US Supreme Court Briefs

No. 99-1408

In The
Supreme Court of the United States

GAIL ATWATER, AND MICHAEL HAAS AS NEXT
FRIEND OF ANYA SAVANNAH HAAS AND
MACKINLEY XAVIER HAAS,

Petitioners,
V.



CITY OF LAGO VISTA, BART TUREK,
AND FRANK MILLER,

Respondents.


On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit


BRIEF OF PETITIONERS



PAMFLA MCGRAW

Attorney at Law
P.O. Box 202165
Austin, Texas 78720
(512) 257-3688

MICHAEL F. STURLEY

727 East Dean Keaton St.
Austin, Texas 78705
(512) 232-1350
ROBERT C. DECARU*
DEBRA IRWIN
LAW OFFICES OF DFCARI I
& IRWIN
12034 Research Blvd.,
Suite 6
Austin, Texas 78759 (512)
258-9299


Counsel for Petitioners
*Cot~nsel of Record


QUESTION PRESENTED


Petitioner Gail Atwater was placed under custodial arrest for not wearing a seat belt, a misdemeanor that carries a fifty-dollar fine as its
maximum penalty. Does the Fourth -Amendment limit the use of custodial arrests for fine-only traffic offenses?





























1


TABLE OF CONTENTS

QUESTION PRESENTED
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES vi
OPTNIONS BELOW 1
JURISDICTION I

CONSTITUTIONAL AND
STATUTORY PROVISIONS 1
STATEMENT OF THE CASE 2
1. John Wilkes and the rejection of general
warrants in England 9

2. Challenges to writs of assistance in colonial
America 10


3. The Fourth Amendment repudiated unfettered
search and seizure discretion 12

B. Warrantless Arrests Could Only be Made for Felonies
and Breaches of the Peace Committed in
the Presence of the Arresting Official 13

C. Because Officer Turek's Arrest of Gail Atwater
Would Have Been Unlawful When the Fourth
Amendment Was Adopted, the Arrest Was
Unconstitutional 19
1. TheFacts 2


11. The Proceedings Below 5
SUMMARY OF THE ARGUMENT 6
ARGUMENT 7

I. Both the History Leading to the Fourth Amendment's
Adoption and Founding-Era Rules Governing
Warrantless
Arrests Make Clear that the Custodial Arrest Here Was
Unconstitutional 7

A. The Fourth Amendment Was Adopted to Check
Unfettered Discretion of the Sort Given by
General
Warrants and Writs of Assistance to Conduct
Searches and Seizures Arbitrarily 8
D. The Decision Below Is Contrary to the Fourth
Amendment Because It Grants Law Enforcement
Unfettered Discretion to Search and Arrest of the
Sort the Fourth Amendment Was Meant to End
20

II. Balancing the Competing Interests of Law
Enforcement and the Individual Demonstrates that the
Custodial Arrest of Ms. Atwater for Non-Usage of Seat
Belts Was
Constitutionally Unreasonable 23

A. The Nature and Quality of the Intrusion on Gail
Atwater's Liberty Interests Was Substantial ... 24

1. Custodial arrests as a general matter are
significant governmental intrusions 24





11 111


arrest of Gail Atwater was
pixt~Lulv invasive and extreme 28

It T~* ~~crnmcnts Interest in Enforcing the Seat
li4~ t .~' IXc~ Not Justify the Intrusion Here . 30
IV. This Case Lends Itself to Articulating More
Clearly the Permissible Boundaries of When a
Custodial Arrest May
Be Used for Fine-Only Traffic Offenses 45
V. CONCLUSION 49
1~c v~ cmmcntal interest in
enforcing the seat
~ is rcl.izivcly slight 31


~ fl~c o.~stodiaI arTest furthered no
legitimate law
~~icrncni objective that could not also
have ~cwn a~c~enplishcd by issuing a
citation ... 32

~ s~c~~i.al circumstances were present in this
~. in.~kc a custodial arrest necessary or
33
Ill I)~ ( ua~t 1k l~ncd by Creating a Broad Per
Se Rule
tKaa 1'~&M~ ~aa.iic Without More Justifies
Any Custodial
Xz~rit ~.-~ki.s ~d ihc Offense 36
A Th.c . 44 Appeals' Reliance on Whren
v. United
~ ~ ~diiplaccd 36

Ii C ~.w.t .i~:~.1 liaison Upheld Only
Warrantless
~b_~' Arrcsts, and its Analysis Supports
~ l~it;on 40

( th.c t~t~o~'i Hdow Abrogates the
Automobile I t~c~ ~ h~ Penmiting
Warrantless Vehicular a~?'c~i )~.h~'w
Probable Cause that a Vehicle
~a~t t'~trjb.and 41

Il I ~ .'~.i ~t Appcals' Ruling Undermines this
4 ~..:- ~ ~v~n Iu knowles V. Iowa 43

-iv





TABLE OF AUTHORITIES
Page
Cases

Almeida-Sanchez v. United States,
413 U.S. 266 (1973) 43

Atwater v. City of Lago Vista,
165 F.3d 380 (5th Cir. 1999) 19,30

Atwater v. City of Lago Vista,
195 F.3d 242 (5th Cir. 1999) (en banc) passim

Baltimore & 0. R. Co. v. Cain,
81 Md.87,31 A. 801 (1895) 41

Beckwith v. Philby,
6 Barn. & Cress. 635,
108 Eng. Rep. 585 (K.B.1827) 40

Berkemer v. McCarty,
468 U.S. 420 (1984) 25,28,46,48
Camara v. Municipal Court,
387 U.S. 523 (1967)

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

City of Chicago v. Morales,
527 U.S. 41(1999)

Colorado v. Bertine,
479 U.S. 367 (1986)

Commonwealth v. Carey,
66 Mass. (12 Cush.) 246 (1853)

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

Davis v. United States,
328 U.S. 582 (1946)

Delaware v. Prouse,
440 U.S. 648 (1979)
12



13,15,18,42-43



15-16



28



17



20,27,45



13



.... 12,23,30,38,49




Boyd v. United States,
116 U.S. 616 (1886) 8

Bridgestone/Firestone, Inc. v. Glyn-Jones,
878 S.W.2d 132 (Tex. 1994) 31

California v. Carney,
471 U.S. 386 (1985) 24,42
California v. Hodari D., 499 U.S. 621 (1991)


Dickerson v. United States,
530 U.S. ___, slip op. (June 26, 2000) 19

Edmond v. Goldsmith,
183 F.3d 659 (7th Cir. 1999),
cert. granted, No. 99-1030 (Feb. 22, 2000)

4
8

Florida v. Bostick,
501 U.S. 429 (1991)

2
6
20
-vi- -vii-





Florida v. Royer,
460 U.S. 491 (1983) 26

Graham v. Connor,
490 U.S. 386 (1989) 26

Henry v. United States,
361 U.S. 98 (1959) 8,24

Holley v. Mix,
3 Wend. 350 (N.Y. Sup. Ct.1829) 40

Huckle v. Money,
2 Wils. K.B. 205, 95 Eng. Rep. 768 (K.B. 1763) .. 9

Hudson v. Palmer,
468 U.S. 517 (1984) 27

Illinois v. Lafayette,
462 U.S. 640 (1983) 34

Johnson v. State,
3OGa.426(1860) 41

Knowles v. Iowa,
525 U.S. 113 (1998) 24,25,33,34,43-44,45

Kurtz v. Moffitt,
115 U.S. 487 (1885) 40

Leach v. Money,
19 Howell St. Tr. 1001,
97 Eng. Rep. 1075 (K.B. 1765) 10




-viii-
Maryland v. Wilson,
519 U.S. 408 (1997) 23,25,47

McDonald v. United States,
335 U.S. 451 (1948) 31

Michigan v. Long,
463 U.S. 1032 (1983) 48

New York v. Belton,
453 U.S. 454 (1981) 28,42

New York v. Class,
475 U.S. 106 (1986) 30,47

Ohio v. Robinette,
519 U.S. 33 (1996) 45,48

Ornelas v. United States,
517 U.S. 690 (1996) 39

Payton v. New York,
445 U.S. 573 (1980) 24

Pennsylvania v. Labron,
518U.S.938(1996)(percuriam) 42

Pennsylvania v. Mimms,
434 U.S. 106 (1977) 23,47

Peters v. New York,
392 U.S. 40(1968) 44

Pow v. Beckner,
3Ind. 475 (1852) 17

-ix-





Rawlings v. Kentucky,
448 U.S. 98 (1980) 44

Read v. Scott Feizer Co.,
990 S.W.2d 732 (Tex. 1998) 28

Regina v. Tooley,
2 Ld. Raym. 1296,
92Eng.Rep. 349(K.B. 1710) 14

Reuck v. McGregor,
32 N.J.L. 70 (Sup. Ct.1866) 41

Robison v. Miner,
68Mich.549,37N.W.21(1888)

1
7

Rohan v. Sawin,
59 Mass. (59 Cush.) 281 (1850) 40

Samuel v. Payne,
I Doug. 359, 99 Eng. Rep. 230
(
K
.
B
.
1
7
8
0
)

4
0

Schmerber v. California,
384 U.S. 757 (1966)

3
8

State v. Brown,
S Del. (5 Harr.) 505 (Ct. Gen.
S
e
s
s
.
1
8
5
3
)

4
0

State v. Harmon,
910P.2d1196(Utah 1995)

3
6

State v. Jones,
727N.E.2d 886 (Ohio 2000) 36


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

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

Texas v. Brown,
460 U.S. 730 (1983)

United States v. Cortez,
449 U.S. 411 (1981)

United States v. McRae,
81 F.3d 1528 (10th Cir. 1996)

United States v. Martinez-Fuerte,
428 U.S. 543 (1976)

United States v. Place,
462 U.S. 696 (1983)

United States v. Potts,
173 F.3d 430, 1999 WL 96756 (6th Cir. Feb.
(unpublished disposition)

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

United States v. Ross,
456 U.S. 798 (1982)

United States v. Smith,
80 F.3d 215 (7th Cir. 1996)
23,31,38



23,25,27



48


38


39


23,38


23,38,48



2, 1999)
39


24,26,43



47



21
-xi-





United States v. Sullivan,
138 F.3d 126 (4th Cir. 1998) 39

United States v. Watson,
423 U.S. 411 (1976) 8,13,25-26,40-41,46

Wade v. Chaffee,
8R.I.224(1865) 41

Wakely v. Hart,
6Bin.316(Pa.1814)

4
0

Warden v. Hayden,
387 U.S. 294(1967) 8

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

31,
32

Whren v. United States,
517 U.S. 806 (1996) 22,31,36-39

Wilkes v. Wood,
19 Howell St. Tr. 1153,
98 Eng. Rep. 489 (C.P. 1763) 9-
10

Wilson v. Arkansas,
514 U.S. 927 (1995) 38,45

Winston v. Lee,
470 U.S. 753 (1985) 3 1,34,38

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

1
8



-xii-
Wyoming v. Hough ton,
526 U.S. 295 (1999)

6,2
0


Constitutions. Statutes. Rules
The Fourth Amendment passim
28 U.S.C. 1254(1) I

Act of July12, 1984, 68th Leg., 2nd
C.S., cli. 1, 1, 1984 Tex.
Gen.Lawsll

3
1

Tex. Transp. Code Ann. 521.025 (West
1
9
9
9
)

5

Tex. Transp. Code Ann. 543.003 (West
1
9
9
9
)

4

Tex. Transp. Code Ann. 543.004 (West
1
9
9
9
)

4

Tex. Transp. Code Ann. 543.005 (West
1
9
9
9
)

4

Tex. Transp. Code Ann. 545.413 (West
1999) .. 1-2,31,32

Tex. Transp. Code Ann. 601.191 (West
1
9
9
9
)

5

Tex. Transp. Code Ann. 601.193 (West
1
9
9
9
)

5


Other Authorities

Legal Papers of John Adams (L. Kinvin Wroth &
Hiller B.
Zobel eds., 1965) 11,22

Akhil Reed Amar, Fourth Amendment First Principles, 107
Harv. L. Rev. 757 (1994) 10

-xiii-





American Bar Association, Standards for Criminal
Justice,
10.2-1 (2ded. 1980) 32

4 William Blackstone, Commentaries on the Laws of
England
(1769) 14,15

4 William Blackstone, Commentaries [star pagination] ..
41 Francis H. Bohien & Henry Shulman, Arrest With and
Without
a Warrant, 75 U. Pa. L. Rev. 485 (1927) 15,18
John Bouvier, A Law Dictionary 146 (1839) 14
John Bouvier, A Law Dictionary (11th ed. 1865) 17

Brief Amicus Curiae of the Institute on Criminal Justice at
the
University of Minnesota Law School et al 46

Brief of Appellees, Atwater v. City ofLago Vista, 165 F.3d
380
(5th Cir. 1999) (No. 98-50302) 35

Brief for the United States in Opposition, Potts v. United
States,
No. 98-2000 39

Kurt B. Chadwell, Comment, Automobile Passive Restraint
Claims Post-Cipollone: An End to the Federal Preemption
Defense, 46 Baylor L. Rev. 141 (1994)

3
1

Joseph Chitty, Practical Treatise on the CriminalLaw
(I st Am.
ed. 1819)

1
8

~The Conductor Generalis (Hugh Game ed., New
York
1788) 15




-xiv-
John G. Crocker, The Duties of Sheriffs,
Coroners and
Constables (2d ed. 1871) 18

William J. Cuddihy, The Fourth
Amendment: Origins and
Original Meaning (1990) (unpublished
PhD. dissertation,
Claremont Graduate School) 9,12

T. Cunningham, A New and Complete Law-
Dictionary (1783
ed.)

1
7

Thomas Y. Davies, Recovering the Fourth
Amendment, 98
Mich. L. Rev. 547 (1999) 11,12
Encyclopaedia of the Laws of England (2d
ed. 1908) 16,17
Matthew Hale, Pleas of the Crown (2d ed. 1678) . . . 14,15
Matthew Hale, Pleas of the Crown [star pagination] 41
Halsbury's Laws of England (3d ed. 1955) 13,41

1 William Hawkins, A Treatise of the Pleas of
the Crown
(1716) 14

2 William Hawkins, A Treatise of the Pleas of
the Crown
(1721) 15

T.W. Hughes, A Treatise on Criminal Law and
Procedure 876
(1919) 18
Giles Jacob, A New-Law Dictionary (7th ed. 1756) 15
Giles Jacob, The Law-Dictionary (Am. ed. 1811) 17

J. Johnson, Les Termes de la Ley (1st Am. ed. 1812) .... 15

-xv-





Eliphalet Ladd, Burn s Abridgment, or the American Justice
(1792) 15

Wayne R. LaFave, Search and Seizure (3d ed. 1996)
21-22,32-33,44

Nelson B. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution (1937) .
. 9-12

Tracey Maclin, The Central Meaning of the Fourth
Amendment, 35 Win. & Mary L. Rev. 197 (1992) 12

Francois-Xavier Martin, The Office and Authority of a
Justice of the Peace, and of Sheriffs,
Coroners, &c. According to the Laws of the
State of North-Carolina (1791) iS

Arthur Mendelson, Arrest for Minor Traffic Offenses, 19
Cm.
L. Bull. 501 (1983)

3
3

William L. Murfee, A Treatise on the Law of Sheriffs and
Other
Ministerial Officers (1884) 18

Wesley M. Oliver, With an Evil Eye and an Unequal Hand:
Pretextual Stops and Doctrinal Remedies to Racial Profiling,
74 Tulane L. Rev. 1409 (2000) 44

Rollin M. Perkins, The Law of Arrest, 25 Iowa L.
Rev. 201
(1940) 14,32

Respondent's Brief at 15, Ricci v. Village
ofArlington Heights,
No. 97-501, 1998 WL 134006 44
Barbara C. Salken, The General Warrant of the
Twentieth
Century? A Fourth Amendment Solution to
Unchecked
Discretion to Arrest for Traffic Offenses, 62
Temple L. Rev.
221 (1989) 12,20,28,33

William A. Schroeder, Warrantless Misdemeanor
Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771
(1993) 28

James F. Stephen, A History of the Criminal Law of England
(1883) 41

Telford Taylor, Two Studies in Constitutional
Interpretation
(1969) 9

U.S. Dep't of Transportation, National Maximum Speed
Limit
-- Fiscal Year 1993: Travel Speeds, Enforcement Efforts, and
Speed-Related Highway Safety Statistics tbls. I & 3
(Oct. 1995) 21

U.S. Dept. of Transportation, National Highway Traffic
Safety
Administration, National Survey of Speeding and Other
Unsafe
Driving Actions 119 (1998) (report no. DOT HS 808 749)
21

U.S. Dept. of Transportation, National Highway Traffic
Safety
Administration, 1998 Motor Vehicle Occupant Safety Survey
20 (2000) (report no. DOT HS 809 051) 21

Horace L. Wilgus, Arrest Without a Warrant, 22 Mich. L.
Rev.
541 (1924) 41

Works of James Wilson (Robert G. McCloskey, ed. 1967)
16






-xvi- -xvii-


OPINIONS BELOW

The decision of the United States Court of Appeals for the Fifth Circuit, sitting en banc, is reported as
Atwater v. City of Lago Vista, 195 F.3d 242 (5th Cir. 1999) (en banc), and is reproduced in Appendix A to the petition for writ of
certiorari.

The decision of the three-judge panel of the Fifth Circuit is reported as Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir. 1999), and is
reproduced in Appendix B to the petition for writ of certiorari.

The order of the United States District Court for the Western District of Texas was not published, but is reproduced in Appendix C to the
petition for writ of certioran.

JURISDICTION

The court of appeals' judgment was entered on November 24, 1999. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1). Petitioners' petition for writ of certiorari was filed on February 22, 2000, and this Court granted the petition on June 26, 2000.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

1


rex. Transp. Code Ann. 545.413 (West 1999)
(subsequently amended effective Sept. 1, 1999).

The siarute is set out, in relevant part, in the petition
for writ of certiorari at p. 2.

STATEMENT OF THE CASE

This case concerns a constitutionally unreasonable
use of a full custodial arrest for a fine-only traffic offense.
Following a trafiTh stop, a Lago Vista police officer placed
petitioner Gail At~vater under full custodial arrest for
violating a Texas statute that requires the use of seat belts.

I. The Facts

Gail Atwater and her family have been residents of
the
small town of Lago Vista, Texas for sixteen years. (R. 376).
Ms. Atwater is a full-time mother and her husband, Michael
Haas, is an emergency room physician at a local hospital. (R.
3 76-77). Their daughter Anya was almost six years old and
their son Mac was almost four years old at the time of this
incident. (R. 377).

On the afternoon of March 26, 1997, Gail Atwater
was
driving Anya and Mac home from soccer
practice. After leaving the soccer field, one of the
children realized they had lost a favorite toy, a winged bat
made of rubber with a suction cup that had been affixed to
the outside of the truck window. (R. 380). The children
asked their mother if they could look for it, so Ms. Atwater
back-tracked along the route they had taken
-to drive to the soccer field. The children had previously
been wearing seat belts, but Ms. Atwater permitted them to
take off their belts so they could look out the truck's
windows in search of their lost toy. (R. 380).
There was no traffic on the
residential street near their home on which they were
driving, and their speed was approximately fifteen miles-per-
hour. (R.
380).

Respondent Bart Turek, a Lago Vista police officer,
observed the seat-belt violation and stopped them. While
Ms. Atwater and her children remained in her vehicle,
Officer Turek approached, then stood by the driver's window
and aggressively jabbed his finger toward her face. Officer
Turek screamed either that they had met before or that they
had had this conversation before. (R. 38 1-82, 384, 703).
Officer Turek's conduct frightened Ms. Atwater's children
and they began to cry; she then calmly and in a normal tone
of voice requested that Officer Turek lower his voice. (R.
382, 703). Officer Turek responded by telling Ms. Atwater
that she was going to jail. (R. 382).

There is no evidence in this summary judgment
record indicating in any way that Gail Atwater was sarcastic
or belligerent, or that she challenged Officer Turek's
authority. (R. 3 88-89, 414). Ms. Atwater was not under the
influence of drugs or alcohol. She was not acting suspicious in
any way, she did not pose any threat to Officer Turek, and
she was not engaged in any illegal conduct in the officer's
view, other than her violation of the seat belt law, when he
announced his intention to arrest her.

Despite the lack of any provocation, Officer Turek
continued to speak to Gail Atwater in a verbally abusive
manner, accusing her ofnot caring for her children. (R. 384-
85, 388-89, 704-05). Ms. Atwater's children and several
bystanders, including friends and neighborhood residents,
witnessed the incident. (R. 382, 385, 393, 399-400, 405).



-2- -3-


Officer Turek's continued verbal abuse and his
assertions that Ms. Atwater was on her way to jail caused her
children to become increasingly frightened and distressed, so
Ms. Atwater asked Officer Turek to allow her to take her
children to a friend's home just houses away. (R. 384, 704).
Officer Turek refused, and initially planned to take the
children into custody as well. (R. 384, 389, 403,427).
Luckily, a friend of the family was called to the scene by a
neighborhood child who happened to pass by, and the friend
took the children into her care. (R. 385-86, 705).

Officer Turek claimed he had recently stopped Ms.
Atwater for not having her children in seat belts (R. 420),
but this was false. (R. 379, 405, 703-07). Officer Turek had
stopped her several weeks before for allowing her son Mac
to ride on the front seat arm rest, but his seat belt had been
securely fastened. (R. 379, 703). No citation was issued, and
Officer Turek had not told her the basis for making the
traffic stop. (R. 379).

Police officers in Texas, as in other states, may issue
tickets after stopping motorists for traffic violations. Tex.
Transp. Code Ann. 543.003-.005 (West 1999). Rather
than doing this, Officer Turek placed Ms. Atwater under full
custodial arrest.1 He handcuffed her with her hands behind
her


Officer Turek later claimed that he had also arrested Ms.
Atwater for not carrying a driver's license and proof of
insurance. (She had neither with her because her purse had
recently been stolen.) Officer Turek's claim is inconsistent with
his pronouncement, before requesting her license or proof of
insurance, that he was taking her to jail. It is also
disingenuous because Ms. Atwater provided him with her
driver's license number, and Officer Turek had seen both her
license and proof of insurance during the previous stop. Be
that as it may, even if Officer Turek's
back, loaded her into his squad car, and took her to the
police station. (R. 386). At the police station, she was
forced to remove her shoes, jewelry and glasses, and empty
her pockets. Ms. Atwater's "mug shot" was
taken, and she was placed in a jail cell for
approximately one hour until being taken before a
magistrate. (R. 386-88, 706). She was released after posting
a $310 bond. (R. 424).

Gail Atwater pled no contest to the seat belt offense
and paid the maximum penalty for this violation a $50
fine. Charges of driving without a license and proof of
insurance, see supra, note 1, were dismissed.

II. The Proceedings Below

Petitioners Gail Atwater and her husband Michael
Haas, as next friend for their children, filed suit in state
court against respondents, the City of Lago Vista, Officer
Bart Turek, and Chief of Police Frank Miller, for
damages suffered by petitioners arising from Ms. Atwater's
incarceration.

Respondents removed the suit to the United States
District Court for the Western District of Texas, which
granted their motion for summary judgment. The district
court ruled that petitioners had not identified a
constitutional right that had been violated by the custodial
arrest. See Pet. App. C.


after-the- factjustification is accepted, the penalties for
these offenses are also minor fines. See Tex. Transp. Code
Ann. 521.025(c), 601.191(b) (West 1999). Furthermore,
it is a defense to prosecution if the person charged thereafter
produces a valid license and proof of insurance (as
Officer Turek well knew that Ms. Atwater
would be able to do). See Tex. Transp. Code
Ann. 521.025(d), 601.193 (West 1999). Officer Turek's
contention has no bearing on the Fourth Amendment issue.



-4- -5-


A three-judge panel of the United States Court of
Appeals for the Fifth Circuit reversed
the summary judgment with respect to the Fourth
Amendment claim, holding petitioners had established that
the custodial arrest for not wearing a seat belt violated a
clearly established Fourth Amendment right. The
remainder of the district court's judgment
was affirmed. See Pet. App. B.

The Fifth Circuit granted rehearing en banc and
vacated the panel's decision. After oral
argument, a majority affirmed the district
court's judgment in all respects, holding that the custodial
arrest did not violate Ms. Atwater's Fourth Amendment
rights. Six judges dissented. See Pet.
App. A.

SUMMARY OF THE ARGUMENT

Gail Atwater was handcuffed and taken to jail because
she and her children were not wearing
their seat belts. Placing Ms. Atwater
under custodial arrest for this fine-only traffic
offense violated the Fourth Amendment's requirement that all
seizures be reasonable.

Determining whether a particular governmental
action violates the Fourth Amendment requires first asking
whether the action would have been prohibited at common
law when the Fourth Amendment was adopted. If the answer
is unclear, then reasonableness is evaluated by balancing the
degree of the intrusion on the individual against the degree to
which the intrusion is necessary to further a legitimate
governmental interest. See Wyoming v. Houghton, 526
U.S. 295, 299-300 (1999).

Applying this analysis demonstrates that the
custodial arrest here violated the Fourth Amendment. The
Fourth Amendment was adopted in response to the use of
general
warrants and writs of assistance to prevent the very sort of
unbridled discretion that the court below condones. The
arrest here would also have been unlawful when the Fourth
Amendment was adopted because warrantless arrests were not
permitted for misdemeanors unless they were breaches of the
peace. Furthermore, even if history is viewed as providing no
clear answer, balancing the competing interests does:
handcuffing Ms. Atwater in front of her children and taking
her to jail furthered no legitimate law enforcement objective
that could not also have been accomplished by issuing a
traffic citation.

Instead of applying the analysis mandated by this
Court's precedents, the court below created a broad per se
rule blessing all custodial arrests as long as there is
probable cause to believe that an offense has occurred. This
Court has never held this to be the law, and the holding below
ignores and undermines decisions of this Court. There is,
however, a rule that would be good public policy, be
consistent with this Court's precedents, and satisfy the
Fourth Amendment's requirement of reasonableness: The
Fourth Amendment prohibits custodial arrests for fine-only
traffic offenses except when the arrest is necessary for
enforcement of the traffic laws or when the offense would
otherwise continue and pose a danger to others on the road.

ARGUMENT

I. Both the History Leading to the Fourth
Amendment's Adoption and Founding-Era Rules
Governing Warrantless Arrests Make Clear that the
Custodial Arrest Here Was Unconstitutional

In determining Fourth Amendment reasonableness,
this Court has reviewed the history leading to the Fourth



-6- -7-


Amendment's adoption and inquired whether a specific
seizure would have been unlawful at the time of the Fourth
Amendment's adoption. In fact, this Court conducted just
such a detailed historical review in one of its last major
decisions that considered whether a warrantless public arrest
complied with the Fourth Amendment. See United States v.
Watson, 423 U.S. 411, 418-20 (1976). An historical inquiry
demonstrates the court of appeals' error. The Fifth Circuit
erred in holding police officers have unfettered discretion,
rivaling that of colonial officers acting under general
warrants or writs of assistance, to arbitrarily select which
drivers to jail for traffic offenses, and by ignoring the
founding-era rule that prohibited warrantless
misdemeanor arrests except for breaches
of the peace.

A. The Fourth Amendment Was Adopted to
Check Unfettered Discretion of the Sort
Given by General Warrants and Writs of
Assistance to Conduct Searches and Seizures
Arbitrarily

This Court has repeatedly recognized the events that
gave birth to the Fourth Amendment: a rejection of the use
of general warrants in England and writs of assistance in
colonial America. See, e.g., Warden v. Hayden, 387 U.S.
294, 301 (1967); Henry v. United States, 361 U.S. 98,
100-01 (1959); Bovdv. United States, 116 U.S.
616,624-626(1886). General warrants and writs of assistance
were offensive to colonial Americans because they gave
governmental officials unbridled discretion to conduct
arbitrary searches and seizures. The Fourth Amendment was
a direct response to these abuses, and sought to curtail this
discretion.
1. John Wilkes and the rejection of
general warrants in England

General warrants gave those using them complete
discretion as to whom to arrest, where to search, and for
what to search. General warrants became the focus of public
attention in England in the 1 760s with the searches and
arrests associated with John Wilkes' anti-government
pamphlets. See Telford Taylor, Two Studies in
Constitutional Interpretation 29-35 (1969);
Nelson B. Lasson, The History and Development
of the Fourth Amendment to the United
States Constitution 43-48 (1937); 2
William J. Cuddihy, The Fourth
Amendment:
Origins and Original Meaning 886-950 (1990)
(unpublished Ph.D. dissertation, Claremont Graduate School).

With the legal victories of Wilkes and his supporters
came court decisions condemning the broad discretion
granted by general warrants. For example, in declining to set
aside a 300 damage award as excessive for a journeyman
printer's wrongful arrest and six-hour imprisonment, Chief
Justice Pratt wrote that the jury was justified in awarding the
damages to condemn the arbitrary exercise of power that the
arrest represented: "[The jury] saw a magistrate over all the
King's subjects, exercising arbitrary power, violating Magna
Charta, and attempting to destroy the liberty of the
kingdom, by insisting upon the legality of this general
warrant before them." Huckle v. Money, 2 Wils. K.B. 205,
207, 95 Eng. Rep. 768, 769 (K.B. 1763).

Pratt expanded on these concerns in Wilkes' own
trespass suit against the undersecretary of state who
supervised the search of Wilkes' house, holding that
"discretionary power given to messengers to search wherever
their suspicions may chance to fall" would "affect the person
and property of every man in this kingdom, and is totally
subversive of the liberty of




-8- -9-


the subject." Wilkes v. Wood, 19 Howell St. Tr. 1153,
1167,98 Eng. Rep. 489, 498 (C.P. 1763); see also Leach v.
Money, 19 Howell St. Tr. 1001, 1027, 97 Eng. Rep. 1075,
1088 (K.B. 1765) (Mansfield, J.) ("It is not fit, that the
receiving orjudging of the information [regarding cause to
arrest or search] should be left to the discretion of the
officer.").

These and other judicial repudiations of general
warrants in England did not go unnoticed in America. Wilkes
was a hero to the colonists and his resistance to the general
warrants an inspiration that had a strong influence on the
framing of the Fourth Amendment. See Akhil Reed Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757,
772 (1994) (describing Wilkes as "the paradigm search and
seizure case for Americans," "whose lesson the Fourth
Amendment was undeniably designed to
embody.").

2. Challenges to writs of assistance in
colonial America

At about the same time John Wilkes and others were
challenging the use of general warrants in England,
American colonists were challenging the use of writs of
assistance by British customs officers. The writs gave
officials using them even greater discretion than the general
warrants used against Wilkes and his compatriots. Any
person authorized by a writ of assistance had almost limitless
powers to search. All officers and subjects of the Crown were
commanded to assist in the execution of the writs, and the
writs expired only on the reigning sovereign's death. See
Lasson, supra. at 53-54.
supra, at 53-54. Otis challenged the broad discretion the
writs gave customs officers, arguing that they were "the
worst instrument of arbitrary power, the most destructive of
English liberty, and the fundamental principles of the
constitution, that ever was found in an English law book." 2
Legal Papers of John Adams 140 (L. Kinvin Wroth
& Hiller B. Zobel eds., 1965). "It is a power that places the
liberty of every man in the hands of every petty officer."
Id. at 141-42. Otis and his merchant clients lost their legal
battle, but their challenge inspired Americans to resist
British rule, culminating with the Declaration of
Independence.2

The condemnation of discretionary
arrest and search authority voiced by Pratt and
Otis was repeated when colonial judges later refused to issue
general writs after their authorization by the Townsend Act
of 1767. The colonial judges consistently condemned such
writs as illegal precisely because they purported
to confer discretionary authority on
officers. See Thomas Y. Davies, Recovering the
Fourth Amendment, 98 Mich. L. Rev. 547, 5 56-57 (1999).

The battles against general warrants and writs of
assistance were still fresh in the minds of Americans when
they were considering whether to adopt a new Constitution.
Many were concerned that the new Constitution contained
no bill of rights, and specifically no provision curbing broad
discretion to search and seize. Anti-federalist opponents to
the Constitution argued that it would not restrict agents of
the new federal government from conducting arbitrary and
invasive searches.




In February 1761, after the writs had expired
following the death of King George II, sixty-three Boston
merchants brought suit to halt the issuance of new writs of
assistance. The merchants were represented by James Otis,
Jr. See Lasson,
2 A young John Adams was a spectator in the
packed

courtroom during Otis' argument. See Lasson, supra, at 5 8-
59. He later described the argument as one of the key events
leading to the American Revolution. Id. at 59-61.



-10- 11


See generally Lasson, supra, 92-96; 3 Cuddihy, supra, at
1361-1416.

Search and seizure was addressed in at least seven of
the state conventions that considered the Constitution, and
the last four voting to ratify the Constitution requested that
a search and seizure provision be added. See 3 Cuddihy,
supra, at 1380. Of course, the provision ultimately
adopted did not ban just general warrants, but any
"unreasonable" search or seizure of a similarly arbitrary
nature. See U.S. Const. amend. IV; Lasson, supra, at 103.

3. The Fourth Amendment repudiated
unfettered search and seizure
discretion

Because of the familiar history leading to the Fourth
Amendment's adoption, this Court has recognized that the
principle aim of the Fourth Amendment is to limit law
enforcement discretion, and thereby prevent arbitrary
searches and seizures. The basic purpose of this Amendment,
as recognized in countless decisions of this Court, is to
safeguard the privacy and security of
individuals against arbitrary invasions by
governmental officials." Camara v. Municipal Court, 387
U.S. 523, 528 (1967); see also Delaware v. Prouse, 440
U.S. 648, 661 (1979). Numerous legal commentators also
have recognized that the primary aim of those adopting the
Fourth Amendment was to limit governmental discretion.
See, e.g., Davies, supra, at 556; Tracey Maclin, The
Central Meaning of the Fourth Amendment, 35 Win.
& Mary L. Rev. 197, 201 (1992); Barbara C. Salken,
The General Warrant of
-the Twentieth Century? A Fourth
Amendment Solution to UncheckedDiscretion
toArrestfor Traffic Offenses, 62 Temple L. Rev. 221,
222 (1989).
B. Warrantless Arrests Could Only be Made
for
Felonies and Breaches of the Peace
Committed in the Presence of the Arresting
Official

This Court has also considered whether a specific
seizure would have been unlawful at the time of the Fourth
Amendment's adoption to determine whether the seizure
complies with the Amendment. See, e.g., United States v.
Watson, 423 U.S. 411, 418-20 (1976); Carroll v. United
States, 267 U.S. 132, 149 (1925). Contemporary common-
law rules limited the discretion of peace officers to arrest for
minor crimes. The founding-era rule was that an arrest could
only be made for a misdemeanor when it was ongoing and a
breach of the peace:

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

Carroll, 267 U.S. at 157 (quoting Halsbury's Laws of England,
vol.9, part. III, 612); see also Davis v. United
States, 328 U.S. 582,610 n.4 (1946) (Frankfurter, J.,
dissenting) ("The common law rule restricted arrest without
warrant for a misdemeanor to those acts which were breaches
of the peace.").

Breach of the peace was a category of non-felony
public offenses involving or tending toward violence. Sir
Matthew Hale listed "breaches of the publick Peace" as one
of three






-12- -13-


categories of "[ojffenses of an Inferior nature."3 Matthew
Hale, Pleas of the Crown 134 (2d ed. 1678). The
category consisted of affrays, riots, forcible
entries, barretries and riding armed. Id.; see also I
William Hawkins, A Treatise of the
Pleas of the Crown 126 (1716) ("Inferior Offenses
more immediately against the Subject, not capital, either
amount to an actual Disturbance of the Peace, or do not.").
William Blackstone also distinguished "Offenses against the
Public Peace," discussed in volume four, chapter eleven of
his Commentaries, from lesser categories of offenses, such
as "Offenses against the Public Health, and the Public Police
or Oeconomy," which were the subject of chapter thirteen.
See 4 William Blackstone, Commentaries on the Laws ofEn
gland, 142-53, 161-75 (1769).
repeated in legal treatises,4 legal dictionaries,5 and the
handbooks used by the officials required to apply the rule.6

The authority to arrest without a warrant for
breaches of the peace was based on the nature of the
offenses, i.e., that they were violent public disturbances
or threats thereof. As Chief Justice Taft explained for the
Court in Carroll v. United States, the purpose of arresting
for breaches of the peace was not to enable apprehension of
criminals (the basis for warrantless felony arrests), but to
bring an end to the breach of the peace. Carroll, 267 U.S. at
157; see also Francis H. Boblen & Henry Shulman, Arrest
With and Without a Warrant, 75 U. Pa. L. Rev. 485, 490
(1927); see generally City of Chicago v.




This continued to be the generally accepted
definition into the nineteenth century. See, e.g., I John
Bouvier, A Law Dictionary 146 (1839) (defining "breach of
the peace" as "[a]ny offense against public tranquility, when
accompanied by violence."); see also Rollin M. Perkins, The
Law ofArrest, 25 Iowa L. Rev. 201, 230(1940) (defining
breach of the peace as "a public offense done by violence or
one causing or likely to cause an immediate disturbance of
public order.").

The limitation of warrantless arrests to felonies and
ongoing breaches of the peace was well-settled prior to the
Fourth Amendment's adoption. "[A] constable cannot arrest,
but when he sees an actual breach of the peace; and if the
affray be over, he cannot arrest." Regina v. Tooley, 2 Ld.
Raym. 1296, 1301,92 Eng. Rep. 349, 352 (K.B. 1710). The
rule was




The other two categories of inferior offenses were
"Deceipts and Conzenage," and "Nusances." Matthew Hale,
Pleas of the Crown 134 (2d ed. 1678).

-14-
See, e.g., Matthew Hale. Pleas of the Crown 92
(2d ed. 1678); 2 William Hawkins, A
Treatise of the Pleas of the Crown 75, 77
(1721); 4 William Blackstone, Commentaries on the
Laws of England 289 (1769).

"None shall be arrested for Debt, Trespass &c.
or other Cause of Action, but Virtue of a Precept or
Commandment out of some Court: But for Treason, Felony,
or Breach of the Peace, any Man may arrest without
Warrant or Precept." Giles Jacob, A New-Law Dictionary
(7th ed. 1756) (definition of "arrest"); see also J.
Johnson, Les Termes de Ia Ley 38 (1st Am. ed. 1812) (same
definition for "arrest").

6 See, e.g., The Conductor Genera Its 25 (Hugh
Game ed., New York 1788) (limiting a constable's
warrantless arrest power to felons and for a "breaker of the
peace in his view"); Francois-Xavier Martin, The Office
and Authority of a Justice of the Peace, and of Sheriffs,
Coroners, &c. According to the Laws of the State of North-
Carolina 45 (1791) ("In all criminal cases, where any one is
in danger of lfe, or member, any private man may arrest another,
without process or warrant ) (emphasis added); Eliphalet
Ladd, Burn's Abridgment, or the American Justice 40-41
(1792).

-15-





Morales, 527 U.S. 41, 106-08 (1999) (Thomas, J.,
dissenting) (describing police officers' common-law
"responsibility for preserving the peace").

For other misdemeanors that did not involve public
disturbances or actual or threatened violence, there was no
need for an exception to the warrant requirement. In fact,
one of the bases for distinguishing misdemeanors from
felonies at common law was that, unlike a felony, an arrest
could not be made for a misdemeanor without a warrant
unless it was an ongoing breach of the peace. See 9
Encyclopaedia of the Laws of England 268 (2d ed. 1908)
(defining "misdemeanor"). Immediate arrests were not seen
as necessary for misdemeanors. For this reason, a summons
was used to initiate the criminal process for a misdemeanor
charge, unlike a felony charge, which began with the issuance
of an arrest warrant.7

In other contexts, "breach of the peace" had a
broader meaning that encompassed any violation of the
criminal law,


~ James Wilson, a signatory of both the Declaration
of Independence and the Constitution, and also an early
member of this Court, recognized this distinction:
synonymous with the phrase "breach of the king's peace,"i
but the phrase was used in its narrow sense when describing
the power to arrest. See 11 Encyclopaedia of the Laws of
England 3 (2d ed. 1908). In fact, founding-era dictionaries
distinguished the term "peace," which was associated with
the powers of justices of the peace to prevent public
disturbances, from the phrase "peace of the king." See, e.g.,
T. Cunningham, A New and Complete Law-Dictionary (1783
ed.) (definitions of "Peace" and "Peace of the King"); 5
Giles Jacob, The Law-Dictionary 112-13 (Am. ed. 1811)
(entries for "Peace" and "Peace of the King"). The
distinction continued to be recognized during the eighteenth
century. Compare 1 John Bouvier, A Law Dictionary 190
(11th ed. 1865) (defining "breach of the peace"), with 2
John Bouvier, A Law Dictionary 322 (11th ed. 1865)
(defining "pax regis" and "peace").

Following the Fourth Amendment's ratification, the
common law rule was well-settled for roughly the first one
hundred years of the Republic. Through most of the
nineteenth century, courts continued to hold that a
warrantless misdemeanor arrest was unlawful when not a
breach of the peace.9 Nineteenth-century American legal
commentators were




On an indictment for any crime under the degree of
treason or felony, the process proper to be first
awarded, at the common law, is a venire facias,
which, from the very name of it, is only in the nature
of a summons to require the appearance of the
party.
On an indictment for felony or treason, a capias
is
- always the first process.

2 Works ofJame.s Wilson 689-90 (Robert G. McCloskey,
ed. 1967).
Wilson noted that it was "now the usual practice" in England
to issue
a capias even for misdemeanors, but he indicated no
similar change
in this country. Id. at 690.
phrase was used in this broader sense when it
appeared on a criminal indictment.

~ See, e.g., Pow v. Beckner, 3 md. 475, 478
(1852) ("To justify a constable in apprehending without
process for an affray, the affray must take place in his view
and be still continuing. After it is over he has no more
power to arrest the offenders than any other person.");
Commonwealth v. Carey, 66 Mass. (12 Cush.) 246, 250
(1853) ("[E]ven if he were a constable, he had no power to
arrest for any misdemeanor without a warrant, except to
stay a breach of the peace, or to prevent the commission of
such an offense); Robison v. Miner, 68 Mich. 549,
556-59, 37 N.W. 21, 25 (1888) (holding



-16- -17-


no different, and in fact, some stated the rule as prohibiting
all warrantless misdemeanor arrests. William L. Murfee, A
Treatise on the Law of Sher ifs and Other Ministerial Officers
1161, at 629-30 (1884). Other treatises limited
warrantless misdemeanor arrests to offenses involving public
violence.10

By the early twentieth century, courts had begun to
ignore the breach-of-the-peace requirement," and legislation
in many states pennitted warrantless arrests for any
misdemeanor committed in an officer's presence. See T.W.
Hughes, A Treatise on Criminal Law and Procedure
876, at 597 (1919). Obviously, these alterations to the
common law a century or more after the Fourth
Amendment's adoption provide no insight into the
understanding of the Amendment when it was ratified.

Moreover, these changes to the common law rule
were made by state courts and legislatures before this Court
held the Fourth Amendment applied to the states. See Wolf v.
Colorado, 338 U.S. 25, 27-28 (1949). They therefore do not
constitute legislative opinions on their constitutionality.
Because the Fourth Amendment did not apply to the states,
state legislatures would not have been concerned whether
their legislation met



unconstitutional the portion of a liquor law that deemed its
violations to be breaches of the peace and permitted
warrantless arrests); see also Bohlen & Shulman, supra, at
486 & n.3 (citing cases).

iO See also 1 Joseph Chitty, A
Practical Treatise on the Criminal Law 15 (1st
Am. ed. 1819); John G. Crocker, The Duties of
Sherifs. Coroners and Constables 48, at 33 (2d
ed. 1871).

Contemporary commentators perceived those
courts to be misreading this Court's decision in Carroll v. Un
ited St at es, 267 U.S. 137 (1925). See Bohlen & Shulman,
supra, at 487-883.
Fourth Amendment standards. Moreover, to hold that post-
Fourth-Amendment- adoption alterations to the common
law by states are relevant when made before the Fourth
Amendment applied to the states would permit state
legislatures to preemptively nullify federal constitutional
rights before they applied to them. ~'f Dickerson v. United
States, 530 U.S____ slip op. at 1 (June 26, 2000)
(rejecting the argument that an Act of Congress vitiated
Miranda because "a constitutional decision
may not be in effect overruled by an Act of Congress").

C. Because Officer Turek's Arrest of Gail
Atwater Would Have Been Unlawful
When the Fourth Amendment Was
Adopted, the Arrest Was
Unconstitutional

Gail Atwater was not breaching the peace when she
and her children rode in her truck at fifteen-miles-per-hour
unrestrained by seat belts. Though there may be traffic
offenses that qualify as breaches of the peace, this is not one
of them.

Non-use of seat belts is not, by any stretch of the
imagination, a public disturbance or an act likely to incite
violence in others. It is not even a public offense. Unlike
many traffic offenses, violations of the Texas seat-belt law
have virtually no impact on other drivers. As the three-judge
panel of the Fifth Circuit astutely observed, the seat-belt law
is one of several "paternalistic statutes" that Texas and many
states have adopted "to protect a specific individual from his
own conduct, conduct which poses no threat to the public at
large." Atwater v. City ofLago Vista, 165 F.3d
380,385 (5th Cir. 1999) (panel), Pet. App. B at 37a. It is
difficult if not impossible to conceive of a traffic violation
that is further from a breach of peace than the seat-belt law.


-18- -19-


Furthermore, the common law justification for
warrantless breach-of-the-peace arrests is wholly absent in
this case. There is no indication that a custodial arrest was
necessary to prevent the offense from continuing. In fact,
the record indicates the opposite. Ms. Atwater told her
children that the policeman was right, and they had broken
the law by not wearing their seat belts. (R. 384).

At a minimum, the Fourth Amendment prohibits
seizures that were unlawful at the time of the Amendment's
adoption. Wyoming v. Houghton, 526 U.S. 295, 299 (1999);
see also County ofRiverside v. McLauglin, 500 U.S. 44, 60-6
1 (1991) (Scalia, J., dissenting) (citing California v. Hodari
D., 499 U.S. 621 (1991)). Because the arrest of Gail Atwater
would not have been permitted by founding-era common-law
rules, her arrest violated the Fourth Amendment.

D. The Decision Below Is Contrary to the
Fourth Amendment Because It Grants
Law
Enforcement Unfettered Discretion to
Search
and Arrest of the Sort the Fourth
Amendment Was Meant to End

The court below not only ignores the nature of the
offense for which Ms. Atwater was arrested, but also leaves to
the complete discretion of every police officer whether to use
custodial arrests for any traffic violation. The Fifth Circuit
thereby gives law enforcement the very sort of broad
discretion to commit arbitrary searches and seizures that the
Fourth Amendment sought to end.

Because of the immense number of traffic laws, it is
virtually impossible for any person to drive for any
significant distance without committing some infraction. See,
e.g., Salken, supra, at 223. Violations of traffic laws are
numerous. 1993
Department of Transportation statistics indicated that 50%
of all vehicles at any time were violating the then-maximum
speed limit of 55 miles per hour, with 71% of the vehicles
speeding on urban interstates, and 80% on rural interstates.
See U.S. Dep't of Transportation, National Maximum Speed
Limit --Fiscal Year 1993: Travel Speeds, Enforcement Efforts,
and Speed-Related Highway Safety Statistics tbls. 1 & 3 (Oct.
1995). More recently, seven out often drivers admitted in an
official survey that they had run a red light at least once in
the past year. See 2 U.S. Dept. of Transportation, National
Highway Traffic Safety Administration, National Survey of
Speeding and Other Unsafe Driving Actions 119(1998)
(report no. DOT HS 808 749). Violations of seat belt laws are
also fairly common. At any given time, almost one-third of
vehicle occupants are not using their seat belts. 2 U.S. Dept.
of Transportation, National Highway Traffic Safety
Administration, 1998 Motor Vehicle Occupant Safety Survey
20 (2000) (report no. DOT HS 809 051).

An observant police officer can come up with a
traffic violation for almost any vehicle. See, e.g., United
States v. Smith, 80 F.3d 215. 219 (7th Cir.
1996) (condoning a traffic stop based on the officer's belief
that an air freshener hanging from the rear view mirror of a
car amounted to a material obstruction between the driver and
the windshield in violation of Illinois law). This means police
officers are left to choose which laws to enforce, and against
which drivers to enforce them:

[G]iven the pervasiveness of such minor [traffic]
offenses and the ease with which law enforcement
agents may uncover them in the
conduct of virtually everyone, [probable
cause for a traffic violation] hardly matters, for here as
well there exists 'a power that places the liberty of every
man in the hands of




-20- -21-


every petty officer,' precisely the kind of arbitrary
authority which gave rise to the Fourth Amendment.

I Wayne R. LaFave, Search and Seizure, 1.4(e), at 123
(3d ed. 1996) (quoting 2 Legal Papers of John Adams 141-
42 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)).

Petitioners do not challenge police discretion to
selectively make stops for traffic violations they observe.
State legislatures have determined that various traffic laws
help insure safer roads and highways, and police should
enforce those laws by making traffic stops and issuing
citations for their violation. See Whren v. United States, 517
U.S. 806, 818 (1996) ("[WIe are aware of no principle that
would allow us to decide at what point a code of law becomes
so expansive and so commonly violated that infraction itself
can no longer be the ordinary measure of the lawfulness of
enforcement."). Giving police the discretion to choose
which violations to enforce and choosing which vehicles to
stop is an acceptable concession to permit enforcement of
these laws, even though that means traffic stops may be
made for pine tree air fresheners hanging from vehicle
windshields. But there is no reason to grant a similar degree
of discretion to handcuff and take people to jail for those
same minor violations.

Those who insisted on a bill of rights with a
provision prohibiting unreasonable searches and seizures
likely would be amazed at the freedom and lifestyle enabled
by motor vehicles. They also would be shocked that
regulation of these motor vehicles is used as an excuse to
grant law enforcement almost unlimited discretion to search
and seize. Such discretion may be acceptable to permit
enforcement by issuance of traffic citations, but not when
the discretion includes whether or not to place a person
under custodial arrest.
The decision below ignored the common law
altogether and turned the historical basis of the Fourth
Amendment on its head. Granted, many things have changed
since 1791. Organized police forces were unknown in
colonial times, as were motor vehicles. Furthermore, many
state courts and legislatures abandoned the breach-of-the-
peace requirement during the 20th century, thereby lessening
the protections afforded by the common law. Still, the evils
for which the Fourth Amendment was adopted and the
protections afforded by the common law should not be
ignored. Balancing the competing interests shows there is no
reason for doing so here.
II. Balancing the Competing Interests of Law
Enforcement and the Individual Demonstrates
that
the Custodial Arrest of Ms. Atwater for Non-
Usage
of Seat Belts Was Constitutionally
Unreasonable

The Fourth Amendment's over-arching command is
that all searches and seizures must be reasonable. "The
touchstone of our analysis under the Fourth Amendment is
always 'the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal
security."' Maryland v. Wilson, 519 U.S. 408, 411
(1997) (quoting Pennsylvania v. Mimms, 434 U.S.
106, 108-09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19
(1968))). The Fourth Amendment reasonableness of a
seizure is determined by balancing the competing interests of
the government and the individual. "To determine the
constitutionality of a seizure, '[wje must balance the nature
and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion."
Tennessee v. Garner, 471 U.S. 1, 8(1985) (quoting United
States v. Place, 462 U.S. 696, 703 (1983); citing Delaware
v. Prouse, 440 U.S. 648, 654 (1979); United States v.
Martinez-Fuerte, 428 U.S. 543, 555 (1976)).



-22- -23-


For Gail Atwater, the seizure and subsequent searches
to which she was subjected were an extreme intrusion and
disruption of her life and the life of her children. No
legitimate law enforcement objective or governmental
interest was furthered in any way by this conduct.

A. The Nature and Quality of the Intrusion
on Gail Atwater's Liberty Interests Was
Substantial

Gail Atwater was subjected to a custodial arrest. A
custodial arrest in any circumstance is a substantial
governmental intrusion, particularly for the average law-
abiding citizen. The circumstances of this case a mother
handcuffed and taken to jail in front of her two young
children
make the custodial arrest here particularly egregious.

1. Custodial arrests as a general
matter are significant
governmental
intrusions

A custodial arrest of a person is the quintessential
seizure. See California v. Hodari D.,499 U.S. 621, 624
(1991) (citing Henry v. United States, 361 U.S. 98, 100
(1959)). The Fourth Amendment therefore requires that it be
reasonable. See Payton v. New York, 445 U.S. 573, 585
(1980). This Court has used the term "custodial arrest" to
describe seizures where the person is not just detained, but
taken into custody and transported to the police station.
E.g.. Knowles v. Iowa, 525 U.S. 113, 117(1998); United
States v.Robinson,414U.S.227, 234-35 (1973).

A custodial arrest is a particularly significant
governmental intrusion on an individual's liberty interest.
The degree of the intrusion an arrest involves is readily
apparent
when compared with a routine traffic stop. A traffic stop "is
a relatively brief encounter and 'is more analogous to a so-
called "Terry stop" ... than to a formal arrest."' Knowles v.
Iowa, 525 U.S. 113, 117 (1998) (quoting Berkemer v.
McCarty, 468 U.S. 420, 439 (1984)). The typical traffic
stop, although a Fourth Amendment seizure, often is no
more than an inconvenience, in which the motorist "will be
obliged to spend a short period of time answering questions
and waiting while the officer checks his license and
registration, ... may then be given a citation, but [expects] that
in the end he most likely will be allowed to continue on his
way." Berkemer, 468 U.S. at 437; but see
Maryland v. Wilson, 519 U.S. 408, 422 (1997)
(Kennedy, J., dissenting) ("Traffic stops, even for minor
violations, can take upwards of 30 minutes."). Unlike a
custodial arrest, a traffic stop is not a complete suspension of
an individual's freedom. The person remains in or near his or
her car, which is a less threatening and more familiar setting
than a police station house or a jail cell.

A custodial arrest is likewise far more intrusive than
most searches, especially a vehicle search or a Terry frisk. An
arrest is "a wholly different kind of intrusion upon individual
freedom from a limited search for weapons." Terry v. Ohio,
392 U.S. 1, 26 (1968). As Justice Powell observed:

A search may cause only annoyance and temporary
inconvenience to the law-abiding
citizen, assuming more serious dimension only
when it turns up evidence of criminality. An arrest,
however, is a serious personal intrusion regardless of
whether the person seized is guilty or innocent.
Although an arrestee cannot be held for a significant
period without some neutral determination that there
are grounds to do so, no decision that he should go free




-24- -25-


can come quickly enough to erase the invasion of his
privacy that already will have occurred.

United States v. Watson, 423 U.S. 411,428(1976) (Powell, J.,
concurring) (citations omitted) (emphasis added). The
custodial arrest, not the search incident to the arrest, "is the
significant intrusion of state power into the privacy of one's
person." United States v. Robinson, 414 U.S. 218, 237
(1973) (Powell, J. concurring).

The significance of custodial arrests is sometimes
overlooked because the focus often is on the search rather
than the arrest. This is usually the case when the Fourth
Amendment challenge is raised with the hope of triggering
application of the exclusionary rule. For the criminal seeking
to exclude otherwise admissible evidence, the search most
surely is the utmost concern. But the perspective of the
average citizen is the focus of Fourth Amendment balancing,
not the perspective of the career criminal. See Florida v.
Bostick, 501 U.S. 429,438(1991) ("the 'reasonable person'
test presupposes an innocent person") (citing Florida v.
Royer, 460 U.S. 491, 519 n.4 (1983) (Blackmun, J.,
dissenting)). For the average citizen, who is always subject to
a possible traffic stop for a myriad of reasons, a search is an
annoyance. A custodial arrest is a nightmare.

A custodial arrest typically entails physical restraint
at the outset. See Graham v. Connor, 490 U.S. 386, 396
(1989) (recognizing that "the right to make an arrest ...
necessarily carries with it the right to use some degree of
physical coercion"). At a minimum, this restraint usually
comes in the form of handcuffing, followed by physically
placing the individual in the back of a locked police car for
transportation to the booking station.
Once at the booking station, the arrestee is subjected
to the booking process, usually including fingerprinting and a
"mug shot." Valuables are taken away, and the person is
placed in ajail cell. As an incident to the arrest, the arrestee
is almost always subjected to a search of his or her person,
and may be subjected to more extreme invasions, such as
body cavity searches. An arrestee may be detained for as
long as 48 hours before a probable cause determination is
made by a magistrate. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56-57 (1991). If unable to post
the bond set by the magistrate,'2 the arrestee will languish in
jail until a scheduled court date.

Significantly, pre-trial detention often places
multiple detainees in a single holding cell, thus mingling
traffic violators with persons arrested for much more serious
offenses who pose a risk of physical harm to the traffic-
offense arrestee. Most, if not all, liberty interests and
expectations of privacy are lost as an incident to pre-trial
detention. "The fact of arrest and incarceration abates all
legitimate Fourth Amendment privacy and possessory
interests in personal effects, and therefore all searches and
seizures of the contents of an inmate's cell are reasonable."
Hudson v. Palmer, 468 U.S. 517, 538 (1984) (O'Connor, J.,
concurring) (citations omitted).

The harm from a custodial arrest lingers long after
the detention ends. See, e.g., Terry v. Ohio, 392 U.S. 1, 26
(1968) (observing that a custodial arrest "is inevitably
accompanied by future interference with the individual's
freedom of movement, whether or not trial or conviction
ultimately follows."). The record of the arrest may linger
even when there ultimately is an acquittal, and even if no
charges are ever brought against the



!2 Ms. Atwater was required to post a $3 10 bond to
get out ofjail for a $50 offense. (R. 424).



-26- -27-


arrestee. Further, arrest records are easily accessible by the
public, and may close the door on a broad array of
employment opportunities. See William A. Schroeder,
Warrantless Misdemeanor Arrests and the Fourth
Amendment, 58 Mo. L. Rev. 771, 797 (1993); Salken,supra,
at 264. In fact, Texas tort law discourages employers from
hiring persons with arrest records. See Read v. Scott Fetzer
Co., 990 S.W.2d 732, 734 (Tex. 1998).

An arrest following a traffic stop is an even greater
governmental intrusion. An arrest for a traffic violation
comes as a particularly great shock to a driver, whose
expectation is that, at most, it will end with a traffic
citation. See Berkemer, 468 U.S. at 437. Also, the arrest is
commonly a public spectacle, made on the side of a public
road in full view of all passers by.

The searches that may accompany the arrest also are
more intrusive when a custodial arrest follows a traffic stop.
The search incident to arrest encompasses notjust the person
of the arrestee, but also the vehicle the arrestee had
occupied. See New Yorkv. Belton, 453 U.S. 454,460-
61(1981). The vehicle is frequently impounded, and
reacquisition requires payment of impoundment fees
regardless of whether a criminal charge follows the arrest.
The vehicle then may be subjected to a more thorough
search in which the vehicle's contents are inventoried. See
Colorado v. Bertine, 479 U.S. 367 (1986).

2. The custodial arrest of Gail Atwater
was particularly invasive and
extreme

The arrest of Gail Atwater had all the characteristics
of a full custodial arrest. Furthermore, the arrest was
exacerbated by a police officer's humiliating a mother in
front of her two young children.
Ms. Atwater was subjected to a full-fledged custodial
arrest. Officer Turek handcuffed Ms. Atwater's hands behind
her back, loaded her into a police squad car, and then
transported her to the police station. Once at the police
station, Gail Atwater was forced to remove her shoes and
glasses, and empty her pockets, then a "mug shot" was
taken. (R. 386-88; 706). She was then placed in a cold jail
cell for approximately one hour before being taken to a
magistrate. Meanwhile, her vehicle was towed to an impound
lot in another city and its interior searched and
inventoried.13 She then had to pay an additional $110 to get
it back. (R. 400).

This arrest was particularly egregious because of the
presence of Ms. Atwater's children. The arrest began with
Officer Turek yelling at her, which subsequently included
accusations in front of her children that she was a bad
mother and did not care about her children. (R. at 384-85,
388-89, 704-05). He also implied Ms. Atwater was a liar,
again in front of her children. Officer Turek's behavior is all
the more distasteful and detrimental to Ms. Atwater's
children when it came immediately after she had explained
to her children that they were '~wrong~~ for not we~ng their
seat belts and the police officer was just "doing his job." (R.
384). Ms. Atwater's four-year-old son and six-year-old
daughter received a traumatic lesson on what this police
officer thought his job entailed.

After hearing their mother vilified by a man with a
gun, the children then watched him handcuff their mother
and take




'~ The inventory revealed the following: two tricycles,
one bicycle, one igloo cooler, two pairs of children's shoes,
toys, food, and a bag of Kingsford charcoal. (R. 426).



-28- -29-


her away.'4 And what was to become of Gail Atwater's two
young children when she was taken to jail? Ms. Atwater
begged Officer Turek to permit her to bring her children to
a friend's home a few houses away, but he refused. (R. 384,
704). Initially, he planned to take the children into
custody as well. (R. 427). Luckily, a family friend arrived,
and Officer Turek permitted her to take the children. (R.
386).

The governmental intrusion here was undoubtedly
substantial. Ms. Atwater was subjected to a full custodial
arrest which her young children were forced to witness.

B. The Government's Interest in
Enforcing the
Seat Belt Law Does Not Justify the
Intrusion
Here

Petitioners recognize that as a general matter,
government has a "'vital interest' in highway safety and
the various programs that contribute to that interest."
New York v. Class, 475 U.S. 106, 112 (1986) (citing
Delaware v. Prouse, 440 U.S. 648,658(1979)). Seat belt
laws, however, are readily distinguishable from most laws
that further highway safety:
they are "designed to protect a specific individual from his
own conduct, conduct which poses no threat to the public
at large." 165 F.3d 380, 385, Cert. Pet. App. B at 37a.
The remaining issue is whether the governmental interest
in enforcing the seat belt laws was furthered in any
conceivable way by the handcuffing and arrest of Gail
Atwater in front of her children. It was not.



was particularly harmful to the children
because they blame themselves for their mother's arrest:
they had lost a toy, and were out of their seat belts so they
could look out the windows to try to find it. (R. 380, 396).
I. The governmental enforcing the seat
relatively slight
interest in belt law is
The Texas seat belt statute is a criminal law of
relatively recent vintage. See Act of July12, 1984, 68th
Leg., 2nd C.S., ch. 1, 1, 1984 Tex. Gen. Laws 11, 12.
Indeed, seat belts were not even required in newly-
manufactured American automobiles until 1967. See Kurt
B. Chadwell, Comment, Automobile Passive Restraint
Claims Post-Cipollone: An End to the Federal Preemption
Defense, 46 Baylor L. Rev. 141, 143-44 (1994).

The gravity of the offense is an important factor
in determining the reasonableness of a search or seizure.
See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984);
McDonald v. United States, 335 U.S. 451, 459
(1948) (Jackson, J., concurring). Not wearing a
seat belt is obviously less grave of an offense than
attempted robbery, malicious wounding, or burglary of a
home, all crimes involving direct attacks on the rights of
others. Cf Winston v. Lee, 470 U.S. 753, 755-56 (1985);
Tennessee v. Garner, 471 U.S. 1, 4 (1985). It also is less
serious than drunk driving, which poses a threat to all
others on the road. Cf Welsh, 466 U.S. at 755 (Blackmun,
J., concurring). It is even less significant than a failure to
use a turn signal. Cf Whren v. United States, 517 U.S. 806,
810 (1996).

Finally, the penalty for violating the seat belt law
is minimal: a fine ranging from $25 to $50 is authorized.
Tex. Transp. Code Ann. 545.413(d) (West 1999). The
Texas Legislature intended for the fine to be the only
penalty for not wearing a seat belt, not custodial arrest and
subsequent incarceration. See Bridgestone/Firestone, Inc. v.
Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994) (the
statutory fine was meant



-30- -31-


to be "the sole legal sanction for the failure to wear a seat
belt"). Texas even bars evidence of the use or non-use of seat
belts in civil litigation. Tex. Transp. Code Ann. 545.4
13(g) (West 1999). "[T]he penalty that may attach to any
particular offense seems to provide the clearest and most
consistent indication of the State's interest in arresting
individuals suspected of committing that offense." Welsh v.
Wisconsin, 466 U.S. 740, 754 n.14 (1984). As evidenced by
the penalty imposed for a violation of the seat belt law, the
governmental interest in the law's enforcement is relatively
slight.

2. The custodial arrest furthered no
legitimate law enforcement
objective that could not also have
been accomplished by issuing a
citation

Even if the government had a stronger interest in
enforcing the seat belt laws, a custodial arrest would not
advance that interest. "The most common purpose of arrest
is to bring an actual or supposed criminal into court for
investigation or trial or to subject a convict to the penalty
previously imposed upon him by a competent tribunal."
Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201.
202 (1940). These and other justifications for a custodial
arrest usually do not apply to traffic violations.

Because the traditional justifications for custodial
arrests do not apply to most traffic offenses, issuing citations
is the preferred method for enforcing most traffic laws. "it
should be the policy of every law enforcement agency to
issue citations in lieu of arrest or continued custody to the
maximum extent consistent with the effective enforcement
of the law." American Bar Association, Standards for
Criminal Justice, 10.2-1 (2d ed. 1980). Academics have
made the same recommendation. See, e.g., 3 Wayne R.
LaFave, Search and
Seizure 5.2(g), at 91 (3d ed. 1996); Sailcen, supra, at 249
(1989); Arthur Mendelson, Arrest for Minor Traffic Offenses,
19 Crim. L. Bull. 501, 503 (1983).

In addition, approving the use of custodial arrests for
fine-only traffic offenses such as seat belt laws is counter to
the governmental interest in enforcing traffic laws: it raises
the stakes of the "routine" traffic stop, increasing the
potential danger to police officers. People should not fear
police, whose job it is to protect them. But if police have the
unfettered discretion to arrest anyone for even the slightest
criminal infraction, that will engender fear of police.
Currently the expectation of most drivers is that a traffic
stop will be brief. Because of this, traffic stops are less
adversarial than custodial arrests. "The threat to officer
safety from issuing a traffic citation . . . is a good deal less than
in the case of a custodial arrest." Knowles v. Iowa, 525 U.S.
113, 117 (1998).

If the decision below is approved by this Court, that
may change. Every driver who sees the flashing lights of a
police car in the rear view mirror will have cause to wonder if
this will be the officer who decides to handcuff and take the
driver to jail. Drivers will wonder if they will spend the next
two days in jail, and their behavior will reflect this.

3. No special circumstances were
present in this case to make a
custodial arrest necessary or
reasonable

Various factors may arise in individual traffic stops
that conceivably could make the increased governmental
intrusion of a custodial arrest "reasonable." No such factors
were present in this case. The custodial arrest did nothing to
further "the




-32- -33-


community's interest in fairly and accurately determining
guilt or innocence." Winston v. Lee, 470 U.S. 753, 762
(1985).

A custodial arrest was not necessary to secure an
appearance in court for the seat belt violation. Ms. Atwater
known by the officer to be a local resident, wife of an
emergency room physician, and mother of two young
children
posed no risk of flight. Likewise, Officer Turek confirmed
that she was a licensed driver after she presented him with
her Texas driver's license number. (R. 386). Once the officer
had made the stop, he had obtained all the evidence
necessary for prosecution of the offense. See Knowles, 525
U.S. at 118. Ms. Atwater's signature on a citation, promising
to appear, was all that was needed to insure enforcement of
the law.'5

Similarly, there was no indication that Ms. Atwater
would have refused to belt herself and her children once her
non-compliance was cited. In fact, the record strongly
indicates the opposite: she was telling her children that they
were wrong and that they all should have been wearing their
seat belts. (R. 384). But Ms. Atwater was not given the
chance to sign a promise to appear: Officer Turek
immediately announced his decision to place her under
custodial arrest. (R. 382). Whatever his motivation, from
the moment Officer Turek
stopped Ms. Atwater's truck, he made it clear that he
intended to take her to jail.'6

Finally, any of the sort of aggravating circumstances
that can cause a traffic stop to "escalate" were wholly
lacking in this case. Gail Atwater was not intoxicated or
using illegal drugs. There were no outstanding warrants for
her arrest. She was not a repeat offender.'7 Ms. Atwater was
at all times cooperative and polite, even when Officer
Turek's yelling made her children begin to cry. (R. 388-89,
414). There was no indication that Ms. Atwater was armed,
or that she posed any threat to the officer's safety. In short,
none of the common justifications given for custodial arrests
were present in this case. All legitimate law enforcement
objectives could have been accomplished by issuing a
citation. In the balancing of interests, the respondents' side
of the scale is empty.

As the court below erred by refusing to engage in an
historical inquiry, so, too, did it err by not balancing the
competing interests of the individual and government as
mandated by this Court's decisions. Other lower courts have
not shirked this responsibility when faced with a custodial


16 Not surprisingly, Officer Turek's performance review indicates that he led his department in misdemeanor arrests. (R.
653).


'~ The Fourth Amendment does not always mandate
the least intrusive law enforcement practice, see, e.g.
,Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983), as when
the less intrusive practice poses significant difficulties in its
application. But here, what happens to be a "less intrusive"
means for enforcing the seat belt law is also the easiest,
cheapest, most commonly used, most effective, in short, the
best means as well.
'~ At various stages in this litigation, the respondents
have mischaracterized Gail Atwater as having previously
violated the seat belt law. See, e.g., Brief of Appellees at 3,
Atwater v. City of Lago Vista, 165 F.3d 380 (5th Cir. 1999)
(No. 98-50302). There is not evidence in the record so
indicating. Ms. Atwater had been stopped by Officer Turek a
few weeks before the episode that gave rise to this case, but
her children were restrained on that occasion and no citation
was issued. (R. 379, 405, 703-07).



-34- -35-


arrest for a traffic violation. See, e.g., State v. Jones, 727
N.E.2d 886, 892-95 (Ohio 2000); State v. Harmon, 910 P.2d
1196, 1201-04 (Utah 1995). Under the circumstances of this
case, the balancing of the competing interests leads to the
same result that would have been reached under common law
rules, themselves the result of a balancing of interests: the
custodial arrest of Gail Atwater was an unreasonable seizure.

III. The Court Below Erred by Creating a Broad Per Se
Rule that Probable Cause Without More
Justifies Any Custodial Arrest, Regardless of
the Offense

The Fifth Circuit announced a broad new rule that
probable cause is the only Fourth Amendment restriction on
a seizure of a person. Such a rule, when applied to minor
traffic offenses, cannot be squared with the events that led to
the Fourth Amendment's adoption or with any balancing of
the competing interests of the individual and law
enforcement. Additionally, this Court has never recognized
such an unqualified rule, which ignores and even undercuts
other decisions of this Court.

A. The Court of Appeals' Reliance on Whren
v.
United States Was Misplaced

The Fifth Circuit relied on language in Whren v.
United States, 517 U.S. 806 (1996), concluding that any
custodial arrest was reasonable so long as there is probable
cause, ignoring the character of the offense. See 195 F.3d at
244-46, Pet. App. A at 4a-7a. The court below focused on
the following passage:

Where probable case has existed, the only cases in
which we have found it necessary to perform the
'balancing' analysis involved searches or seizures
conducted in an extraordinary manner, unusually
harmful to an individual's privacy or even physical
interestssuch as, for example, seizure by means of
deadly force, unannounced entry into a home, entry
into a home without a warrant, or physical penetration
of the body.

Whren, 517 U.S. at 818 (citations omitted). There are several
reasons why reliance on this passage was incorrect.

First, Whren did not address the constitutionality of a
custodial arrest, but rather of a temporary detention a traffic
stop based on probable cause to believe that a traffic
violation had been committed. Whren, 517 U.S. at 808. The
Whren petitioners contended that a traffic stop should only
be permitted if a hypothetical police officer, "acting
reasonably, would have made the stop for the reason given."
Whren, 517 U.S. at 810. This Court unanimously rejected
that argument as a thinly-veiled effort to avoid the Court's
repeated rejections of efforts to scrutinize officers' objective
intent. 517 U.S. at 811-
12. All that was before this Court in Whren was the
constitutionality of a traffic stop, not the custodial arrests
that followed.

Second, the custodial arrests in Whren were not traffic
arrests, but drug arrests based on probable cause. The vehicle
occupants were arrested for possession of narcotics after the
officer approached the vehicle and saw the passenger holding
in plain view two large bags of what appeared to be crack
cocaine. Whren, 517 U.S. at 808-09. The officers who made
the arrests in Whren were plainclothes "vice-squad officers"
patrolling in a "high drug area." Id. at 808. The officers had
observed a vehicle with temporary plates that had stopped
for an unusually long time at a stop sign, for no apparent
reason. Id. The vehicle then drove away when the police car
made a U-



-36- -37-


turn and approached. Id. The petitioners contended that the
stop and ultimate arrests were for a traffic violation in the
hope that this Court would announce a rule that prohibited
"pretextual" traffic stops. Id. at 810, 811-12. However, the
facts in Whren arguably were sufficient to justify a brief
detention based on reasonable suspicion apart from any
traffic violation. See United States v. Cortez, 449 U.S. 411,
417-18 (1981).

Finally, the custodial arrest of Gail Atwater was
extraordinary. A custodial arrest is admittedly less of an
intrusion than a physical penetration of the body, and based
on precedent, entries into the home are treated as greater
intrusions than physical incarceration of one's person. But
what constitutes an "extraordinary" seizure is relative to the
crime at issue. The infraction for which Ms. Atwater was
arrested is much less serious than the offenses in the
decisions listed by this Court in Whren as involving
"extraordinary" intrusions:
drunk driving,'8 burglary,'9 armed robbery,20 or trafficking in
narcotics.2' The nature and quality of an intrusion on an
individual's Fourth Amendment interests must be balanced
"against the importance of the governmental interests
alleged to justify the intrusion." Tennessee v. Garner, 471
U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S.
696, 703 (1983); citing Delaware v. Pro use, 440 U.S. 648,
654 (1979); United States v. Martinez-Fuerte, 428 U.S. 543,
555 (1976)). The degree of the governmental intrusion on
Gail Atwater was


'~ Schmerber v. California, 384 U.S. 757, 758
(1966).

'~ Tennessee v. Garner, 471 U.S. 1, 5 (1985). 20
Winston v. Lee, 470 U.S. 753, 755 (1985).

21 Wilson v. Arkansas, 514 U.S. 927, 929 (1995).
just as extraordinary as the intrusions in the cases listed in
Whren, when the basis for the governmental intrusion -.
enforcing the seat belt law is considered.

Indeed, even the Solicitor General has indicated that,
after making a traffic stop based on probable cause to believe
that a traffic violation has occurred, it is extraordinary to do
more than issue a ticket, absent some indication of other
ongoing criminal activity:

Once a police officer has completed his
investigation and citation of the traffic offense that
gave rise to the stop, the motorist must be permitted to
leave, unless the officer has by that time developed
reasonable suspicion that the motorist has committed
or is committing another offense. See United States
v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998); [United
States v. McRae, 81 F.3d 1528, 1535 (10th Cir.
1996)]. A reasonable suspicion to continue to detain a
motorist requires a 'particularized and objective basis
for suspecting the person stopped of criminal activity,'
Ornelas v. United States, 517 U.S. 690,696(1996)
(internal quotation marks omitted), in additional to the
original traffic offense.

Brief for the United States in Opposition at 9-10, Potts v.
United States, No. 98-2000. In Potts, the police officer
stopped the vehicle after it had changed lanes without
signaling and it had been speeding; there was no question the
officer had probable cause to believe that these offenses had
occurred. United States v. Potts, 173 F.3d 430, 1999 WL
96756(6th Cir. Feb. 2, 1999) (unpublished disposition). If
probable cause to believe a traffic offense has occurred were
alone sufficient to justify a custodial arrest, then the issue of
whether a traffic stop lasts too long a much less significant
governmental intrusion



-38- -39-


than a custodial arrest would rarely, if ever, be a concern.

B. United States v. Watson Upheld Only
Warrantless Felony Arrests, and its
Analysis Supports Petitioners' Position

The Fifth Circuit also ignored this Court's anaysis in
United States v. Watson, 423 U.S. 411(1976). Watson
dealt with the validity of a warrantless felony arrest based on
probable cause. Watson, 423 U.S. at 415-16. The Watson
Court did not take for granted that probable cause was
sufficient to justify a warrantless felony arrest. Instead, the
Court carefully reviewed common-law authorities to
determine if a warrantless felony arrest was proper when the
Fourth Amendment was adopted. Like Watson, the instant
case involves a warrantless custodial arrest. The Watson
analysis, therefore, should be applied here.

The Watson opinion contains a broad statement
indicating that probable cause would also be sufficient to
justify a warrantless arrest for a misdemeanor: "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 committed in
his presence as well as for a felony not committed in his
presence if there was reasonable ground for making the
arrest." Watson, 423 U.S. at 418. But the authorities cited to
support this statement either address only felony arrests22 or
note the common-law rule


22 See Samuel v. Payne, 1 Doug. 359. 99 Eng. Rep.
230
-(K.B.1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 638-
39, 108
Eng. Rep. 585, 586 (K.B.1827); Kurtz v. Moffitt, 115 U.S.
487, 504
(1885); Rohan v. Sawin, 59 Mass. (59 Cush.)
281, 284 (1850);
Wakely v. Hart, 6 Bin. 316, 318 (Pa.1814); Holley v. Mix, 3
Wend.
350, 350 (N.Y. Sup. Ct.1829); State v. Brown, 5 Del. (5
Harr.) 505,
limitting arrest authority to breach-of-the-peace mis-
demeanors.23

Instead, the analysis and holding of Watson
demonstrate that an arrest that meets the common law
standards satisfies Fourth Amendment requirements. As the
Watson Court stated, a "balance [was] struck by the common
law in generally authorizing felony arrests on probable cause,
but without a warrant." Watson, 423 U.S. at 421. The
common law struck a different balance depending on the
nature of the offense. The arrest in Watson satisfied the
common law rules. The arrest in this case does not.

C. The Decision Below Abrogates the
Automobile Exception by Permitting
Warrantless Vehicular Searches Without
Probable Cause that a Vehicle Contains
Contraband

Although the Fifth Circuit's decision purports to
place importance on probable cause, the ironic effect of the
holding


507 (Ct. Gen. Sess. 1853); Johnson v. State, 30 Ga.
426,426,429-30 (1860); Wadev. Chaffee, 8R.l. 224,225
(1865); Reuckv. McGregor, 32 N.J.L. 70, 74 (Sup. Ct.1866);
tf Baltimore & 0. R. Co. v. Cain, 81 Md.
87,100,102,31 A. 801, 803, 804 (1895) (stating that
"[ut is settled that an officer has the right to arrest
without a warrant for any crime committed within his view,"
but the issue before the court was whether a non-police
officer could arrest without a warrant for breach of the
peace).

23 10 Halsbuty 's Laws of England 344-345 (3d ed.
1955); 4

W. Blackstone, Commentaries *292; 1 J. Stephen, A History
of the
Criminal Law of England 193 (1883); 2 M. Hale, Pleas of
the Crown
*72..74; Wilgus. Arrest Without a Warrant, 22 Mich. L.
Rev. 541
(1924).



-40- -41-


is to dispense with probable cause altogether for warrantless
searches of automobiles. If custodial arrests were permitted
for any fine-only traffic offense, then there would no longer
be a probable cause requirement for application of the
"automobile exception."

Seventy-five years ago, this Court recognized the
"automobile exception" to the warrant requirement, holding
that a warrantless search of a motor vehicle based on
probable cause satisfied the Fourth Amendment's
reasonableness requirement. See Carroll v. United States, 267
U.S. 132, 1 53 (1925). "If a car is readily mobile and
probable cause exists to believe it contains contraband, the
Fourth Amendment thus permits police to search the vehicle
without more." Pennsylvania v. Labron, 518 U.S.
938,940(1996) (per cunan~) (citing Cal~fornia v. Carney,
471 U.S. 386, 393 (1985)).

If the decision below is affirmed, police will not only
be permitted to search vehicles "without more," they will be
allowed to search vehicles with even less. "[Wihen a
policeman has made a lawful custodial arrest of the occupant
of an automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that
automobile." New York v. Belton, 453 U.S. 454, 460 (1981).
If custodial arrests are allowed for all minor traffic offenses,
the automobile exception's probable cause requirement will
have been effectively jettisoned.

This is true, of course, whenever police conduct a
warrantless arrest: they are then permitted to conduct a
warrantless search incident to the arrest. The probable cause
~that justifies the arrest essentially transfers to support the
warrantless search when there may have been no probable
cause to justify the search alone. This is palatable when there
is probable cause that a serious crime has been committed,
but
much less so when the offense for which the arrest is made is
merely a minor traffic offense. The fact that a citizen
happens to violate a traffic law is no indication of any other
criminal conduct. This Court has observed that "the Carroll
doctrine does not declare a field day for the police in
searching automobiles." Almeida-Sanchez v. Un ited States,
413 U.S. 266, 269 (1973). If the decision below is left intact,
the field day will have been declared.

D. The Court of Appeals' Ruling
Undermines this Court's Decision in
Knowles v. Iowa

Finally, the decision below undermines this Court's
recent decision in Knowles v. Iowa, 525 U.S. 113 (1998).
Knowles held that a police officer cannot search a car
following a traffic stop when the officer issues a traffic
citation and does not place the driver under custodial arrest.
Knowles, 525 U.S. at 114. The decision below undermines
Knowles in two respects.

First, the Fifth Circuit nullifies any protection
Knowles provides against full searches incident to arrest. Any
officer wishing to avoid the holding of Knowles need only
place the driver under custodial arrest for the traffic
violation, and thereafter search the vehicle and driver as a
search incident to arrest. See United States v. Robinson, 414
U.S. 218 (1973). if the decision below is allowed to stand,
Knowles will cease to provide any protection to the average
citizen. Indeed, a zealous officer will have an incentive to
make custodial arrests in order to expand the scope of
permissible searches.

Second, unless the decision below is reversed, Knowles
will be meaningless when read against this Court's earlier
decisions addressing searches incident to arrest. This Court
has held that when a police officer has probable cause to
believe an



-42- -43-


offense has occurred for which an arrest may be made, the
search incident to the arrest can be conducted either before
or after the actual arrest. See, e.g., Rawlings v. Kentucky,
448 U.S. 98, 110-11 (1980); Peters v. New York, 392 U.S.
40, 40-43 (1968). Thus, unless limitations are placed on
when custodial arrests may be used for traffic offenses,
avoiding the holding of Knowles becomes a matter of timing:
a police officer may simply search the vehicle first, and if
contraband is found, declare that the driver has been arrested
for the traffic violation, thereby justifying the search after-
the-fact. The officer also then avoids the trouble of actually
making the custodial arrest unnecessarily24 but accomplishes
the desired search. As Professor LaFave has explained, "if
Rawlings is not to undo Knowles, it will be necessary for the
Court to find some way to avoid its use in the manner just
suggested." 3 Wayne R. LaFave, Search and Seizure 5.2,
at 16 (3d ed. 2000 Supp.).25 Prohibiting the use of custodial
arrests for fine-only traffic offenses absent extraordinary
circumstances would solve this dilemma.


24 Because of this, the systemic disincentives to
making custodial arrests, raised by the respondent in Ricci as
a reason for not placing limits on the use of custodial arrests
for minor offenses, will not deter a police officer who wishes
to conduct a thorough search of a vehicle or person. See
Respondent's Brief at 15, Ricci i'. Village
ofArlingtonHeights,No. 97-501, 1998 WL 134006.
Significantly. the respondent in Ricci essentially conceded
that it would be proper to require citations rather than
custodial arrests for traffic offenses. Id. at 16.

25 See also Wesley M. Oliver, With an Evil Eye and
an Unequal Hand: Pretextual Stops and Doctrinal Remedies
to Racial Profiling, 74 Tulane L. Rev. 1409, 1453 (2000)
("The unanimous decision in Knowles simply would make no
sense if probable cause to believe an offender had committed
a traffic offense alone justified taking him into custody.").
IV. This Case Lends Itself to Articulating More
Clearly the Permissible Boundaries of When a
Custodial Arrest May Be Used for Fine-Only
Traffic Offenses

It would not be necessary to announce a general rule
in this case in order to determine that the court below erred.
The specific circumstances of this case make clear that the
custodial arrest of Gail Atwater for violating the seat belt law
was unreasonable under the Fourth Amendment. The arrest
furthered no legitimate law enforcement interests. It would
not be inappropriate to leave to the lower courts the task of
determining if and when custodial arrests for other minor
traffic offenses, under different circumstances, comply with
the Fourth Amendment. See, e.g., Wilson v. Arkansas, 514
U.S. 927, 936 (1995) ("[W]e leave to the lower courts the
task of determining the circumstances under which an
unannounced entry is reasonable under the Fourth
Amendment."). Indeed, this Court often has eschewed bright-
line rules in Fourth Amendment settings. See, e.g., Ohio v.
Robinette, 519 U.S. 33, 39 (1996).

Nevertheless, this Court has not hesitated to provide
guidance to police officers and the public when appropriate.
As the Court has explained in setting forth a general rule,
"Our task in this case is to articulate more clearly the
boundaries of what is permissible under the Fourth
Amendment." County of Riverside v. McLaughlin, 500 U.S.
44, 56 (1991); see also Knowlesv. Iowa, 525 U.S. 113, 118-
19 (1998). This isacase that lends itself to establishing those
boundaries.

Both the extreme intrusion of custodial arrests on
law-abiding Americans, and the literally millions of traffic
stops that occur every year, make it desirable to articulate
the limits on when custodial arrests may be used for traffic
offenses. While in some instances, a wide array of
approaches in different regions makes sense, that is not true
here. For



-44- -45-


uniformity, to avoid arbitrary exercises of discretion, and to
avoid the likelihood of future Fourth Amendment violations,
Petitioners suggest the following rule:

The Fourth Amendment prohibits custodial arrests for
fine-only traffic offenses except when the arrest is
necessary for enforcement of the traffic laws or when
the offense would otherwise continue and pose a danger
to others on the road.

Issuing traffic citations is already the most common
method for enforcing fine-only traffic offenses. Custodial
arrests, on the other hand, are rare. See, e.g., Berkemer v.
McCarty, 468 U.S. 420, 434 (1984). The proposed rule
preserves the common-law distinction between lesser
and more serious offenses, but does so without reliance on
terms such as "misdemeanor," "felony," or "breach of the
peace," which have definitions that vary widely in different
jurisdictions and differ substantially from their common-law
meanings. See United States v. Watson, 423 U.S.
411, 440 n.9 (1976) (Marshall, J.. dissenting) (listing
federal statutes making offenses felonies that were
misdemeanors at common law).

Furthermore, the proposed rule curbs unfettered
discretion in conducting searches and seizures of the over 185
million Americans drivers for fine-only offenses that are
only marginally criminal. Such limitations on police
discretion are good for both the police and the public. See
Amicus Curiae Brief of the Institute on Criminal Justice at
the University of Minnesota Law School et al. The proposed
rule limits discretion, however, without thwarting legitimate
law enforcement objectives. Arrests would still be permitted
for drunk driving and other offenses that will continue to
pose a danger to others if the driver is not detained. Similarly,
it would permit custodial arrests in cases when the officer
cannot
ascertain the driver's identity, thus ensuring effective
enforcement of traffic offenses.

Finally, the proposed rule leaves police with ample
room to detect other more serious crimes.26 Police will still be
able to do any of following during a traffic stop:

_ With probable cause to believe that a motor vehicle
contains contraband, police may stop and search a
vehicle without first obtaining a warrant as thoroughly
as a magistrate could authorize. See United States v.
Ross, 456 U.S. 798, 823 (1982).

_ Police may order a driver to exit the vehicle and
conduct a protective "frisk" of the driver's person for
weapons. See Pennsylvania v. Mimms, 434 U.S. 106
(1977).

_ Police also may order any passengers to exit the
vehicle, and frisk them as well. See Maryland v.
Wilson, 519 U.S. 408, 415 (1997).

_ Police may demand to inspect the yIN, and remove
any objects obscuring the view of it. See New York v.
Class, 475 U.S. 106. 115, 118-19(1986).



26The potential that other crimes might not be
discovered if police are not permitted to arrest for any traffic
offense is not a legitimate part of the Fourth Amendment
inquiry. To consider the government's interest in enforcing
crimes other than the one for which the arrest was made is to
allow the effect of the exclusionary rule which is a Fourth
Amendment remedy to impact the substance of the
Fourth Amendment. Nevertheless, this concern may have
motivated the Fifth Circuit in reaching its result.



-46- -47-


_ To insure their safety, police may
conduct a limited search of the vehicle's
interior, including the passenger
compartment and any closed containers
in the area, to ensure no weapons are
present, if there are reasonable grounds to
believe that their safety is threatened.
See Michigan v. Long, 463 U.S. 1032,
1049-51 (1983).

_ Police may seize, without a warrant, any
contraband they encounter in "plain
view" while conducting the above
searches, and arrest the driver or
passengers based on the probable cause
developed from that discovery. See
Texas v. Brown, 460 U.S. 730 (1983).

_ Police may question a driver and
passengers regarding unrelated criminal
activity without first warning them of
their right to remain silent. See
Berkemer v. McCarty, 468 U.S. 420,
439-40 (1984).

_ Police may seek and obtain a driver's
consent to conduct more expansive
searches, and are not required to tell the
driver that he or she need not consent.
See Ohio v. Robinnett, 519 U.S. 33, 36,
39-40 (1996).
"An individual operating or traveling in
an automobile does not lose all reasonable
expectation of privacy simply because the
automobile and its use are subject to government
regulation." Delaware v. Prouse, 440 U.S. 648,
662 (1979). Having the discretion to take the
actions listed above provides police with ample
opportunities to uncover any other criminal
activity. In the case of Gail Atwater, of course,
there was no other criminal activity. Allowing
police to retain the broad discretion to arrest
granted them by the Fifth Circuit will not further
detection of other crimes. It will simply, when
exercised, constitute a severe and arbitrary
governmental intrusion on otherwise law-abiding
citizens who happen to violate minor traffic
laws.

V. Conclusion

History, balancing the competing
interests of the individual and government, and
faithfully following this Court's precedents all
demonstrate that Gail Atwater's Fourth
Amendment rights were violated. Petitioners
therefore respectfully pray that the Court
reverse the court of appeals' en banc decision,
and remand this case to the district court for
trial.
_ Police may have a drug-sniffing dog
circle the vehicle to ascertain the
presence of drugs. See United States v.
Place, 462 U.S. 696. 707 (1983) (drug
sniffing dog sniffing luggage not a
search); but see Edmond v.
Goldsmith, 183 F.3d 659 (7thCir.
1999), cert. granted, No. 99-1030 (Feb.
22, 2000).

In short, police officers making traffic stops
have at their disposal abundant powers to detect
crimes, other than traffic violations, that may be
occurring.
-48- -49-





Respectfully submitted,


Robert C. DeCarli *
Debra Irwin
Law Offices of DeCarli & h-win
12034 Research Blvd., Suite 6
Austin, Texas 78759
(512) 258-9299
Fax: (512) 258-1395


Pamela McGraw
P.O. Box 202165
Austin, Texas 78720
(512) 257-3688
Fax: (512) 331-1560


Michael F. Sturley
727 East Dean Keeton St.
Austin, Texas 78705
(512) 232-1350
Fax: (512) 471-6988

* Counsel of Record









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