth Amendment. See
Wyoming v.
Houghton, supra, at 299-300. While probable cause is surely
a necessary condition for warrantless arrests for fine-only
offenses, see
Dunaway v.
New York, supra, at 213-214,
any realistic assessment of the interests implicated by such
arrests demonstrates that probable cause alone is not a sufficient
condition. See
infra, at 364-366.
Our decision in
Whren v.
United States, 517 U. S. 806 (1996), is
not to the contrary. The specific question presented there was
whether, in evaluating the Fourth Amendment reasonableness of a
traffic stop, the subjective intent of the police officer is a
relevant consideration.
Id., at 808, 814. We held that it is
not, and stated that "[t]he making of a traffic stop ... is
governed by the usual rule that probable cause to believe the law
has been broken 'outbalances' private interest in avoiding police
contact."
Id., at 818.
We of course did not have occasion in
Whren to consider
the constitutional preconditions for warrantless arrests for
fine-only offenses. Nor should our words be taken beyond their
context. There are significant qualitative differences between a
traffic stop and a full custodial arrest. While both are seizures
that fall within the ambit of the Fourth Amendment, the latter
entails a much greater intrusion on an individual's liberty and
privacy interests. As we have said, "[a] motorist's expectations,
when he sees a policeman's light flashing behind him, are that he
will be obliged to spend
364
a short period of time answering questions and waiting while the
officer checks his license and registration, that he may be given a
citation, but that in the end he most likely will be allowed to
continue on his way."
Berkemer v.
McCarty, 468 U. S.
420, 437 (1984). Thus, when there is probable cause to believe that
a person has violated a minor traffic law, there can be little
question that the state interest in law enforcement will justify
the relatively limited intrusion of a traffic stop. It is by no
means certain, however, that where the offense is punishable only
by fine, "probable cause to believe the law has been broken [will]
'outbalanc[eJ' private interest in avoiding" a full custodial
arrest.
Whren v.
United States, supra, at 818.
Justifying a full arrest by the same quantum of evidence that
justifies a traffic stop-even though the offender cannot ultimately
be imprisoned for her conduct-defies any sense of proportionality
and is in serious tension with the Fourth Amendment's proscription
of unreasonable seizures.
A custodial arrest exacts an obvious toll on an individual's
liberty and privacy, even when the period of custody is relatively
brief. The arrestee is subject to a full search of her person and
confiscation of her possessions.
United States v.
Robinson, supra. If the arrestee is the occupant of a car,
the entire passenger compartment of the car, including packages
therein, is subject to search as well. See
New York v.
Belton, 453 U.
S. 454 (1981). The arrestee may be detained for up to 48 hours
without having a magistrate determine whether there in fact was
probable cause for the arrest. See
County of Riverside v.
McLaughlin, 500
U. S. 44 (1991). Because people arrested for all types of
violent and nonviolent offenses may be housed together awaiting
such review, this detention period is potentially dangerous.
Rosazza & Cook, Jail Intake: Managing A Critical Function-Part
One:
Resources, 13 American Jails 35 (Mar.lApr. 1999). And once the
period of custody is over, the fact of the arrest is a per-
365
manent part of the public record. Cf.
Paul v.
Davis, 424 U.
S. 693 (1976).
We have said that "the penalty that may attach to any particular
offense seems to provide the clearest and most consistent
indication of the State's interest in arresting individuals
suspected of committing that offense."
Welsh v.
Wisconsin, 466
U. S. 740, 754, n. 14 (1984). If the State has decided that a
fine, and not imprisonment, is the appropriate punishment for an
offense, the State's interest in taking a person suspected of
committing that offense into custody is surely limited, at best.
This is not to say that the State will never have such an interest.
A full custodial arrest may on occasion vindicate legitimate state
interests, even if the crime is punishable only by fine. Arrest is
the surest way to abate criminal conduct. It may also allow the
police to verify the offender's identity and, if the offender poses
a flight risk, to ensure her appearance at trial. But when such
considerations are not present, a citation or summons may serve the
State's remaining law enforcement interests every bit as
effectively as an arrest. Cf. Lodging for State of Texas et al. as
Amici Curiae (Texas Department of Public Safety, Student
Handout, Traffic Law Enforcement 1 (1999)) ("Citations ....
Definition-a means of getting violators to court without physical
arrest. A citation should be used when it will serve this purpose
except when by issuing a citation and releasing the violator, the
safety of the public and/or the violator might be imperiled as in
the case of D. W. 1.").
Because a full custodial arrest is such a severe intrusion on an
individual's liberty, its reasonableness hinges on "the degree to
which it is needed for the promotion of legitimate governmental
interests."
Wyoming v.
Houghton, 526 U. S., at 300.
In light of the availability of citations to promote a State's
interests when a fine-only offense has been committed, I cannot
concur in a rule which deems a full custodial arrest to be
reasonable in every circumstance. Giving police
366
officers constitutional carte blanche to effect an arrest
whenever there is probable cause to believe a fine-only misdemeanor
has been committed is irreconcilable with the Fourth Amendment's
command that seizures be reasonable. Instead, I would require that
when there is probable cause to believe that a fine-only offense
has been committed, the police officer should issue a citation
unless the officer is "able to point to specific and articulable
facts which, taken together with rational inferences from those
facts, reasonably warrant [the additional] intrusion" of a full
custodial arrest.
Terry v.
Ohio, 392 U. S., at
21.
The majority insists that a bright-line rule focused on probable
cause is necessary to vindicate the State's interest in easily
administrable law enforcement rules. See
ante, at 347-351.
Probable cause itself, however, is not a model of precision. "The
quantum of information which constitutes probable cause-evidence
which would 'warrant a man of reasonable caution in the belief'
that a [crime] has been committed-must be measured by the facts of
the particular case."
Wong Sun v.
United States,
371 U. S. 471,
479 (1963) (citation omitted). The rule I propose-which merely
requires a legitimate reason for the decision to escalate the
seizure into a full custodial arrest-thus does not undermine an
otherwise "clear and simple" rule. Cf.
ante, at 347.
While clarity is certainly a value worthy of consideration in
our Fourth Amendment jurisprudence, it by no means trumps the
values of liberty and privacy at the heart of the Amendment's
protections. What the
Terry rule lacks in precision it makes
up for in fidelity to the Fourth Amendment's command of
reasonableness and sensitivity to the competing values protected by
that Amendment. Over the past 30 years, it appears that the
Terry rule has been workable and easily applied by officers
on the street.
At bottom, the majority offers two related reasons why a
bright-line rule is necessary: the fear that officers who arrest
for fine-only offenses will be subject to "personal [42 U. S.
C.]
367
§ 1983 liability for the misapplication of a constitutional
standard,"
ante, at 350, and the resulting "systematic
disincentive to arrest ... where ... arresting would serve an
important societal interest,"
ante, at 351. These concerns
are certainly valid, but they are more than adequately resolved by
the doctrine of qualified immunity.
Qualified immunity was created to shield government officials
from civil liability for the performance of discretionary functions
so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known. See
Harlow v.
Fitzgerald, 457 U. S. 800, 818
(1982). This doctrine is "the best attainable accommodation of
competing values," namely, the obligation to enforce constitutional
guarantees and the need to protect officials who are required to
exercise their discretion.
Id., at 814.
In
Anderson v.
Creighton, 483 U. S. 635 (1987), we
made clear that the standard of reasonableness for a search or
seizure under the Fourth Amendment is distinct from the standard of
reasonableness for qualified immunity purposes.
Id., at 641.
If a law enforcement officer "reasonably but mistakenly
conclude[sJ" that the constitutional predicate for a search or
seizure is present, he "should not be held personally liable."
Ibid.
This doctrine thus allays any concerns about liability or
disincentives to arrest. If, for example, an officer reasonably
thinks that a suspect poses a flight risk or might be a danger to
the community if released, cf.
ante, at 351, he may arrest
without fear of the legal consequences. Similarly, if an officer
reasonably concludes that a suspect may possess more than four
ounces of marijuana and thus might be guilty of a felony, cf.
ante, at 348-349, and n. 19,351, the officer will be
insulated from liability for arresting the suspect even if the
initial assessment turns out to be factually incorrect. As we have
said, "officials will not be liable for mere mistakes in judgment."
Butz v.
Economou, 438 U. S. 478, 507
368
(1978). Of course, even the specter of liability can entail
substantial social costs, such as inhibiting public officials in
the discharge of their duties. See,
e. g., Harlow v.
Fitzgerald, supra, at 814. We may not ignore the central
command of the Fourth Amendment, however, to avoid these costs.
II
The record in this case makes it abundantly clear that Ms.
Atwater's arrest was constitutionally unreasonable. Atwater
readily admits-as she did when Officer Turek pulled her over-that
she violated Texas' seatbelt law. Brief for Petitioners 2-3; Record
381, 384. While Turek was justified in stopping Atwater, see
Whren v.
United States, 517 U. S., at 819, neither
law nor reason supports his decision to arrest her instead of
simply giving her a citation. The officer's actions cannot sensibly
be viewed as a permissible means of balancing Atwater's Fourth
Amendment interests with the State's own legitimate interests.
There is no question that Officer Turek's actions severely
infringed Atwater's liberty and privacy. Turek was loud and
accusatory from the moment he approached Atwater's car. Atwater's
young children were terrified and hysterical. Yet when Atwater
asked Turek to lower his voice because he was scaring the children,
he responded by jabbing his finger in Atwater's face and saying,
"You're going to jaiL" Record 382,384. Having made the decision to
arrest, Turek did not inform Atwater of her right to remain silent.
Id., at 390, 704. He instead asked for her license and
insurance information.
Id., at 382. But cf.
Miranda
v.
Arizona, 384 U. S. 436 (1966).
Atwater asked if she could at least take her children to a
friend's house down the street before going to the police station.
Record 384. But Turek-who had just castigated Atwater for not
caring for her children-refused and said he would take the children
into custody as well.
Id., at 384, 427, 704-705. Only the
intervention of neighborhood
369
children who had witnessed the scene and summoned one of
Atwater's friends saved the children from being hauled to jail with
their mother.
Id., at 382, 385-386.
With the children gone, Officer Turek handcuffed Ms. Atwater
with her hands behind her back, placed her in the police car, and
drove her to the police station.
Id., at 386-387.
Ironically, Turek did not secure Atwater in a seatbelt for the
drive.
Id., at 386. At the station, Atwater was forced to
remove her shoes, relinquish her possessions, and wait in a holding
cell for about an hour.
Id., at 387, 706. A judge finally
informed Atwater of her rights and the charges against her, and
released her when she posted bond.
Id., at 387-388, 706.
Atwater returned to the scene of the arrest, only to find that her
car had been towed.
Id., at 389.
Ms. Atwater ultimately pleaded no contest to violating the
seatbelt law and was fined $50.
Id., at 403. Even though
that fine was the maximum penalty for her crime, Tex. Transp. Code
Ann. § 545.413(d) (1999), and even though Officer Turek has never
articulated any justification for his actions, the city contends
that arresting Atwater was constitutionally reasonable because it
advanced two legitimate interests: "the enforcement of child safety
laws and encouraging [Atwater] to appear for trial." Brief for
Respondents 15.
It is difficult to see how arresting Atwater served either of
these goals any more effectively than the issuance of a citation.
With respect to the goal of law enforcement generally, Atwater did
not pose a great danger to the community. She had been driving very
slowly-approximately 15 miles per hour-in broad daylight on a
residential street that had no other traffic. Record 380. Nor was
she a repeat offender; until that day, she had received one traffic
citation in her life-a ticket, more than 10 years earlier, for
failure to signal a lane change.
Id., at 378. Although
Officer Turek had stopped Atwater approximately three months
earlier because he thought that Atwater's son was not wearing a
seatbelt, id., at 420, Turek had been mistaken, id., at 379,
703.
370
Moreover, Atwater immediately accepted responsibility and
apologized for her conduct.
Id., at 381, 384, 420. Thus,
there was every indication that Atwater would have buckled herself
and her children in had she been cited and allowed to leave.
With respect to the related goal of child welfare, the decision
to arrest Atwater was nothing short of counterproductive. Atwater's
children witnessed Officer Turek yell at their mother and threaten
to take them all into custody. Ultimately, they were forced to
leave her behind with Turek, knowing that she was being taken to
jail. Understandably, the 3-year-old boy was "very, very, very
traumatized."
Id., at 393. After the incident, he had to see
a child psychologist regularly, who reported that the boy "felt
very guilty that he couldn't stop this horrible thing ... he was
powerless to help his mother or sister."
Id., at 396. Both
of Atwater's children are now terrified at the sight of any police
car.
Id., at 393, 395. According to Atwater, the arrest
"just never leaves us. It's a conversation we have every other day,
once a week, and it's-it raises its head constantly in our lives."
Id., at 395.
Citing Atwater surely would have served the children's interests
well. It would have taught Atwater to ensure that her children were
buckled up in the future. It also would have taught the children an
important lesson in accepting responsibility and obeying the law.
Arresting Atwater, though, taught the children an entirely
different lesson: that "the bad person could just as easily be the
policeman as it could be the most horrible person they could
imagine."
Ibid.
Respondents also contend that the arrest was necessary to ensure
Atwater's appearance in court. Atwater, however, was far from a
flight risk. A 16-year resident of Lago Vista, population 2,486,
Atwater was not likely to abscond. See Record 376; Texas State Data
Center, 1997 Total Population Estimates for Texas Places 15 (Sept.
1998). Although she
371
was unable to produce her driver's license because it had been
stolen, she gave Officer Turek her license number and address.
Record 386. In addition, Officer Turek knew from their previous
encounter that Atwater was a local resident.
The city's justifications fall far short of rationalizing the
extraordinary intrusion on Gail Atwater and her children. Measuring
"the degree to which [Atwater's custodial arrest was] needed for
the promotion of legitimate governmental interests," against "the
degree to which it intrud[ed] upon [her] privacy,"
Wyoming
v.
Houghton, 526 U. S., at 300, it can hardly be doubted
that Turek's actions were disproportionate to Atwater's crime. The
majority's assessment that "Atwater's claim to live free of
pointless indignity and confinement clearly outweighs anything the
City can raise against it specific to her case,"
ante, at
347, is quite correct. In my view, the Fourth Amendment inquiry
ends there.
III
The Court's error, however, does not merely affect the
disposition of this case. The
per se rule that the Court
creates has potentially serious consequences for the everyday lives
of Americans. A broad range of conduct falls into the category of
fine-only misdemeanors. In Texas alone, for example, disobeying any
sort of traffic warning sign is a misdemeanor punishable only by
fine, see Tex. Transp. Code Ann. § 472.022 (1999 and Supp.
2000-2001), as is failing to pay a highway toll, see § 284.070, and
driving with expired license plates, see § 502.407. Nor are
fine-only crimes limited to the traffic context. In several States,
for example, littering is a criminal offense punishable only by
fine. See,
e. g., Cal. Penal Code Ann. § 374.7 (West 1999);
Ga. Code Ann. § 167-43 (1996); Iowa Code §§ 321.369, 805.8(2)(af)
(Supp. 2001).
To be sure, such laws are valid and wise exercises of the
States' power to protect the public health and welfare. My concern
lies not with the decision to enact or enforce these
372
laws, but rather with the manner in which they may be enforced.
Under to day's holding, when a police officer has probable cause to
believe that a fine-only misdemeanor offense has occurred, that
officer may stop the suspect, issue a citation, and let the person
continue on her way. Cf.
Whren v.
United States, 517
U. S., at 806. Or, if a traffic violation, the officer may stop the
car, arrest the driver, see
ante, at 354, search the driver,
see
United States v.
Robinson, 414 U. S., at 235,
search the entire passenger compartment of the car including any
purse or package inside, see
New York v.
Belton, 453
U. S., at 460, and impound the car and inventory all of its
contents, see
Colorado v.
Bertine, 479 U. S. 367, 374
(1987); Florida v.
Wells, 495 U. S. 1, 4-5 (1990).
Although the Fourth Amendment expressly requires that the latter
course be a reasonable and proportional response to the
circumstances of the offense, the majority gives officers
unfettered discretion to choose that course without articulating a
single reason why such action is appropriate.
Such unbounded discretion carries with it grave potential for
abuse. The majority takes comfort in the lack of evidence of "an
epidemic of unnecessary minor-offense arrests."
Ante, at
353, and n. 25. But the relatively small number of published cases
dealing with such arrests proves little and should provide little
solace. Indeed, as the recent debate over racial profiling
demonstrates all too clearly, a relatively minor traffic infraction
may often serve as an excuse for stopping and harassing an
individual. After today, the arsenal available to any officer
extends to a full arrest and the searches permissible concomitant
to that arrest. An officer's subjective motivations for making a
traffic stop are not relevant considerations in determining the
reasonableness of the stop. See
Whren v.
United States,
supra, at 813. But it is precisely because these motivations
are beyond our purview that we must vigilantly ensure that
officers' posts top actions-which are properly within our
reach-comport with the Fourth Amendment's guarantee of
reasonableness.
373
***
The Court neglects the Fourth Amendment's express command in the
name of administrative ease. In so doing, it cloaks the pointless
indignity that Gail Atwater suffered with the mantle of
reasonableness. I respectfully dissent.
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