Atwater v. City of Lago Vista: Reasoning for the Ruleing
1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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532 U.S. 318 (2001)
ATWATER et al.
v.
CITY OF LAGO VISTA et al.
No. 99-1408.
Argued December 4, 2000 .
Decided April 24, 2001.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FO R THE FIFTH CIRCUIT
United States Supreme Court.
*320 *320 *321 *322 Souter, J., delivered the opinion of the Court, in w
hich Rehnquist, C. J., and Scalia, Kennedy, and Thomas,
JJ., joined. O'Connor, J., filed a dissenting opinion, i n which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 360. 320320321322
Robert C. DeCarli argued the cause for petitioners. With him on the bri efs were Debra Irwin, Pamela McGraw, and Michael F.
Sturley.
R. James George, Jr., argued the cause for respondents. With him on the brie f were William W. Krueger III and Joanna R.
Lippman.
Gregory S. Coleman, Solicitor General of Texas, argued the cause for the S tate 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.[*] 323
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 t hat 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. § 5 45.413(a) (1999),
and the driver must secure any small child riding in fron t, § 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 viol ation" 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
*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 h ad been stolen the day before, Turek said that he had "heard that
story two-hundred times." App. 21.
324
Atwater asked to take her "frightened, upset, and crying" childr en 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 t o take charge of the 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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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 eyeglasse s, 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 rele ased 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 seatbel t offenses and
paid a $50 fine; the other charges were dismissed.
*325 B 325
Atwater and her husband, petitioner Michael Haas, filed suit i n a Texas state court under 42 U. S. C. § 1983 against T urek 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 an d punitive damages.
The
City removed the suit to the United States District Court fo r the Western District of Texas. Given Atwater's admission that she
had "violated the law" and the absence of any allegatio n "that she was harmed or detained in any way inconsisten t with the law,"
the District Court ruled the Fourth Amendment claim "m eritless" and granted the
City's summary judgment motion. No. A-97 CA
679 SS (WD Tex., Feb. 13, 1999), App. to Pet. for Ce rt. 50a—63a. A panel of the United States Court of Ap peals for the Fifth
Circuit reversed. 165 F. 3d 380 (1999). It concluded tha t "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 qual ified immunity, id., at 389.
Sitting en banc, the Court of Appeals vacated the pane l's decision and affirmed the District Court's summary judg ment 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 ba lancing 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 Ture k had probable cause to arrest Atwater," and because
"there [was] no evidence in the record that Officer Tur ek conducted the arrest in an `extraordinary manner, unusu ally harmful' to
Atwater's *326 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 ).
326
Three judges issued dissenting opinions. On the understan ding that citation is the "usual procedure" in a traffic stop situation,
Judge Reynaldo Garza thought
Atwater's arrest unreasonable, since there was no particular reaso n for taking her into custody.
195 F. 3d, at 246-247. Judge Weiner likewise believed t hat "even with probable cause, [an] officer must have a p lausible,
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 wa rrantless arrests for misdemeanors that do not amount to or involve a
"breach of the peace." Ibid.
We granted certiorari to consider whether the Fourth A mendment, either by incorporating common-law restrictio ns on
misdemeanor arrests or otherwise, limits police officers' a uthority 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 p eople to be secure in their persons, houses, papers, and e ffects, against
unreasonable searches and seizures." In reading the Amend ment, we are guided by "the traditional protections against
unreasonable searches and seizures afforded by the common l aw 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, considerati on of what the Framers of the Amendment might have th ought to be
reasonable," Payton
v. New York, 445 U. S. 573, 591 (1980) (footnote omitted). Thus, the first step here is to a ssess Atwater's
claim that peace officers' authority to make warrantless a rrests for misdemeanors was
*327 restricted at common law (whether
"common law" is understood strictly as law judicially derive d 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 ru les" 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 cover ing
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only those nonfelony offenses "involving or tending towar d 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 commo n 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 *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 misdemeano r arrest power. Moreover, in the years leading up to American
independence, Parliament repeatedly extended express warr antless arrest authority to cover misdemeanor-level offenses not
amounting to or involving any violent breach of the peace .
328
1
Atwater's historical argument begins with our quotation from Ha lsbury 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 comm itted in his presence or there is reasonable ground
for supposing that a breach of peace is about to be comm itted or renewed in his presence.' " Id., at 157 (quoting 9
Halsbury, Laws of England § 612, p. 299 (1909)).
*329 But the isolated quotation tends to mislead. In Carroll itself we spoke of the common-law rule as only "sometime s
expressed" that way, 267
U. S. , at 157, and, indeed, in the very same paragraph, we conspicuous ly omitted any reference to a
breach-of-the-peace limitation in stating that the "usu al 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 opin ion among the authorities as to whether this right to arrest [without a warrant]
extends to all misdemeanors." American Law Institute, Co de of Criminal Procedure, Commentary to § 21, p. 231 (1930).
329
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 seem ed 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 arr est of persons guilty or suspected of misdemeanours, except i n cases of
an actual breach of the peace either by an affray or by vi olence 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 warrantless
*330 misdemeanor arrest, not to its necessity. Blackstone recogn ized 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, arr est any one for a breach of the peace, and carry him befo re 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). 330
The great commentators were not unanimous, however, a nd there is also considerable evidence of a broader concep tion 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, b y 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 autho ritative 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 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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common law, for treason, felony, breach of the peace, a nd some misdemeanors less than felony, committed in his view,
apprehend the supposed offender without any warrant" (italics in original)); 1 J. Chitty, A Practical
*331 Treatise on the Criminal
Law 20 (5th ed. 1847) ("[A constable] may for treason, felony, breach of the peace, and some misdemeanors less t han 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 an y person who in his presence commits a misdemeanor or brea ch of the
peace").
[4]
331
As will be seen later, the view of warrantless arrest au thority 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 j udge but
which, like Hale's own commentary, continued to be cited well after the ratification of the Fourth Amendment. In Holyday v.
Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805 (1631), the Court of King's Bench held that even a private person (and thu s a
fortiori a peace officer
[5]) needed no warrant to arrest a "common cheater" whom he discovered "cozen[ing] with false dice." The
court expressly rejected the contention that warrantless arr ests 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 fram ing, 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,
*332 That the [warrantless] arrest of any
other offenders . . . for offences in like manner scandal ous and prejudicial to the public, may be justified." 2 Hawkins, ch. 12, § 20,
at 122. A number of other common-law commentaries share d 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 prejud icial to the Publick, seems to be justifiable"); 1
T. Cunningham, A New and Complete Law Dictionary (177 1) (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]
332
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 t he relevant English decisions, as well as English and colonial
American legal treatises, legal dictionaries, and proced ure manuals, we simply are not convinced that
Atwater's is the correct, or
even necessarily the better, reading of the common-law h istory.
*333 2 333
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 Parliame nt well before this Republic's founding that authorized warrantless
misdemeanor arrests without reference to violence or tur moil. Quite apart from Hale and Blackstone, the legal background of any
conception of reasonableness the Fourth Amendment's Frame rs might have entertained would have included English statutes,
some centuries old, authorizing peace officers (and even p rivate persons) to make warrantless arrests for all sorts of relatively
minor offenses unaccompanied by violence. The so-called "n ightwalker" statutes are perhaps the most notable examples. From
the enactment of the Statute of Winchester in 1285, th rough its various readoptions and until its repeal in 18 27,
[7] night watchmen
were authorized and charged "as . . . in Times past" to "watch the Town continually all Night, from the Sun-set ting 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 extend ing the powers of
watchmen). Hawkins emphasized that the Statute of Winches ter "was made" not in derogation but rather "in affirmance of the
common law," for "every private person may by the common l aw 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 vir tually 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
*334 also 2 Hale, Pleas of the Crown, at 97 (describing bro ad arrest powers of watchmen even
over and above those conferred by the Statute of Wincheste r).
[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 tha t 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
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Statutes at Large 232-233, which Hawkins understood "sure ly" 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 sou rces of warrantless arrest authority absent real or threatened violence,
as the parties and their amici here seem to have assumed. On the contrary, following t he Edwardian legislation and throughout
the period leading up to the framing, Parliament re peatedly extended warrantless arrest power to cover misdem eanor-level
offenses not involving any breach of the peace. One 16th-ce ntury statute, for instance, authorized peace officers to arrest persons
playing "unlawful game[s]" like bowling, tennis, dice, a nd cards, and for good measure extended the authority be yond players to
include persons "haunting" the "houses, places and alleys wh ere such games shall be suspected to be holden, exercised, use d
*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 w ithout a license. 8
& 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes at Large 81 -83 (1697). And 18th-century statutes authorized the war rantless arrest of
"rogues, vagabonds, beggars, and other idle and disorder ly persons" (defined broadly to include jugglers, palm readers, and
unlicensed play actors), 17 Geo. II, ch. 5, §§ 1-2, 5, 1 8 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 street s, lanes or open
passages" with "pipes, butts, barrels, casks or other vessels" o r 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. Blacker by, The Justice of
Peace: His Companion, or a Summary of all the Acts of P arliament (1723) (cataloguing statutes); S. Welch, An Essay on the
Office of Constable 19-22 (1758) (describing same).
335
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 th e 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 336
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.
1
To begin with,
Atwater has cited no particular evidence that those who framed a nd ratified the Fourth Amendment sought to limit
peace officers' warrantless misdemeanor arrest authority t o instances of actual breach of the peace, and our own review of the
recent and respected compilations of framing-era document ary history has likewise failed to reveal any such design. See The
Complete Bill of Rights 223— 263 (N. Cogan ed. 1997) (collecting original sources); 5 The Founders' Constitutio n 219-244 (P.
Kurland & R. Lerner eds. 1987) (same). Nor have we fo und in any of the modern historical accounts of the Fourt h Amendment's
adoption any substantial indication that the Framers int ended such a restriction. See, e. g., L. Levy, Origins of the Bill of Rights
150-179 (1999); T. Taylor, Two Studies in Constitution al Interpretation 19-93 (1969); J. Landynski, Search and Seizure and the
Supreme Court 19-48 (1966); N. Lasson, History and De velopment of the Fourth Amendment to the United States Constitution
79-105 (1937); Davies, Recovering the Original Fourth A mendment, 98 Mich. L. Rev. 547 (1999); Amar, Fourth Amendment First
Principles, 107 Harv. L. Rev. 757 (1994); Bradley, Co nstitutional Theory of the Fourth Amendment, 38 DePau l 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 antici pated that
`unreasonable' might be read as a standard for warran tless intrusions").
337
The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surro unding the
framing of the Bill of Rights, colonial and state legi slatures, like Parliament before them, supra, at 333-335, regularly authorized 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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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 unnecessari ly travelling on the Sabbath or Lord's Day"); id., at 23 ("such as are
guilty of Drunkenness, profane Swearing, Sabbath-breakin g, 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) (breaker s of the Sabbath
laws); id., at 252 (1764 Act) (persons "gaming . . . in any license d public house, or other house sellingliquors"); Colonia l 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 Hampshi re 549 (1800) (1799 Act) (persons "travelling unnecessar ily" 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," a s 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 Dr ink,
Swearing, Sabbath breaking, Vagrant persons or night w alkers"); 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 mo ney").
[9]
338
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 sp ecifically 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
*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 unea rthing 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 th e fact that many of the original States with such constitu tional limitations
continued to grant their own peace officers broad warra ntless misdemeanor arrest authority undermines
Atwater's contention
that the founding generation meant to bar federal l aw 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 th e 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 diffe rent circumstances, the Second Congress apparently "saw no
inconsistency between the Fourth Amendment and legislatio n 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]
339
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 ge neral warrants and writs of assistance, were at
*340 all concerned
about warrantless arrests by local constables and other pea ce officers." Id., at 429 (concurring opinion). We simply cannot
conclude that the Fourth Amendment, as originally under stood, forbade peace officers to arrest without a warrant for
misdemeanors not amounting to or involving breach of the peace. 340
2
Nor does
Atwater's argument from tradition pick up any steam from the hi storical record as it has unfolded since the framing,
there being no indication that her claimed rule has eve r 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 adherin g to [a] well-
settled common-law rule"). The story, on the contrary, is of two centuries of uninterrupted (and largely unchal lenged) state and
federal practice permitting warrantless arrests for misdem eanors 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 se ntence in Carroll, already
explained). Although the Court has not had much to say a bout 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 an y reference to a breach-of-the-peace limitation.
[11] 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
*341 committed in his presence . . ."); Carroll,
267 U. S. , at 156— 157 ("The usual rule is that a police officer may arrest w ithout warrant one . . . guilty of a misdemeanor if
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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 o ffense 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 misdem eanor 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 glan ce, might seem to support her contention that "warrantless misdemeanor
arrest was unlawful when not [for] a breach of the pea ce." 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 offe nse 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 an y 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 establ ished 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 tha t the common-law rule could be "altered by the legislat ure" (notwithstanding
Massachusetts's own Fourth Amendment equivalent in its Sta te Constitution).
66 Mass., at 252 . Miner, the third and final case
upon which
Atwater relies, was expressly overruled just six years after it was de cided. 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 wen t on to offer the following: "[T]he question has arisen in
many of our sister states, and the power to authorize ar rest on view for offenses not amounting to breaches of th e peace has
been affirmed. Our attention has been called to no case , nor have we in our research found one, in which the co ntrary 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).
342
The reports may well contain early American cases more fa vorable to Atwater's position than the ones she has herself invoked.
But more to the point, we think, are the numerous ea rly- and mid-19th-century decisions expressly sustaining (often against
constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanor s 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 distribut ing 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 constitut ion 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 m isdemeanor 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 b e authorized by statute or ordinance to arrest without a warrant for various
misdemeanors and violations of ordinances, other than bre aches 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).
343
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 l egal commentary that, for more than a century now, has almost
uniformly recognized the constitutionality of extending wa rrantless 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 ca ses 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, w ithout a warrant, if committed in the officer's presence. Such statutes 344 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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are valid" (footnote omitted)); Clark, supra, § 12, at 50 ("In most, if not all, the states there a re statutes and city ordinances, which
are clearly valid, authorizing officers to arrest for certa in misdemeanors without a warrant, when committed in their presence"); J.
Beale, Criminal Pleading and Practice § 21, p. 20, an d n. 7 (1899) ("By statute the power of peace officers t o 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 m unicipal by-laws"); J. Bassett, Criminal Pleading and Practice § 89, p.
104 (2d ed. 1885) ("[A]s to the lesser misdemeanors, exce pt breaches of the peace, the power extends only so far as some
statute gives it"). But cf. H. Vorhees, Law of Arrest § 1 31, pp. 78-79 (1904) (acknowledging that "by authorit y of statute,
city
charter, or ordinance, [an officer] may arrest without a warrant, one who . . . commits a misdemeanor other t han a breach of the
peace," but suggesting that courts look with "disfavor" on such legislative enactments "as interfering with the constit utional
liberties of the subject").
Small wonder, then, that today statutes in all 50 Stat es and the District of Columbia permit warrantless misde meanor 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 *345 has long endorsed the validity of such legislation, see American Law Institute, Code of Criminal
Procedure § 21(a), p. 28 (1930); American Law Institut e, Model Code of PreArraignment Procedure § 120.1(1) (c), p. 13 (1975),
and the consensus, as stated in the current literature, i s 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, ther efore,
simply is not a case in which the claimant can point to "a clear answer [that] existed in 1791 and has been general ly adhered to
by the traditions of our society ever since." County of Riverside
v. McLaughlin, 500 U. S. 44, 60 (1991) (Scalia, J., dissenting) .
345
III
While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police ne ed not obtain an
arrest warrant merely because a misdemeanor stopped shor t of violence or a threat of it,
Atwater does not wager all on history.
[14] Instead, she asks us to mint a new *346 rule of constitutional law on the understanding that when historical practice fails to
speak conclusively to a claim grounded on the Fourth Amend ment, courts are left to strike a current balance between individual
and societal interests by subjecting particular contemporar y circumstances to traditional standards of reasonableness. See
Wyoming
v. Houghton, 526 U. S. 295, 299-300 (1999) ; Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652-653 (1995) .
Atwater accordingly argues for a modern arrest rule, one not n ecessarily requiring violent breach of the peace, but none theless
forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time a nd when the
government shows no compelling need for immediate dete ntion.
[15]
346
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 co mmon sense says she would almost
certainly have buckled up as a condition of driving off wit h a citation. In her case, the physical incidents of arrest were merely
gratuitous humiliations imposed by a police officer who w as (at best) exercising
*347 extremely poor judgment. Atwater's claim
to live free of pointless indignity and confinement clear ly outweighs anything the
City can raise against it specific to her case.
347
But we have traditionally recognized that a responsible F ourth Amendment balance is not well served by standards requiring
sensitive, case-by-case determinations of government need, le st 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 h eat) of the moment, and the object in implementing its command of
reasonableness is to draw standards sufficiently clear and sim ple 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 essentia l interest in readily administrable rules. See New York
v. Belton, 453 U.
S. 454, 458 (1981) (Fourth Amendment rules "`ought to be expressed in te rms that are readily applicable by the police in the
context of the law enforcement activities in which they ar e 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 sim plicity, so far as she claims that the Fourth
Amendment generally forbids warrantless arrests for mino r crimes not accompanied by violence or some
*348 demonstrable 348 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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threat of it (whether "minor crime" be defined as a fine-only traffic offense, a fine-only offense more gener ally, or a
misdemeanor
[17] ). But the claim is not ultimately so simple, nor could i t be, for complications arise the moment we begin to t hink
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 troubl e 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 ever y police officer to know the details of frequently comple x 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 diffi cult (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 gra m below *349 the fine-
only line?
[19] Where conduct could implicate more than one criminal p rohibition, which one will the district attorney ultimately
decide to charge?
[20] And so on.
349
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 au thorizing warrantless arrests where "necessary for enforceme nt of the
traffic laws or when [an] offense would otherwise contin ue and pose a danger to others on the road." Brief for Petitioners 46
(internal quotation marks omitted). (Were the line d rawn at misdemeanors generally, a comparable qualificat ion would
presumably apply.) The proviso only compounds the difficul ties. 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 i t 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 dr iving will "pose a danger to others on the road" while speeding will
not?
*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 r outinely 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 betw een no basis for legal action challenging the discretiona ry judgment, on the
one hand, and the prospect of evidentiary exclusion or (a s 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 almo st 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 str ike
us as "very unsatisfactory line[s]" to require police officers t o draw
on a moment's notice. Carroll
v. United States, 267 U. S. , at 157 .
350
One may ask, of course, why these difficulties may not be answ ered 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 practi ce the tie breaker would boil down to something akin to a least-restrictive-
alternative limitation, which is itself one of those "if s, ands, and buts" rules, New York
v. Belton, 453 U. S. , at 458, generally
thought inappropriate in working out Fourth Amendmen t protection. See, e. g., Skinner
v. Railway Labor Executives' Assn., 489
U. S. 602, *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 argum ents could raise insuperable barriers to the exercise of vir tually 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 under enforcement could easily ou tweigh the
costs to defendants of being needlessly arrested and booked , as
Atwater herself acknowledges. [22]
351
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 wa y
Atwater would have it
leads one to wonder whether warrantless misdemeanor arr ests need constitutional attention,
*352 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 misde meanor, is entitled to a magistrate's review of probable cause within 48 352 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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hours, County of Riverside v. McLaughlin, 500 U. S. , at 55-58, and there is no reason to think the procedure in this ca se atypical
in giving the suspect a prompt opportunity to request rel ease, see Tex. Transp. Code Ann. § 543.002 (1999) (perso ns arrested for
traffic offenses to be taken "immediately" before a magi strate). Many jurisdictions, moreover, have chosen to impose more
restrictive safeguards through statutes limiting warrantl ess 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 19 99); 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 An n. § 40-7—118(b)(1)
(1997); Va. Code Ann. § 46.2-936 (Supp.
2000 ). It is of course easier to devise a minor-offense limita tion 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 limi t 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]on tradicts [l]aw [e]nforcement [i]nterests"). Finally, and significantly, under
current doctrine the preference for categorical treatme nt 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 i nterests." 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).
353
The upshot of all these influences, combined with the go od 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 f oolish, 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 *354 for the development of a new and
distinct body of constitutional law. 354
Accordingly, we confirm today what our prior cases have int imated: the standard of probable cause "applie[s] to all arrests,
without the need to `balance' the interests and circumsta nces involved in particular situations." Dunaway
v. New York, 442 U. S.
200, 208 (1979) . If an officer has probable cause to believe that an in dividual has committed even a very minor criminal offense
in his presence, he may, without violating the Fourth A mendment, 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 n either she nor her children were wearing seatbelts, as required
by Tex. Transp. Code Ann. § 545.413 (1999). Turek was ac cordingly authorized (not required, but authorized) to make a custodial
arrest without balancing costs and benefits or determinin g whether or not
Atwater's arrest was in some sense necessary.
Nor was the arrest made in an "extraordinary manner, un usually 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 "e xtraordinary" turns,
above all else, on the manner in which the search or sei zure 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 custodia l arrest. She was handcuffed, placed in a squad car, and
*355 taken to
the local police station, where officers asked her to rem ove her shoes, jewelry, and glasses, and to empty her pocket s. They then
took her photograph and placed her in a cell, alone, f or about an hour, after which she was taken before a ma gistrate, and
released on $310 bond. The arrest and booking were inco nvenient and embarrassing to
Atwater, but not so extraordinary as to
violate the Fourth Amendment.
355
The Court of Appeals's en banc judgment is affirmed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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State Statutes Authorizing Warrantless Misdemeanor Arrest s 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 presen ce);
Ark. Code Ann. § 16-81-106(b)(2)(a) (Supp. 1999) ("w here 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 publi c 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. § 54-1f(a) (Supp.
2000 ) (for "any offense" when arrestee is taken in the act);
Del. Code Ann., Tit. 11, § 1904(a)(1) (1995) (for a ny misdemeanor committed in the officer's presence);
*356 D. C. Code Ann. § 23-581(a)(1)(B) (1996) (where of ficer has probable cause to believe a person has committed an offense
in the officer's presence); 356
Fla. Stat. § 901.15(1) (Supp. 2001) (for misdemeanor or ordinance violation committed in presence of the off icer);
Ga. Code Ann. § 17-4—20(a) (Supp. 1996) ("for a crim e . . . 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 committ ed any offense");
Idaho Code § 19-603(1) (1997) ("[f]or a public offen se committed or attempted in [officer's] presence");
Ill. Comp. Stat., ch. 725, § 5/107-2(1)(c) (1992) (wh en the officer "has reasonable grounds to believe that t he 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 perso n "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) (f or any offense punishable by confinement committed in th e officer's
presence); § 431.015(2) (Supp.
2000 ) (officer should generally issue citation rather than a rrest for certain minor "violations");
La. Code Crim. Proc. Ann., Art. 213(3) (West 1991) (w here the officer "has reasonable cause to believe that th e 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 ordi nance or bylaw
*357 of a
town"); Tit. 17—A, § 15(1)(B) (1983 and Supp.
2000 ) (for misdemeanors committed in the officer's presence);
357
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 mi sdemeanor offenses); ch. 272, § 60 (for littering offenses where identity
of arrestee is not known to officer);
Mich. Comp. Laws Ann. § 764.15(1)(a) (West
2000 ) (for felony, misdemeanor, or ordinance violation comm itted 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 o fficer's presence");
Miss. Code Ann. § 99-3—7 (Supp. 1998) (for indictable o ffense committed in presence of officer); § 45-3—21(1)(a) (vi) (by
Highway Safety Patrol Officers of "any person or persons com mitting or attempting to commit any misdemeanor, felony or breach
of the peace within their presence or view"); 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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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 committi ng 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 prese nce 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 probabl e
*358 cause for misdemeanor or violation committed in officer' s presence); 358
N. J. Stat. Ann. § 53:2-1 (West Supp. 2000) ("for violations of the law committed in [the officer s'] presence");
N. M. Stat. Ann. § 3-13-2(A)(4)(d) (1999) ("any perso n in the act of violating the laws of the state or the ordinances of the
municipality"); § 30-16-16(B) (1994) (for falsely obtai ning services or accommodations); § 30-16-23 (of any pers on officer has
probable cause to believe has committed the crime of shopl ifting);
N. Y. Crim. Proc. Law §§ 140.10(1)(a) and (2) (McKinn ey Supp. 2001) (when officer has probable cause to beli eve any offense
has been committed in his presence and probable cause to b elieve person to be arrested committed the offense);
N. C. Gen. Stat. § 15A-401(b) (1999) (where an offi cer has probable cause to believe the person has committed "a criminal
offense" in the officer's presence and for misdemeanors o ut 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 of ficer's presence");
Ohio Rev. Code Ann. § 2935.03 (1997 and Supp.
2000 ) (of a person "found violating . . . a law of this sta te, an ordinance of a
municipal corporation, or a resolution of a township") ;
but see § 2935.26 (1997) (providing that notwithstand ing any other provision of the Revised Code, when a la w enforcement
officer is otherwise authorized to arrest a person for th e commission of a minor misdemeanor, the officer shall no t arrest the
person, but shall issue a citation, except in specified circu mstances);
Okla. Stat., Tit. 22, § 196(1) (Supp. 2001) ("[f]or a public offense, committed or attempted in [the office r's] presence");
Ore. Rev. Stat. § 133.310(1) (1997) (upon probable cause for any felony, Class A misdemeanor, or any other of fense in the
*359
officer's presence except "traffic infractions" and minor "violations");
359
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. I. 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 o r 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 publi c offense, other than a petty offense, committed or att empted 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 t he peace threatened in the
officer's presence"); see also § 40-7—118(b)(1) (1997) (o fficer who has arrested a person for the commission of a misdemeanor
should generally issue a citation to such arrested person t o 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 di rectly prohibited by the laws of this state or by ordinance "); § 77— 7-2 (for
any public offense committed in presence of officer); 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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Vt. Rule Crim. Proc. 3(a) ( 2000) (where officer has probable cause to believe that "a cr ime" is committed in his presence);
see also Rule 3(c) (law enforcement officer acting withou t 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"); 360
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 t he 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 committ ing or has committed
a crime"); and
Wyo. Stat. Ann. § 7-2—102(b)(i) (1999) (when "[a]ny cr iminal 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 reco gnizes that
the arrest of Gail
Atwater was a "pointless indignity" that served no discernible sta te 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 war rant, 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 analysi s under the
Fourth Amendment is always `the reasonableness in all th e 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) .
361
We have "often looked to the common law in evaluating t he reasonableness, for Fourth Amendment purposes, of pol ice 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 de monstrates it is in this case, see ante, at 326-
345, we will "evaluate the search or seizure under tradi tional standards of reasonableness by assessing, on the one h and, the
degree to which it intrudes upon an individual's privacy a nd, 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 acknowle dges that
"
Atwater's claim to live free of pointless indignity and confineme nt clearly outweighs anything the City can raise against it
specific to her case." Ante, at 347. But instead of remedying this imbalance, the m ajority 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 individual
*362 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 pr inciples that lie at the core of the Fourth Amendment. 362
As the majority tacitly acknowledges, we have never consider ed the precise question presented here, namely, the
constitutionality of a warrantless arrest for an offense p unishable only by fine. Cf. ibid. Indeed, on the rare occasions that 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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Members of this Court have contemplated such an arrest, th ey 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 hi s 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 im prisonment, we have held that the
existence of probable cause is also a sufficient condition fo r an arrest. See United States
v. Watson, 423 U. S. 411, 416-417
(1976) . In Watson, however, there was a clear and consistently applied commo n 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 arres ts by
weighing individual liberty interests against state inter ests. Cf. Wyoming
v. Houghton, supra, at 299-300 ; Tennessee v. Garner,
supra, at 26 (O'Connor, J., dissenting) (criticizing majority for disre garding undisputed common law rule).
Here, however, we have no such luxury. The Court's thorou gh exegesis makes it abundantly clear that warrantless
*363
misdemeanor arrests were not the subject of a clear and co nsistently applied rule at common law. See, e. g., ante, at 332 (finding
"disagreement, not unanimity, among both the common-l aw 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 unset tle any
contention [that there was a clear common-law rule barr ing warrantless arrests for misdemeanors that were not b reaches of the
peace]"). We therefore must engage in the balancing te st 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 a rrests demonstrates that probable
cause alone is not a sufficient condition. See infra, at 364-366.
363
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 reasonabl eness 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 be en 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 warrant less arrests for fine-only
offenses. Nor should our words be taken beyond their conte xt. There are significant qualitative differences between a traffic stop
and a full custodial arrest. While both are seizures tha t fall within the ambit of the Fourth Amendment, the latter entails a much
greater intrusion on an individual's liberty and privacy i nterests. As we have said, "[a] motorist's expectations, whe n he sees a
policeman's light flashing behind him, are that he wil l be obliged to spend
*364 a short period of time answering questions and
waiting while the officer checks his license and registrat ion, 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 off ense is punishable only
by fine, "probable cause to believe the law has been bro ken [will] `outbalanc[e]' 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 i n serious
tension with the Fourth Amendment's proscription of unr easonable seizures.
364
A custodial arrest exacts an obvious toll on an individual 's liberty and privacy, even when the period of custody is r elatively brief.
The arrestee is subject to a full search of her person a nd confiscation of her possessions. United States
v. Robinson, supra . If the
arrestee is the occupant of a car, the entire passenger com partment 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 with out 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 nonvi olent offenses may be housed together awaiting such revie w, this
detention period is potentially dangerous. Rosazza & Coo k, Jail Intake: Managing A Critical Function—Part One: Resources, 13
American Jails 35 (Mar./Apr. 1999). And once the perio d of custody is over, the fact of the arrest is a permanent
*365 part of the
public record. Cf. Paul
v. Davis, 424 U. S. 693 (1976) .
365
We have said that "the penalty that may attach to any par ticular offense seems to provide the clearest and most con sistent
indication of the State's interest in arresting individu als suspected of committing that offense." Welsh
v. Wisconsin, 466 U. S. 740, 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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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 custod ial arrest may on occasion vindicate legitimate state inte rests, even if the
crime is punishable only by fine. Arrest is the surest way t o 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 c onsiderations are not
present, a citation or summons may serve the State's remai ning 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 getti ng violators to court without physical arrest. A citation sh ould 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. I.").
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 go vernmental interests." Wyoming
v. Houghton, 526 U. S. , at 300 . In light of the
availability of citations to promote a State's interests w hen a fine-only offense has been committed, I cannot con cur in a rule
which deems a full custodial arrest to be reasonable in e very 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 commit ted 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 be en 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 custodia l arrest. Terry
v. Ohio, 392 U. S. , at 21 .
366
The majority insists that a bright-line rule focused on p robable 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 mo del of precision. "The
quantum of information which constitutes probable cause—ev idence which would `warrant a man of reasonable caution in the
belief' that a [crime] has been committed—must be measure d 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 r equires a legitimate reason for the decision to
escalate the seizure into a full custodial arrest—thus does n ot undermine an otherwise "clear and simple" rule. Cf. ante, at 347.
While clarity is certainly a value worthy of consideration i n our Fourth Amendment jurisprudence, it by no means trumps the
values of liberty and privacy at the heart of the Amendm ent's protections. What the Terry rule lacks in precision it makes up for in
fidelity to the Fourth Amendment's command of reasonabl eness and sensitivity to the competing values protected by t hat
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 constituti onal 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 m ore than adequately resolved by the doctrine of qualified immunity. 367
Qualified immunity was created to shield government offi cials from civil liability for the performance of discretionary functions so
long as their conduct does not violate clearly established st atutory 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 con stitutional 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 r easonableness for qualified immunity purposes. Id., at 641. If a law
enforcement officer "reasonably but mistakenly conclude[s]" 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 di sincentives to arrest. If, for example, an officer reasonably thinks that a
suspect poses a flight risk or might be a danger to the com munity if released, cf. ante, at 351, he may arrest without fear of the
legal consequences. Similarly, if an officer reasonably con cludes 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 insu lated from liability for
arresting the suspect even if the initial assessment turns o ut 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 368 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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entail substantial social costs, such as inhibiting public of ficials 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 legit imate interests.
There is no question that Officer Turek's actions severely i nfringed
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 childre n, 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 insur ance 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 frien d's house down the street before going to the police sta tion. Record
384. But Turek—who had just castigated
Atwater for not caring for her children—refused and said he wou ld take the children
into custody as well. Id., at 384, 427, 704-705. Only the intervention of neigh borhood
*369 children who had witnessed the scene
and summoned one of
Atwater's friends saved the children from being hauled to jail w ith their mother. Id., at 382, 385-386.
369
With the children gone, Officer Turek handcuffed Ms. Atwater with her hands behind her back, placed her in the poli ce 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 seatbel t 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 ch ild 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 ha d been driving
very slowly—approximately 15 miles per hour—in broad dayligh t on a residential street that had no other traffic. Record 380. Nor
was she a repeat offender; until that day, she had rece ived 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 b een cited and allowed to leave.
370
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 psych ologist regularly, who reported that the boy "felt very guilty
that he couldn't stop this horrible thing . . . he wa s 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 taugh t the children an important lesson in accepting responsibi lity and obeying
the law. Arresting
Atwater , though, taught the children an entirely different l esson: that "the bad person could just as easily be the
policeman as it could be the most horrible person they cou ld imagine." Ibid. 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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Respondents also contend that the arrest was necessary to ensu re 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 fo r Texas Places 15 (Sept. 1998). Although she
*371 was unable to produce
her driver's license because it had been stolen, she gave O fficer Turek her license number and address. Record 386. In addition,
Officer Turek knew from their previous encounter that
Atwater was a local resident.
371
The city's justifications fall far short of rationalizing the extra ordinary intrusion on Gail Atwater and her children. Measuring "the
degree to which [
Atwater's custodial arrest was] needed for the promotion of legi timate 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 th ere.
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 Ame ricans. 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. N or 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. § 16— 7-43 (1996); Iowa Code §§ 321.369, 805.8( 2)(af) (Supp. 2001).
To be sure, such laws are valid and wise exercises of the Sta tes' 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
today's holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurr ed, 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 includ ing 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, s ee 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 unf ettered
discretion to choose that course without articulating a sin gle reason why such action is appropriate.
372
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 ha rassing an
individual. After today, the arsenal available to any o fficer 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' poststop actions—which are properly within our reach—compor t with the
Fourth Amendment's guarantee of reasonableness.
*373 * * * 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 respectful ly dissent.
[*]
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 Unive rsity 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 Associa tion by Greg
Westfall and William S. Harris. 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Waxman, Assistant Attorney Genera l 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.
[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 u nsafe, and Turek issued a verbal
warning. See Record 379.
[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 oth er court process on Sunday "except in cases of trea son, 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 constru ctively 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 author ity, the term's precise import is not altogether clear. See J. Turner, Kenny's Outlines of
Criminal Law § 695, p. 537 (17th ed. 1958) ("Strang ely enough what constitutes a `breach of the peace' has not been authoritatively laid down");
G. Williams, Arrest for Breach of the Peace, 1954 C rim. L. Rev. 578, 578-579 ("The expression `breach of the peace' seems clearer than it is and
there is a surprising lack of authoritative definit ion of what one would suppose to be a fundamental c oncept in criminal law"); Wilgus, supra, at 573
("What constitutes a breach of peace is not entirely certain"). More often than not, wh en used in reference to common-law arrest power, th e term
seemed to connote an element of violence. See, e. g., M. Dalton, Country Justice, ch. 3, p. 9 (1727) ("T he Breach of th[e] Peace seemeth to be
any injurious Force or Violence moved against the P erson of another, his Goods, Lands, or other Posses sions, 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. Blac kstone, Commentaries on the Laws of
England 149 (1769) (hereinafter Blackstone) ("[s]pr eading 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 ar rest, the phrase "breach of the peace" was
understood narrowly, as entailing at least a threat of violence.
[3]
E. Foss, The Judges of England 113 (1864).
[4]
Cf. E. Trotter, Seventeenth Century Life in the Co untry Parish: With Special Reference to Local Gover nment 88 (1919)(describing broad
authority of local constables and concluding that, "[i]n short, the constable must apprehend, take cha rge of and present for trial all persons who
broke the laws, written or unwritten, against the K ing's peace or against the statutes of the realm . . .").
[5]
See 2 Hawkins, ch. 13, § 1, at 129 ("[W]herever an y [warrantless] arrest may be justified by a private person, in every such case à fortiori it may
be justified by any [peace] officer").
[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 gener ated Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763), the "parad igm search and seizure
case for Americans" of the founding generation, Ama r, 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 t o arrest without a warrant; more especially, where taken in the
very act . . .").
[7]
7 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.
[8]
Atwater seeks to distinguish the nightwalker statutes by a rguing that they "just reflected the reasonable not ion that, in an age before lighting,
finding a person walking about in the dead of night equaled probable suspicion that the person was a f elon." Reply Brief for Petitioners 7, n. 6. Hale
indicates, however, that nightwalkers and felons we re not considered to be one and the same. 2 Hale, P leas of the Crown, at 97 ("And such a
watchman may apprehend night-walkers and commit the m to custody till the morning, and also felons and persons suspected of felony").
[9]
Given these early colonial and state laws, the fac t that a number of States that ratified the Fourth Amendment generally incorporated common-
law principles into their own constitutions or stat utes, see Wilson
v. Arkansas, 514 U. S. 927, 934 (1995), cannot aid Atwater here. Founding-era
receptions of common law, whether by state constitu tion 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, Source s and Documents of United States Constitutions 203 (1973) (hereinafter
Swindler) ("The common law of England . . . shall r emain 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 E ngland . . . shall still remain in force, until [it] shall be altered by a future law of the
Legislature"); N. Y. Const., Art. XXXV (1777), 7 Sw indler 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 la w of [New York on April 19, 1775,] shall be and con tinue the law of this State, subject to such
alterations and provisions as the legislature of th is 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 declare d to be in full Force within this State"); Ordinances
of May 1776, ch. 5, § 6, 9 Statutes at Large of Vir ginia 127 (W. Hening ed. 1821) ("[T]he common law o f England . . . shall be the rule of decision,
and shall be considered in full force, until the sa me shall be altered by the legislative power of thi s colony"). 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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[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 Fo urth 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.
[11]
We need not, and thus do not, speculate whether th e Fourth Amendment entails an "in the presence" req uirement 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 war rantless arrest is not grounded in the Fourth Amend ment").
[12]
See Appendix, infra.
[13]
See, e. g., 18 U. S. C. § 3052 (Federal Bureau of Investigatio n agents authorized to "make arrests without warran t for any offense against the
United States committed in their presence"); § 3053 (same, for United States marshals and deputies); § 3056(c)(1)(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 agent s); 25 U. S. C. § 2803(3)(A) (same, for
Bureau of Indian Affairs 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 c lear 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 authori zing
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 t o a Fourth Amendment inquiry, post, at 361. Justice O'Connor herself has observed that courts
must be "reluctant . . . to conclude that the Fourt h 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 st ate 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 "claim[s] tha t [a]
practic[e] accepted when the Fourth Amendment was a dopted [is] now constitutionally impermissible," the dissent bears the "heavy burden" of
justifying a departure from the historical understa nding. 471
U. S. , at 26 .
[15]
Although it is unclear from Atwater's briefs whether the rule she proposes would bar cus todial 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 obtaine d, this arrest . . . would . . . be reasonable."
Tr. of Oral Arg. 5.
[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; bu t 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 po lice act with such justification.
[17]
Compare, e. g., Brief for Petitioners 46 ("fine-only") with, e. g., Tr. of Oral Arg. 11 (misdemeanors). Because the di fficulties 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 maxi mum 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; subseque nt offense punishable by imprisonment); Tex. Penal Code Ann. §§ 42.01, 49.02, 12.23,
12.43 (1994 and Supp. 2001) (first public drunkenne ss or disorderly conduct offense subject to maximum $500 fine; third offense punishable by 180
days' imprisonment).
[19]
See, e. g., 21 U. S. C. §§ 844, 844a (possession of "personal use amount" of a controlled substance subject to ma ximum $10,000 fine;
possession of larger amount punishable by one year' s imprisonment); Tex. Health & Safety Code Ann. § 4 81.121(b) (Supp. 2001) (possession of
four ounces or less of marijuana a misdemeanor; pos session of more than four ounces a felony). See generally National Survey of State Laws 151-
188 (3d R. Leiter ed. 1999) (surveying state laws c oncerning drug possession).
[20]
For instance, the act of allowing a small child to stand unrestrained in the front seat of a moving v ehicle 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 c ourts in their discretion to term certain offenses as felonies or as misdemeanors").
[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 endles s litigation with respect to the existence of
exigent circumstances, whether it was practicable t o get a warrant, whether the suspect was about to f lee, and the like").
[22]
The doctrine of qualified immunity is not the pana cea the dissent believes it to be. See post, at 367-368. As the dissent itself rightly
acknowledges, even where personal liability does no t 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 qual ified immunity defenses are forced to incur "the ex penses of litigation" and to
endure the "diversion of [their] official energy fr om 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 ve ry 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 b e able to tell with much confidence whether a suspe ct's conduct qualified, or even "reasonably"
qualified, under one of the exceptions to
Atwater's general no-arrests rule. 1/23/2017Atwater v. Lago Vista, 532 US 318 - Supreme Court 20 01 - Google Scholar
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[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. A1 (describing incident). Not surprisingly, gi ven the practical and political considerations
discussed in text, the Washington Metro Transit Pol ice recently revised their "zero-tolerance" policy to provide for citation in lieu of custodial arrest of
subway snackers. Washington Post, Feb. 27, 2001, at B1.
[24]
One of Atwater's amici described a handful in its brief. Brief for Americ an 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 "walki ng as to create a hazard").
[25]
The dissent insists that a minor traffic infractio n "may often serve as an excuse" for harassment, an d 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" a nd "carries with it grave potential for abuse." Post, at 371, 372. But the dissent's own language
( e. g., "may," "potentially") betrays the speculative natu re of its claims. Noticeably absent from the parade of horribles is any indication that the
"potential for abuse" has ever ripened into a reali ty. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of
minor-offense arrest authority.
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