No. 99-1408 

In the Supreme Court of the United States 

GAIL ATWATER, ET AL., PETITIONERS 

v. 

CITY OF LAGO VISTA, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 
THOMAS M. GANNON 

Attorney 
Department of Justice 
Washington, D. C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the reasonableness clause of the Fourth 
Amendment prohibits officers, who have probable cause to 
believe that a crime has been committed, from arresting the 
suspect because the crime involves a traffic offense that is 
punishable only by a fine. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

5 

Argument ........................................................................................ 6 

I. Warrantless misdemeanor arrests based on 
probable cause are reasonable under the Fourth 
Amendment regardless of whether the offense 
constitutes a “breach of the peace” ................................. 
8 

A. No source of law supports imposing on the 

Fourth Amendment a “breach of the peace” 
requirement for misdemeanor arrests .................... 

8 

B. Constitutionalizing restrictions on probable 
cause-based arrests that rest on the common law 
distinction between felonies and misdemeanors 
would be unworkable .................................................. 
15 

II. The Fourth Amendment permits arrests 
based on probable cause for offenses, including 
traffic offenses, that are not punishable by 
incarceration ................................................................ 18 

A. Fines have long been an important means 
of enforcing the criminal law ............................. 
19 

B. The Fourth Amendment permits seizures 
for offenses punishable only by fine ................. 
21 

C. A distinction in arrest authority based 
on punishment poses enforcement 
difficulties .............................................................. 25 

D. Legislatures have prevented and can 
continue to prevent arbitrary law 
enforcement .......................................................... 28 

Conclusion ....................................................................................... 30 

Appendix A ................................................................................... 

1a 

Appendix B ................................................................................... 1b 

Appendix C .................................................................................... 1c 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Bearden v. Georgia, 461 U.S. 660 (1983) ............................ 
20 

Bell v. Wolfish, 441 U.S. 520 (1979) .................................... 
24 

Berkemer v. McCarty, 468 U.S. 420 (1984) ................... 
18, 30 

Brown v. Texas, 443 U.S. 47 (1979) .................................... 
7 

Burroughs v. Eastman, 59 N.W. 817 (Mich. 1894) .......... 
9 

Carroll v. United States, 267 U.S. 132 (1925) ...... 
8, 10, 16, 25 

City of Akron v. Mingo, 160 N.E. 2d 225 (Ohio 
1959) ......................................................................................... 14 

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

13 

Conrad v. Lengel, 144 N.E. 278 (Ohio 1924) ..................... 
9 

Davis v. United States, 328 U.S. 582 (1946) ...................... 
10 

Dunaway v. New York, 442 U.S. 200 (1979) ............. 
7, 27-28 

Ehrlich v. Guiliani, 910 F.2d 220 (4th Cir. 1990) ............ 
24 

Fisher v. Washington Metro. Area Transit Auth., 
690 F.2d 1133 (4th Cir. 1982) ............................................... 
10 

Gerstein v. Pugh, 420 U.S. 103 (1975) .............................. 
6, 23 

Gustafson v. Florida, 414 U.S. 260 (1973) ......................... 
21 

Hammer v. Gross, 932 F.2d 842 (9th Cir.) (en banc), 
cert. denied, 502 U.S. 980 (1991) ......................................... 
16 

Higbee v. City of San Diego, 911 F.2d 377 (9th 

Cir. 1990) ............................................................................. 

10, 24 

John Bad Elk v. United States, 177 U.S. 529 
(1900) ........................................................................................ 10 

Johnson v. United States, 333 U.S. 10 (1948) ................... 

10 

Knowles v. Iowa, 525 U.S. 113 (1998) ............................. 
26 

Kurtz v. Moffitt, 115 U.S. 487 (1885) .............................. 
10, 15 

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983) ............... 
24 

Lewis v. United States, 518 U.S. 322 (1996) ....................... 
19 

Michigan v. DeFillippo, 443 U.S. 31 (1979) ...................... 
21 

Michigan v. Summers, 452 U.S. 692 (1981) ...................... 
24 

New York v. Class, 475 U.S. 106 (1986) ............................. 
26 

Oleson v. Pincock, 251 P. 23 (Utah 1926) .......................... 9 

V 

Cases—Continued: Page 

Payton v. New York, 445 U.S. 573 (1980) ............. 
6, 10, 13, 15 

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ................. 
21 

People v. Controller, 18 Mich. 445 (1869) .......................... 
19 

Rawlings v. Kentucky, 448 U.S. 98 (1980) ........................ 
27 

Robbins v. California, 453 U.S. 420 (1981) ....................... 
22 

Schmerber v. California, 384 U.S. 757 (1966) .................. 
23 

South Dakota v. Opperman, 428 U.S. 364 (1976) ............. 
26 

Staker v. United States, 5 F.2d 312 (6th Cir. 
1925) ......................................................................................... 10 

State ex rel. Thompson v. Reichman, 188 S.W. 225, 
reh’g denied, 188 S.W. 597 (Tenn. 1916) ........................ 

14, 24 

Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) ............... 
10 

Tate v. Short, 401 U.S. 395 (1971) ....................................... 
20 

Tennessee v. Garner, 471 U.S. 1 (1985) ............. 
12-13, 16, 21 

United States v. Brewster, 408 U.S. 501 (1972) ................ 
14 

United States v. Martinez-Fuerte, 428 U.S. 543 
(1976) ........................................................................................ 26 

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

21 

United States v. Ross, 456 U.S. 798 (1982) ........................ 
22 

United States v. Salerno, 481 U.S. 739 (1987) .............. 
23, 24 

United States v. Sharpe, 470 U.S. 675 (1985) ................... 
30 

United States v. Trigg, 878 F.2d 1037 (7th Cir. 
1989) ......................................................................................... 10 

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

10, 11, 13, 22 

Warden v. Hayden, 387 U.S.294 (1967) ............................. 
13 

Wayne County v. City of Detroit, 17 Mich. 390 
(1868) ........................................................................................ 19 

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

9, 10, 19, 

21, 22, 25 
White v. Kent, 11 Ohio St. 550 (1860) ................................. 

9 

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

Williamson v. United States, 207 U.S. 425 (1908) ........... 
14 

Wilson v. Arkansas, 514 U.S. 927 (1995) ................ 
12-13, 21 

Winston v. Lee, 470 U.S. 753 (1985) ................................... 21 

VI 

Constitution, statutes and regulations: 
Page 

U.S. Const.: 

Art. I ........................................................................................ 

15 

§ 6 ....................................................................................... 
5, 14 

Amend. IV ........................................................................ 
passim 

Amend. V ................................................................................ 
3 

Amend. XIV (Equal Protection Clause) ......................... 
6, 29 

14 U.S.C. 84 ............................................................................... 
19 

15 U.S.C. 1338 ........................................................................... 
19 

16 U.S.C. 422d .......................................................................... 
19 

16 U.S.C. 423f ........................................................................... 
19 

16 U.S.C. 460l-6a(e) ................................................................. 
1, 11 

16 U.S.C. 668b(a) ...................................................................... 
11 

16 U.S.C. 668dd(g) (Supp. IV 1998) ...................................... 
11 

16 U.S.C. 670j(b)(1) ................................................................. 
11 

16 U.S.C. 690e(a) ...................................................................... 
11 

16 U.S.C. 706 ............................................................................. 
11 

16 U.S.C. 727(a) ........................................................................ 
11 

16 U.S.C. 742j-1(d) ................................................................... 
11 

16 U.S.C. 831c-3(b)(2)(A) ........................................................ 
11 

16 U.S.C. 916g .......................................................................... 
11 

16 U.S.C. 959(d)(1) ................................................................... 
11 

16 U.S.C. 971f(a)(2) .................................................................. 
11 

16 U.S.C. 972g(d) ..................................................................... 
11 

16 U.S.C. 1172(d) ...................................................................... 
11 

16 U.S.C. 1338(b) ...................................................................... 
11 

16 U.S.C. 1377(d)(1) ................................................................. 
11 

16 U.S.C. 1540(e)(3) ................................................................. 
11 

16 U.S.C. 3375(b) ...................................................................... 
11 

16 U.S.C. 5506(c)(1)(A) (1994 & Supp. IV 1998) ................. 
11 

18 U.S.C. 243 ............................................................................. 
19 

18 U.S.C. 244 ............................................................................. 
19 

18 U.S.C. 333 ............................................................................. 
18 

18 U.S.C. 475 ............................................................................. 
19 

18 U.S.C. 489 ............................................................................. 
19 

18 U.S.C. 495 ............................................................................. 
18 

18 U.S.C. 510 (1994 & Supp. IV 1998) .............................. 17, 18 

VII 

Statutes and regulations–Continued: 
Page 

18 U.S.C. 3052 ......................................................................... 
1, 11 

18 U.S.C. 3053 ......................................................................... 
1, 11 

18 U.S.C. 3056(c)(1)(C) ............................................................ 
11 

18 U.S.C. 3061(a)(2) ................................................................. 
11 

18 U.S.C. 3063(a)(3) ................................................................. 
11 

18 U.S.C. 3571(b)(7) ................................................................. 
2 

19 U.S.C. 1589a(3) .................................................................... 
11 

21 U.S.C. 372(e)(4) ................................................................... 
11 

21 U.S.C. 841 (1994 & Supp. IV 1998) .................................. 
17 

21 U.S.C. 842 (1994 & Supp. IV 1998) .................................. 
17 

21 U.S.C. 844 (1994 & Supp. IV 1998) .................................. 
17 

21 U.S.C. 878(a)(3) ................................................................... 
11 

22 U.S.C. 1978(f)(4)(A)............................................................. 
11 

25 U.S.C. 2803(3)(A) ................................................................ 
11 

28 U.S.C. 566(d) ........................................................................ 
11 

33 U.S.C. 446 ............................................................................. 
11 

33 U.S.C. 452 ............................................................................. 
11 

33 U.S.C. 1321(m)(1)(B) .......................................................... 
11 

42 U.S.C. 1983 ......................................................................... 
3, 27 

50 U.S.C. App. 2411(a) ............................................................. 
11 

Ala. Code (1995 & Supp. 1999): 
§ 15-10-3(a)(1) ......................................................................... 
12 

§ 32-5A-191(b) ........................................................................ 
25 

Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp. 
1999) ......................................................................................... 12 

65 Ill. Comp. Stat. Ann. § 5/1-2-1 (West 1996) ..................... 

20 

625 Ill. Comp. Stat. Ann. §§ 5/6-800 et seq. 
(Nonresident Violator Compact of 1977) (West 1993) .... 
30 

N.J. Stat. Ann. (West 1995): 
§ 2C:1-4 .................................................................................... 
17 

§ 2C:1-5 .................................................................................... 
17 

Tex. Transp. Code Ann. (West 1999 & Supp. 2000): 
§§ 543.003-543.005 .................................................................. 
2 

§ 545.413(a) .............................................................................. 
2 

§ 543.413(b) ............................................................................. 2 

VIII 

Statutes and regulations–Continued: 
Page 

Va. Code (Michie 1996): 
§ 18.2-266.1(B) ........................................................................ 
25 

§ 18.2-270 (Supp. 1999) .......................................................... 
25 

Wis. Stat. Ann. § 346.65(2)(a) (West 1999) ........................... 
25 

36 C.F.R.: 

Pt. 1: 

Section 1.3(a) ..................................................................... 

2 

Pt. 4: 

Section 4.15 ...................................................................... 

2, 28 

Miscellaneous: 

4 W. Blackstone, Commentaries on the Laws of 

England (1769) ................................................................... 

9, 24 

Halsbury’s Laws of England: (1st ed. 1909) ........................ 
8 

Vol. 9 (1st ed. 1909) ................................................................. 
8 

Vol. 10 (3d ed. 1955) ........................................................ 
8-9, 10 

10 Halsbury’s Laws of England (3d ed. 1955) ................... 
9, 10 

2 W. Hawkins, A Treatise of Pleas of the Crown 
(1795) ........................................................................................ 9 

Institute for Law and Justice, Domestic Violence: A 

Review of State Legislation Defining Police & 
Prosecution Duties and Powers (Mar. 1998) .................... 
17 

Institute for Law and Justice, State Stalking Leg- 
islation: A Status Report—1997 (Mar. 1998) .................. 
17 

W. LaFave, Arrest: The Decision to Take a Suspect 
into Custody (1965) ............................................................... 
24 

3 W. Lafave, Search and Seizure (3d ed. 1996) ............... 
10, 12 

Model Code of Prearraignment Procedure (1975) ............. 
12 

National Highway Traffic Safety Admin., Standard 

Enforcement Saves Lives: The Case for Strong 
Seat Belt Laws (1999) ........................................................... 

28 
W. Schroeder, Warrantless Misdemeanor Arrests 
and the Fourth Amendment, 58 Mo. L. Rev. 771 
(1993) ........................................................................................ 12 

IX 

Miscellaneous—Continued: Page 

J. Stephen, A History of the Criminal Law of 

England (1883): 

Vol. 1 ................................................................................ 
15, 16 

Vol. 2 .................................................................................... 
16 

Vol. 3 .................................................................................... 
19 

J. Story, Commentaries on the Constitution of the 

United States (Carolina Academic Press 1987) ............... 

14 

U.S. Bureau of Justice Statistics: 

Offenders Returning to Federal Prison, 1986-97 
(Sept. 2000) ......................................................................... 

20 
Prison Statistics (1999) ........................................................ 
20 

Survey of State Prison Inmates (1991) ............................. 
20 

U.S. Dep’t of Justice, Bureau of Justice Assistance, 

Regional Seminar Series on Developing and 
Implementing Antistalking Codes (June 1996) ............. 

16-17 
U.S. Dep’t of Justice, Office of Justice Programs, 

Stalking and Domestic Violence: The Third 
Annual Report to Congress Under the Violence 
Against Women Act (July 1998) ....................................... 

16-17 
U.S. Marshal’s Office, Code of Professional Respon- 
sibility: Standards of Conduct (May 17, 1999) 
(http://156.9.230.3/prt/policy/directive/web/99-18.htm) .. 29 
U.S. Gen. Acct. Ofc.: 

Federal Law Enforcement: Investigative Authority 
and Personnel at 13 Agencies (GAO/GGD-96-154, 
Sept. 1996) ............................................................................ 
11 

Federal Law Enforcement: Investigative Authority 
and Personnel at 32 Organizations (GAO/GGD-97-93, 
Sept. 1996) ............................................................................ 
11 

H. Voorhees, The Law of Arrest in Civil and Criminal 

Actions (1904) ........................................................ 
12, 13, 15, 18 

H. Wilgus, Arrest Without A Warrant, 22 Mich. L. 

Rev. 541 (1923-1924) ........................................................ passim 

In the Supreme Court of the United States 

No. 99-1408 

GAIL ATWATER, ET AL., PETITIONERS 

v. 
CITY OF LAGO VISTA, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS 

INTEREST OF THE UNITED STATES 

This case presents the question under the Fourth Amend- 
ment’s reasonableness clause whether police officers may 
make warrantless arrests for misdemeanor offenses that are 
punishable only by a fine or whether the arrest authority is 
limited to misdemeanors that are punishable by imprison- 
ment or that cause a breach of the peace. There are approxi- 
mately 85 federal criminal offenses that are punishable only 
by a fine. See App. A, infra. Federal law enforcement 
officers are authorized by statute to make warrantless 
arrests for any misdemeanors committed in their presence, 
without any limitation to violations punishable by more than 
a fine or to those that constitute a breach of the peace. See, 

e.g., 16 U.S.C. 460l-6a(e) (authorizing arrest without a war- 
rant for fine-only offenses committed in national parks or 
federally administered recreation sites or facilities); 18 
U.S.C. 3052, 3053. In addition, the United States frequently 
prosecutes cases based on evidence that comes to light as the 
result of arrests by state or local authorities enforcing their 
own laws under their own policies. The United States 

(1) 

2 

therefore has a significant interest in the resolution of this 
case. 

STATEMENT 

1. Texas has made it a criminal offense for front-seat 
passengers in a passenger vehicle to fail to wear safety belts 
if the vehicle is equipped with such belts. Tex. Transp. Code 
Ann. § 545.413(a) (West 1999 & Supp. 2000). Texas law also 
criminalizes the failure of a driver to secure with a safety 
belt any child between the ages of 4 and 15 who is riding in 
the front seat of the vehicle. Id. § 545.413(b). Violation of 
the law is punishable by a fine of not less than $25 or more 
than $50.1 Texas law authorizes, but does not require, law 
enforcement officers to issue citations in lieu of arrest for 
violations of the seatbelt law. Id. §§ 543.003-543.005. 

2. In March 1997, petitioner Gail Atwater was driving 
with her two children in the family’s pickup truck. Pet. App. 
51a. Petitioner’s three-year-old son and five-year-old daugh- 
ter accompanied her in the front seat. Ibid.; J.A. 20.2 
Petitioner was not wearing a seatbelt, nor had she put 
seatbelts on her children. Respondent Bart Turek, at that 
time a City of Lago Vista police officer, witnessed the seat- 
belt violations and stopped petitioner’s vehicle. According to 
the allegations of the complaint, which must be accepted as 
true at this stage, respondent Turek yelled at petitioner as 
he approached the vehicle that “[w]e’ve met before” and 

1 Federal law similarly criminalizes the failure of an operator and all 
passengers to wear safety belts in any passenger car operated on federal 
parkways or federal parkland. 36 C.F.R. 4.15. Failure to comply is 
punishable by a fine of up to $5000 or six months’ imprisonment or both. 
36 C.F.R. 1.3(a); 18 U.S.C. 3571(b)(7). 

2 Although the district court described the children as “seated,” peti- 
tioner Atwater’s affidavit indicates that both children were standing on 
their seats, C.A. App. 702, and the complaint is not inconsistent with the 
affidavit. J.A. 20. The police report indicates that petitioner’s son was 
“standing in the passenger side of the truck and leaning against the dash- 
board.” C.A. App. 420. 

3 

“[y]ou’re going to jail.” Pet. App. 51a-52a; J.A. 20.3 
Respon- 

dent then called for back-up and asked petitioner for her 
license and insurance information. Pet. App. 52a. Petitioner 
responded that she did not have them because her purse had 
been stolen the day before. Respondent stated that he had 
“heard that story two-hundred times” from stopped motor- 
ists. J.A. 21; see also Pet. App. 52a. When petitioner asked 
to take her children to a friend’s house nearby, respondent 
replied, “[y]ou’re not going anywhere.” Pet. App. 52a; J.A. 

21. Petitioner’s friend then arrived and took the children to 
her home. Ibid. After the children left, respondent Turek 
handcuffed Atwater and took her to the local jail, where she 
spent approximately one hour being processed and having 
bail set. Pet. App. 2a, 52a; C.A. App. 423. In addition, 
petitioner’s car was impounded. Pet. App. 52a. The arrest 
report charged petitioner with driving without a seatbelt, 
failing to restrain her children in seatbelts, driving without a 
license, and failing to provide proof of insurance. Id. at 2a. 

3. Petitioner and her husband filed suit under 42 U.S.C. 
1983 against respondent Turek, the Chief of Police, and the 
City of Lago Vista. Pet. App. 3a. The complaint alleges 
denials of petitioner’s constitutional rights under the Fourth 
and Fifth Amendments and violations of state law, and seeks 
compensatory, special, and exemplary damages. 

J.A. 22-40. 

The district court granted summary judgment for the re- 
spondents (Pet. App. 50a-63a) on the ground that petitioners’ 
claims were “meritless,” id. at 51a, in light of petitioner 
Atwater’s admission that her conduct violated the criminal 
law and her failure to allege that she “was harmed or de- 
tained in any way inconsistent with the law,” id. at 56a-57a. 

3 Respondent Turek had previously stopped petitioner for what he 
perceived to be a seatbelt violation, but then learned that, although peti- 
tioner’s son was seated up on the vehicle’s armrest, he was wearing a 
seatbelt. Pet. App. 30a. 

4 

4. A panel of the court of appeals reversed. Pet. App. 
28a-49a. The court held that petitioner’s claim that respon- 
dent Turek yelled at her and arrested her for the seatbelt 
violations properly alleged an unreasonable seizure under 
the Fourth Amendment. Id. at 33a. The panel also held that 
respondent Turek was not entitled to qualified immunity 
because “Supreme Court precedent clearly established” that 
“an arrest for a first-time seat belt offense is indeed an ex- 
treme practice” subject to a “balancing analysis to determine 
the reasonableness of the police activity.” Id. at 44a.4 

5. The en banc court of appeals reversed. Pet. App. 1a- 
27a. Relying on this Court’s decision in Whren v. United 
States, 517 U.S. 806 (1996) (Pet. App. 4a), the majority held 
that an arrest based on probable cause is reasonable under 
the Fourth Amendment except in those “rare” instances 
where the arrest is “conducted in an extraordinary manner” 
that is “unusually harmful to an individual’s privacy or even 
physical interests,” ibid., such as the use of deadly force, 
physical penetration of the body, or entry of the home, id. at 
6a. Because “[n]either party disputes that Officer Turek had 
probable cause to arrest [petitioner]” and because “there is 
no evidence in the record that Officer Turek conducted the 
arrest in an ‘extraordinary manner, unusually harmful’ ” to 
petitioner’s privacy interests, the court held that the arrest 
was reasonable under the Fourth Amendment. Id. at 6a, 7a. 
Judge Reynaldo Garza dissented on the ground that the 
normal practice is to issue a citation for seatbelt offenses and 
no reason was given for arresting petitioner. Pet. App. 8a- 
11a. Judge Wiener dissented on the ground that, in his view, 
“[b]efore a police officer can constitutionally place an indivi- 
dual under full custodial arrest, even with probable cause, 
the officer must have a plausible, articulable reason for ef- 
fecting such an intrusion,” id. at 20a, and that, in the absence 

4 The panel also reinstated the claims against the City, but it affirmed 
dismissal of the claims against the Chief of Police. Pet. App. 49a. 

5 

of such a reason, the arrest constitutes the infliction of “pun- 
ishment” on the individual, id. at 18a. Judge Dennis dis- 
sented on the ground that the Fourth Amendment incor- 
porates the common-law prohibition on arrests for misde- 
meanors that do not involve a breach of the peace. Id. at 
20a-27a. 

SUMMARY OF ARGUMENT 

Petitioner’s arrest for violation of a state criminal law sat- 
isfied the requirements of the Fourth Amendment. The 
arrest was supported by probable cause to believe that peti- 
tioner had violated the criminal law; indeed, she has never 
denied the violations nor disputed the existence of probable 
cause. Because probable cause existed and the seizure was 
not effected in an extraordinary or unusual manner, the 
arrest was reasonable within the meaning of the Fourth 
Amendment. 

1. There is no basis for concluding that the Fourth 
Amendment permits a warrantless arrest for a misdemeanor 
only if the violation involves a breach of the peace. The 
common law expressly recognized that the arrest authority 
of police could be expanded by statute to include arrests like 
the one at issue in this case, and the longstanding practice of 
the federal government and every State confirms that 
understanding. Moreover, the phrase “breach of the peace” 
itself lacked an established meaning at common law, such 
that, even if it were incorporated into the Fourth Amend- 
ment, it would not restrict arrests in the manner advocated 
by petitioner. Indeed, this Court has recognized that the 
congressional immunity from arrest for a “breach of the 
peace” found in Article I, Section 6 of the Constitution em- 
braces all violations of the criminal law. Finally, the reason- 
ableness of an arrest under the Fourth Amendment should 
not turn on malleable and diverse legislative classifications 
of crimes as misdemeanors or felonies, or on variable judicial 
definitions of “breach of the peace.” 

6 

2. The Fourth Amendment permits a custodial arrest 
even though the law at issue is punishable only by a fine. 
The common law did not foreclose arrests for fine-only 
offenses, and established practice permits them. Further- 
more, the propriety of an officer’s decision to arrest based on 
probable cause—and his potential liability for money 
damages—should not vary based on the punishment that 
ultimately ensues weeks, months, or years later. And there 
is no basis for concluding that a jurisdiction’s decision to 
penalize a violation by a sanction other than imprisonment 
means that the government lacks a strong interest in effec- 
tive enforcement of that law. Where probable cause exists, a 
jurisdiction’s decision to enforce the criminal law through a 
custodial arrest is not constitutionally suspect simply 
because a less intrusive enforcement method may arguably 
be available. 

ARGUMENT 

The Fourth Amendment, made applicable to the States 
through the Fourteenth Amendment, Payton v. New York, 
445 U.S. 573, 576 (1980), 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 War- 
rants 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. 

U.S. Const. Amend. IV. Outside the home, the Fourth 
Amendment does not require a warrant in order to justify an 
arrest based on probable cause. Payton, 445 U.S. at 590-591; 
Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Rather, a police 
officer’s “on-the-scene assessment of probable cause pro- 
vides legal justification for arresting a person suspected of 
crime, and for a brief period of detention to take the admin- 
istrative steps incident to arrest.” Id. at 113-114. 

7 

This Court has never invalidated a routine arrest for a 
criminal offense based on probable cause. To the contrary, 
the Court recently reaffirmed that the “result of [the Fourth 
Amendment’s reasonableness inquiry] is not in doubt where 
the search or seizure is based upon probable cause.” Whren 

v. United States, 517 U.S. 806, 817 (1996); see also Brown v. 
Texas, 443 U.S. 47, 50 (1979) (balancing of public and indivi- 
dual’s interests is reserved for “seizures that are less intru- 
sive than a traditional arrest”); Dunaway v. New York, 442 
U.S. 200, 208 (1979) (the “long-prevailing standard[]” of 
probable cause “ embodie[s] the best compromise that has 
been found for accommodating [the] often opposing interests 
in safeguard[ing] citizens from rash and unreasonable inter- 
ferences with privacy and in seek[ing] to give fair leeway for 
enforcing the law in the community’s protection. The stan- 
dard of probable cause thus represent[s] the accumulated 
wisdom of precedent and experience as to the minimum 
justification necessary to make the kind of intrusion involved 
in an arrest ‘reasonable’ under the Fourth Amendment.”) 
(internal quotation marks and citation omitted). 

Indeed, the only cases in which this Court has applied a 
balancing analysis to arrests based on probable cause have 
been when the search or seizure was effectuated in an “ex- 
traordinary manner, unusually harmful to an individual’s pri- 
vacy or even physical interests—such as, for example, sei- 
zure by means of deadly force, unannounced entry into a 
home, entry into a home without a warrant, or physical pene- 
tration of the body.” Whren, 517 U.S. at 818 (citations 
omitted); see also Dunaway, 442 U.S. at 208 (probable cause 
standard “applie[s] to all arrests, without the need to balance 
the interests and circumstances involved in particular situa- 
tions”). 

If the allegations of the complaint are subsequently shown 
to be true, there would be little question that respondent 
Turek behaved in an inappropriate and unprofessional man- 
ner. But the arrest of Gail Atwater was nevertheless per- 

8 

missible under the Fourth Amendment. Petitioners’ and 
their amici’s effort to discard the long-established probable 
cause standard for arrests finds no basis in the Fourth 
Amendment, this Court’s precedents, or the practicalities of 
law enforcement. 

I. WARRANTLESS MISDEMEANOR ARRESTS 
BASED ON PROBABLE CAUSE ARE REASON- 
ABLE UNDER THE FOURTH AMENDMENT RE- 
GARDLESS OF WHETHER THE OFFENSE CON- 
STITUTES A “BREACH OF THE PEACE” 

A. No Source Of Law Supports Imposing On The 

Fourth Amendment A “Breach Of The Peace” 

Requirement For Misdemeanor Arrests 

Petitioners (Br. 13-20) and their amici (Cato Inst. Br. 3-7; 
NACDL Br. 15-17; ACLU Br. 20-21) argue that the arrest of 
petitioner Atwater was unreasonable because the common 
law generally prohibited warrantless arrests for misdemean- 
ors that did not involve breaches of the peace. It is true that 
the common law rule for warrantless misdemeanor arrests 
“[was] sometimes expressed” as limited to “when a breach of 
the peace has been committed in [the officer’s] presence or 
there is reasonable ground for supposing that a breach of 
peace is about to be committed or renewed in his presence.” 
Carroll v. United States, 267 U.S. 132, 157 (1925) (quoting 9 
Halsbury’s Laws of England (Halsbury) pt. III, § 612, at 299 
(1st ed. 1909)) (emphasis added). But that statement of the 
common law does not suggest that a parallel rule should 
exist under the Fourth Amendment. The common law itself, 
this Court’s cases, and a pattern of arrest authorization 
statutes make clear that Congress and the States may 
expand upon the common law arrest authority. 

1. The common law specifically recognized that an offi- 
cer’s arrest authority could be expanded by statute. 10 
Halsbury § 632, at 342 (3d ed. 1955) (“An arrest without a 

9 

warrant may be under a power conferred by common law or 
by statute.”). Statutorily conferred arrest authority was not 
confined to breaches of the peace. For example, night 
watchmen could “arrest all offenders, and particularly night- 
walkers, and commit them to custody till the morning.” 4 W. 
Blackstone, Commentaries on the Laws of England 289 
(1769) (emphasis added); see also 2 W. Hawkins, A Treatise 
of Pleas of the Crown ch. 13, preface & § 5, at 79-80 (1795) 
(authority of night watchmen to arrest “any Stranger * * * 
until Morning,” without “Process from some Court of 
Record”). Under the Pedlar’s Act of 1871, a police officer 
could arrest a pedlar who “refuses to show his certificate or 
has no certificate,” 10 Halsbury § 641, at 348 n.s, and under 
the Hawkers Act of 1888, a “peace officer may arrest a 
person found hawking without a license or not producing a 
licence on demand,” id. § 642, at 350 n.f. Officers could also 
arrest without a warrant “in connexion with the protection 
of * * * musical copyright.” Id. § 642, at 350. 

Accordingly, “it is generally recognized today that the 
common law authority to arrest without a warrant in misde- 
meanor cases may be enlarged by statute.” Welsh v. Wis- 
consin, 466 U.S. 740, 756 (1984) (White, J., dissenting) (inter- 
nal quotation marks omitted); H. Wilgus, Arrest Without A 
Warrant, 22 Mich. L. Rev. 541, 550 (1923-1924) (Wilgus) 
(“The states may, by statute, enlarge the common law right 
to arrest without a warrant, and have quite generally done 
so or authorized municipalities to do so, as for example, an 
officer may be authorized by statute or ordinance to arrest 
without a warrant for various misdemeanors and violations 
of ordinances, other than breaches of the peace, if committed 
in his presence.”) (citing cases) (footnotes omitted)); id. at 
705-706.5 

5 See also Oleson v. Pincock, 251 P. 23, 25 (Utah 1926); Conrad v. 
Lengel, 144 N.E. 278, 278 (Ohio 1924); Burroughs v. Eastman, 59 N.W. 
817, 819-820 (Mich. 1894); White v. Kent, 11 Ohio St. 550, 554 (1860); 10 

10 

2. This Court’s descriptions of the common law rule for 
misdemeanor arrests, moreover, have generally omitted the 
breach of the peace limitation and have focused, instead, on 
the requirement that the misdemeanor be committed in the 
officer’s presence.6 See, e.g., Payton, 445 U.S. at 590 n.30 
(“The cases construing the Fourth Amendment thus reflect 
the ancient common-law rule that a peace officer was per- 
mitted to arrest without a warrant for a misdemeanor or fel- 
ony committed in his presence.”); United States v. Watson, 
423 U.S. 411, 418 (1976) (same).7 
Likewise, most lower courts that have addressed the issue 
have held that the Fourth Amendment does not bar war- 
rantless misdemeanor arrests, regardless of whether the 
offense constitutes a breach of the peace or is punishable 
only by fine.8 The common law “breach of the peace” 
limitation that petitioners and their amici suggest should be 
incorporated into the Fourth Amendment thus has not been 

Halsbury §§ 641, 642, at 347-351 (discussing statutory powers of police to 
arrest without a warrant). 

6 The requirement that the misdemeanor be committed in the officer’s 
presence is not at issue in this case. Cf. Welsh, 466 U.S. at 756 (White, J., 
dissenting) (“But the requirement that a misdemeanor must have oc- 
curred in the officer’s presence to justify a warrantless arrest is not 
grounded in the Fourth Amendment.”); 3 W. LaFave, Search and Seizure 
§ 5.1(b), at 21 (3d ed. 1996). 

7 See also Johnson v. United States, 333 U.S. 10, 15 (1948); Carroll, 
267 U.S. at 156 (“The usual rule is that a police officer * * * may only 
arrest without a warrant one guilty of a misdemeanor if committed in his 
presence.”); John Bad Elk v. United States, 177 U.S. 529, 534 (1900) (“[A]n 
officer, at common law, was not authorized to make an arrest without a 
warrant, for a mere misdemeanor not committed in his presence.”); Kurtz 

v. Moffitt, 115 U.S. 487, 498-499 (1885); see also Davis v. United States, 328 
U.S. 582, 614 (1946) (Frankfurter, J., dissenting). 

8 See Higbee v. City of San Diego, 911 F.2d 377, 379-380 (9th Cir. 
1990); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989); Fisher v. 
Washington Metro. Area Transit Auth., 690 F.2d 1133, 1139 & n.6 (4th Cir. 
1982); Street v. Surdyka, 492 F.2d 368, 370-373 (4th Cir. 1974). But see 

Staker v. United States, 5 F.2d 312, 314 (6th Cir. 1925). 

11 

treated as an essential aspect of the common law arrest 
power. 

3. The breach of the peace limitation on misdemeanor 
arrests also finds no support in the legislation of Congress or 
the States. While Congress has generally retained the “in 
the presence” requirement for misdemeanor arrests by 
federal law enforcement officers, no federal statute confines 
misdemeanor arrests to breaches of the peace. See, e.g., 18 
U.S.C. 3052 (FBI agents authorized to “make arrests with- 
out warrant for any offense against the United States com- 
mitted in their presence”), 3053 (same, for U.S. marshals and 
deputies), 3056(c)(1)(C) (same, for Secret Service).9 “Be- 
cause there is a strong presumption of constitutionality due 
to an Act of Congress, especially when it turns on what is 
‘reasonable,’ ” Watson, 423 U.S. at 416 (quotation marks 
omitted), Congress’s consistent omission of a breach of the 

9 See also 16 U.S.C. 460l-6a(e) (authorizing arrest without a warrant 
for fine-only offenses committed in national parks or federally admin- 
istered recreation sites or facilities); 18 U.S.C. 3061(a)(2) (postal inspectors 
may “make arrests without warrant for offenses against the United States 
committed in their presence”), 3063(a)(3) (same for Environmental Pro- 
tection Agency officers); 19 U.S.C. 1589a(3) (same for customs officers); 21 
U.S.C. 878(a)(3) (same for Drug Enforcement Administration officers); 25 
U.S.C. 2803(3)(A) (Bureau of Indian Affairs officers may “make an arrest 
without a warrant for an offense committed in Indian country if * * * the 
offense is committed in the presence of the employee”); 28 U.S.C. 566(d) 
(in protecting courts and federal judicial officers, a U.S. marshal may 
“make arrests without warrant for any offense against the United States 
committed in his or her presence”); see generally U.S. Gen. Acct. Ofc., 
Federal Law Enforcement: Investigative Authority and Personnel at 32 
Organizations App. II & III (GAO/GGD-97-93, Sept. 1996); U.S. Gen. 
Acct. Ofc., Federal Law Enforcement: Investigative Authority and Per- 
sonnel at 13 Agencies App. I & II (GAO/GGD-96-154, Sept. 1996). Con- 
gress has also authorized certain law enforcement officers to effect war- 
rantless arrests for specific offenses, some of which are not felonies. See, 

e.g., 16 U.S.C. 668b(a), 670j(b)(1), 690e(a), 706, 727(a), 742j-1(d), 831c-3(b), 
916g, 959(d)(1), 971f(a)(2), 972g(d), 1172(d), 1338(b), 1377(d)(1), 1540(e)(3), 
3375(b); 21 U.S.C. 372(e)(4); 22 U.S.C. 1978(f)(4)(A); 33 U.S.C. 446, 452, 
1321(m)(1)(B); 50 U.S.C. App. 2411(a); 16 U.S.C. 668dd(g) (Supp. IV 1998); 
16 U.S.C. 5506(c)(1)(A) (1994 & Supp. IV 1998). 

12 

peace requirement for warrantless misdemeanor arrests 
counsels strongly against incorporating such a limitation into 
the Fourth Amendment. 

All fifty States and the District of Columbia, likewise, 
authorize at least some (if not all) of their law enforcement 
officers to execute warrantless misdemeanor arrests in the 
absence of a breach of the peace. See, e.g., Ala. Code § 15-10- 
3(a)(1) (1995 & Supp. 1999) (authorizing warrantless arrest 
for any “public offense” committed in the presence of the 
officer); Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp. 
1999) (authorizing arrest without a warrant when a misde- 
meanor has been committed in the officer’s presence). 

10 The 
Model Code of Prearraignment Procedure similarly author- 
izes warrantless arrests where the officer has reasonable 
cause to believe that the person has committed “a misde- 
meanor or petty misdemeanor in the officer’s presence.” 
Model Code of Prearraignment Procedure § 120.1, at 13 
(1975). Academic scholars have also long acknowledged the 
propriety in this country of warrantless arrests for misde- 
meanors even if they do not amount to a breach of the 
peace. 

11 

4. In some contexts, common law limitations that take 
root in this country may suggest that a similar constraint 
applies under the Fourth Amendment. See Wilson v. 
Arkansas, 514 U.S. 927, 933 (1995) (common law “knock and 
announce” principle incorporated into Fourth Amendment in 

10 We have collected representative state statutes in an appendix to 
this brief. See App. B, infra. See also W. Schroeder, Warrantless Misde- 
meanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 847 
(1993). 

11 See, e.g., H. Voorhees, The Law of Arrest in Civil and Criminal 
Actions § 131, at 78-79 (1904) (“[B]y authority of statute, city charter, or 
ordinance, [an officer] may arrest without a warrant, one who, within his 
jurisdiction, commits a misdemeanor other than a breach of the peace, as, 
for example, one who is violating a city ordinance, without breaking the 
peace.”) (footnotes omitted); id. § 146, at 85; Wilgus 541, 550; 3 W. LaFave, 

supra, § 5.1(b), at 12-23. 

13 

part because the rule “was woven quickly into the fabric of 
early American law”). But this Court “has not simply frozen 
into constitutional law those law enforcement practices that 
existed at the time of the Fourth Amendment’s passage.” 
Tennessee v. Garner, 471 U.S. 1, 13 (1985) (quoting Payton, 
445 U.S. at 591 n.33); see also Payton, 445 U.S. at 600 (noting 
that “custom and contemporary norms necessarily play 

* * * a large role in the constitutional analysis” of what is 
“reasonable” under the Fourth Amendment) (emphasis 
added); Warden v. Hayden, 387 U.S. 294, 300-310 (1967) (re- 
jecting common-law prohibition against searches for “mere 
evidence”). 

In this context, where the common law itself acknowl- 
edged that legislatures were not bound by a breach of the 
peace limitation, and where “the judgment of the Nation and 
Congress has for so long been to authorize warrantless 
public arrests on probable cause” for misdemeanors, Watson, 
423 U.S. at 423, transposition of a breach of the peace 
limitation into the Fourth Amendment is unwarranted. 

5. Even if some form of the “breach of the peace” limita- 
tion had taken root in the Fourth Amendment, the phrase 
“breach of the peace” had different meanings at common law. 
While some definitions focused (like petitioners and their 
amici) on conduct that threatened violence, disorder, or 
disruption, the common law at other times employed “breach 
of the peace” to refer to all violations of the criminal law. 
See, e.g., H. Voorhees, The Law of Arrest in Civil and 
Criminal Actions § 117, at 72 (1904) (“a breach of the public 
peace is the invasion of the security and protection which the 
law affords every citizen”); Wilgus 574 (under the statute of 
Charles II, “it was held that every indictable offense was 
constructively a breach of the peace * * * [and] disobeying 

14 

any act of parliament was a breach of the peace”) (footnotes 
omitted). 

12 

Indeed, this Court has adopted the broader construction 
of “breach of the peace” in interpreting the legislative immu- 
nity from arrest granted Members of Congress by Article I, 
Section 6 of the Constitution, which in relevant part pro- 
vides: “The Senators and Representatives * * * shall in all 
Cases, except Treason, Felony and Breach of the Peace, be 
privileged from Arrest during their Attendance at the Ses- 
sion of their respective Houses, and in going to and return- 
ing from the same.” As this Court has explained: 

[W]hen the Constitution was written the term “breach of 
the peace” did not mean, as it came to mean later, a mis- 
demeanor such as disorderly conduct but had a different 
18th century usage, since it derived from breaching the 
King’s peace and thus embraced the whole range of 
crimes at common law. 

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

13 

12 See also City of Boerne v. Flores, 521 U.S. 507, 539 (1997) (Scalia, J., 
concurring) (citing English cases to the effect that “[E]very breach of a 
law is against the peace.”); id. at 540 & n.2; City of Akron v. Mingo, 160 
N.E.2d 225, 228-231 (Ohio 1959); State ex rel. Thompson v. Reichman, 188 
S.W. 225, 228 (“The term ‘breach of the peace’ is generic and includes all 
violations of public peace or order, or acts tending to the disturbance 
thereof.”), on reh’g, 188 S.W. 597, 602 (Tenn. 1916) (“[W]hat can be more 
logical than to say that every violation of a criminal law is a breach of the 
peace of the state?”). The common law also recognized that the crimes 
constituting a breach of the peace could be expanded by statute. Wilgus 
575 (noting that the phrase had been expanded to include, for example, 
desecrating the national flag and transporting intoxicating liquor); 

Reichman, 188 S.W. at 607. 

13 See also Williamson v. United States, 207 U.S. 425, 444 (1908) 
(“Now, as all crimes are offenses against the peace, the phrase ‘breach of 
the peace’ would seem to extend to all indictable offenses, as well those 
which are in fact attended with force and violence, as those which are only 
constructive breaches of the peace of the government, inasmuch as they 
violate its good order.”); J. Story, Commentaries on the Constitution of 
the United States § 438, at 308 (Carolina Academic Press 1987) (same). 

15 

Petitioners’ argument thus attempts to import into one 
provision of the Constitution an interpretation of “breach of 
the peace” that is quite different from the meaning the 
Framers ascribed to that phrase when drafting Article I. At 
a minimum, the established constitutional definition and 
other common law authority demonstrate that the meaning 
of “breach of the peace” was sufficiently unsettled to pre- 
clude elevating petitioners’ restrictive reading of the phrase 
to the level of constitutional rule. See Payton, 445 U.S. at 
598. 

B. Constitutionalizing Restrictions On Probable-Cause- 
Based Arrests That Rest On The Common Law Dis- 
tinction Between Felonies And Misdemeanors Would 

Be Unworkable 

Petitioners’ and their amici’s effort to impose constitu- 
tional limits on misdemeanor arrests is predicated upon an 
anachronistic distinction between felonies and misdemeanors 
that has little relevance to modern criminal law. At common 
law, felonies consisted of crimes punishable by death or for- 
feiture of land. See 1 J. Stephen, A History of the Criminal 
Law of England 458 (1883). 

14 The term “misdemeanor” com- 
prised all remaining crimes except treason. See, e.g., Wilgus 
572. 

Because of the statutory codification of criminal law in 
most American jurisdictions, many of the crimes considered 
to be misdemeanors at common law—such as assault, at- 
tempted felonies, forgery, and kidnaping—are now consid- 

Petitioners suggest (Br. 13-17) that the common law permitted warrant- 
less arrests only for felonies and breaches of the “Public Peace,” and that 
the term “breach of the king’s peace,” which encompassed all criminal 
laws, was not applied in delineating the power to arrest. The analysis in 
Brewster, however, which was concerned with a constitutional “privilege[] 
against Arrest,” did not draw that distinction. See also Voorhees § 117, at 
72 (all violations of the criminal law are “breach[es] of the public peace”). 

14 See also Garner, 471 U.S. at 13-14; Kurtz, 115 U.S. at 499; Voorhees 
§ 115, at 70-71; Wilgus 569. 

16 

ered felonies. See, e.g., Garner, 471 U.S. at 14, 20 (statutory 
changes in the classification of crime have “made the as- 
sumption that a ‘felon’ is more dangerous than a misde- 
meanant untenable”; distinction is “highly technical” and 
“arbitrary”). Indeed, “[i]n this country there is no generally 
accepted meaning of the[] terms” felony and misdemeanor 
“except as given by statute.” Wilgus 570; Carroll, 267 U.S. 
at 158 (“Under our present federal statutes, [the distinction 
between felonies and misdemeanors] is much less important 
and Congress may exercise a relatively wide discretion in 
classing particular offenses as felonies or misdemeanors.”). 

15 

Petitioner’s proposed constitutional rule, if construed lit- 
erally, would thus place undue weight on the vagaries of leg- 
islative classifications of crime. As a result, the same crime 
committed by the same defendant would constitutionally be 
subject to warrantless arrest in one jurisdiction and to only a 
summons or citation in another jurisdiction. For example, 
stalking by telephone or letter, or violation of a protective 
order in a domestic violence case (neither of which would 
necessarily have been considered a breach of the public 
peace under petitioners’ definition) is treated as a felony in 
some States and a misdemeanor in others. See U.S. Dep’t of 
Justice, Office of Justice Programs, Stalking and Domestic 
Violence: The Third Annual Report to Congress Under the 

15 See also Hammer v. Gross, 932 F.2d 842, 853 (9th Cir.) (en banc) 
(Kozinski, J., concurring) (noting that, while California classifies drunk 
driving as a misdemeanor, impersonating a bride or bridegroom is a fel- 
ony), cert. denied, 502 U.S. 980 (1991); Wilgus 573; 1 Stephen, supra, at 
489 (“A large number of misdemeanours were created by statute at 
different times, but especially in the eighteenth and nineteenth centuries, 
which differ in no essential respect from the common crimes distinguished 
as felonies.”); 2 Stephen, supra, at 189, 193 (“[S]ince the substitution of 
milder punishments for death, the distinction [between felonies and mis- 
demeanors] has become unmeaning and a source of confusion, especially as 
many offences have been made misdemeanours by statutes, which render 
the offender liable to punishments as severe as those which are now 
usually inflicted upon persons convicted of felony.”). 

17 

Violence Against Women Act 24-26 & App. B (July 1998) 
(chronicling state legislation). 

16 And the State of New Jer- 
sey appears to classify most of its crimes as misdemeanors. 
N.J. Stat. Ann. §§ 2C:1-4, 2C:1-5 (West 1995). This Court 
should be hesitant to constitutionalize legislative labels that 
are often the “result[] of evolution or accident” (Wilgus 568) 
and to adopt a rule under which “the search and seizure pro- 
tections of the Fourth Amendment are so variable” (Whren, 
517 U.S. at 815). 

The misdemeanor/felony distinction would also prove diffi- 
cult to apply by police officers on the street. Frequently the 
line between felony and misdemeanor conduct is dependent 
upon the offender’s prior criminal history or the amount of 
money or of a drug at issue. See, e.g., 18 U.S.C. 510 (1994 & 
Supp. IV 1998) (forgery of Treasury checks under $500 is a 
misdemeanor); 21 U.S.C. 841, 842, 844 (1994 & Supp. IV 
1998). A police officer who witnesses the forgery of a Social 
Security check or an individual possessing an unknown quan- 

16 See also U.S. Dep’t of Justice, Bureau of Justice Assistance, Re- 
gional Seminar Series on Developing and Implementing Antistalking 
Codes 53-55 (Table 9) (June 1996); Institute for Law and Justice, Domestic 
Violence: A Review of State Legislation Defining Police and Prosecution 
Duties and Powers (Domestic Violence) 2, 7-10, 25 (Mar. 1998); Institute 
for Law and Justice, State Stalking Legislation: A Status Report—1997 
(State Stalking Legislation), at 5 (Exh. 1) and Apps. 1 & 2 (Mar. 1998). 

At least 28 States and the District of Columbia, moreover, mandate or 
strongly encourage arrests in stalking and domestic violence cases as a 
matter of policy. Petitioner’s proposed construction of the Fourth Amend- 
ment could imperil some of those important law enforcement policies and 
programs. State Stalking Legislation 19 (Exh. 4) (documenting States 
that authorize arrests without a warrant for stalking); Domestic Violence 
12 (“Today all but 1 state authorizes warrantless arrests of domestic 
violence offenders based solely on a probable cause determination,” and 
“[i]n 20 states and the District of Columbia police arrest is required when 
the officer determines that probable cause exists.”), 13, 76 (48 states 
authorize warrantless arrests based on a probable cause determination 
that a protective order has been violated). The laws of thirteen States 
explicitly bar police from simply issuing citations or appearance tickets in 
lieu of a formal arrest in domestic violence cases. Domestic Violence 16. 

18 

tity of drugs (neither of which would necessarily qualify as a 
breach of the peace in petitioners’ view) will not know 
whether a warrantless arrest is permitted until after the 
offender is seized, the evidence collected, and the defen- 
dant’s criminal history checked. See Berkemer v. McCarty, 
468 U.S. 420, 430-431 (1984) (“The police often are unaware 
when they arrest a person whether he may have committed 
a misdemeanor or a felony. * * * Indeed, the nature of his 
offense may depend upon circumstances unknowable to the 
police, such as whether the suspect has previously com- 
mitted a similar offense or has a criminal record of some 
other kind.”) (footnote omitted). 

Nor can it be assumed that misdemeanors that do not 
amount to a breach of the peace are less serious crimes for 
which enforcement can be relaxed at little social cost. The 
forgery of a poor, elderly person’s $400 Social Security check 
(18 U.S.C. 495, 510 (1994 & Supp. IV 1998)) may distress and 
financially embarrass that victim. An officer’s arrest of an 
individual who mutilates federal bank notes by removing the 
corner dollar values (18 U.S.C. 333) may expose a counter- 
feiting operation that would cost the taxpayers a significant 
amount of money. And domestic violence that does not rise 
to petitioners’ definition of a common law breach of the peace 
(such as where the victim of a battery does not scream or 
otherwise disturb the public, see Voorhees § 121, at 74) may 
nevertheless inflict considerable suffering on the victim. 

II. THE FOURTH AMENDMENT PERMITS ARRESTS 
BASED ON PROBABLE CAUSE FOR OFFENSES, 
INCLUDING TRAFFIC OFFENSES, THAT ARE 
NOT PUNISHABLE BY INCARCERATION 

Petitioners’ alternative contention (Br. 11-13, 23-26) is 
that, even when the police possess probable cause, they may 
not effectuate an arrest if the authorized punishment for the 
violation is a fine. The fact that an offense is not punishable 
by incarceration, however, does not strip the offense of its 

19 

criminal character. Nor does it diminish the governmental 
interest in ensuring compliance with the law and the imposi- 
tion of authorized penalties. 

A. Fines Have Long Been An Important Means Of 

Enforcing The Criminal Law 

Fines have a long history in the criminal law. In 1413, 
persons found guilty of forging property deeds were 
required to “make fine and ransom at the king’s pleasure.” 3 
Stephen, supra, at 181. Offenses as varied as “cutting off the 
ears of the king’s subjects,” burning carts loaded with coal, 
bribery in parliamentary elections, and the unlawful 
collection of interest were, for a period of time, punishable 
only by a fine. Id. at 189, 198, 253. Cases specifically 
recognized that “ordinances punishing by fine” certain types 
of misconduct “were penal laws.” Wilgus 551 n.60 (citing 
County of Wayne v. City of Detroit, 17 Mich. 390 (1868), and 
People v. Controller, 18 Mich. 445, 576 (1869)). 

In the modern day, government continues to rely upon 
fines as an important means of punishing crime. Congress 
has created more than 85 criminal offenses for which a fine is 
the only authorized sanction. See, e.g., 14 U.S.C. 84 (inter- 
ference with aids to navigation); 15 U.S.C. 1338 (cigarette 
labeling and advertising); 16 U.S.C. 422d, 423f (vandalism at 
national monuments and military parks); 18 U.S.C. 243 (ex- 
clusion of jurors on account of race or color), 244 (discrimina- 
tion against person wearing uniform of the armed forces), 
475, 489 (imitating or reproducing U.S. obligations, securi- 
ties, or coins); see also App. A, infra. 

The arguments of petitioners and their amici assume that 
the decision to withhold incarceration as punishment for a 
crime diminishes the seriousness of the offense. While the 
type of sanction authorized is an important indication of 
seriousness, Welsh, 466 U.S. at 754 n.14; see Lewis v. United 
States, 518 U.S. 322, 326 (1996), the sanction chosen by gov- 
ernment cannot be the sole, dispositive factor in evaluating 

20 

the public’s interest in enforcement. The selection of a 
punishment for a crime reflects a complicated judgment 
about the nature of the crime, its cost to society, and the best 
means of deterring violations, promoting rehabilitation, and 
other factors. For example, many prosecutors’ offices have 
adopted diversion programs for first-time domestic violence 
and drug offenders. First-time offenders are given 
probation and required to meet a variety of educational, 
employment, and counseling requirements, in lieu of 
incarceration. See also Bearden v. Georgia, 461 U.S. 660, 662 
(1983) (discussing the Georgia First Offender’s Act). It is 
true that incarceration remains a potential penalty in the 
diversion-program cases. But that does not significantly 
distinguish the case at hand, because individuals who refuse 
to pay the fine for an ordinance violation (for reasons other 
than poverty) often can be jailed. See, e.g., 65 Ill. Comp. 
Stat. Ann. § 5/1-2-1 (West 1996); Bearden, 461 U.S. at 668; 
Tate v. Short, 401 U.S. 395, 400 (1971). 

A decision to limit the sanction for a violation to a fine 
thus does not translate into a lack of interest in or commit- 
ment to enforcing the law. Given the exploding prison popu- 
lation and the generally high recidivism rates for released 
prisoners, 

17 governments that experiment with alternatives 
to incarceration, such as fines, should not find their hands 
tied in enforcing and implementing those alternative sanc- 
tions. Nor should the Fourth Amendment categorically 
declare that such experimentation, as a matter of constitu- 
tional law, reflects such a diminished community interest in 
law enforcement that probable cause arrests are imper- 
missible. 

17 See U.S. Bureau of Justice Statistics, Prison Statistics (1999), avail- 
able at http://www.ojp.usdoj.gov/bjs/prisons.htm; U.S. Bureau of Justice 
Statistics, Survey of State Prison Inmates 11 (1991); U.S. Bureau of 
Justice Statistics, Offenders Returning to Federal Prison, 1986-97 (Sept. 
2000). 

21 

B. The Fourth Amendment Permits Seizures For Offenses 

Punishable Only By Fine 

This Court’s decisions have recognized that the Fourth 
Amendment does not preclude seizures where the offense is 
not punishable by incarceration. Stops for traffic violations 
have long been permitted without reference to the potential 
penalty for the infraction. See, e.g., Pennsylvania v. 
Mimms, 434 U.S. 106, 107 (1977) (driving with expired li- 
cense plate). 

18 Recently, in Whren v. United States, supra, 
this Court unanimously rejected an effort to require more 
than probable cause to justify a seizure for a “civil” traffic 
violation, 517 U.S. at 808. The petitioners in Whren argued 
that, in analyzing the reasonableness of the seizure, courts 
should factor in the purportedly diminished governmental 
interest in enforcing “minor traffic infractions.” Id. at 816- 
817. While acknowledging “in principle” that every Fourth 
Amendment case entails a balancing of relevant factors, the 
Court held that “the result of that balancing is not in doubt 
where the search or seizure is based upon probable cause.” 
Id. at 817. The officer’s “probable cause to believe the law 
has been broken” necessarily “ ‘outbalances’ private interest 
in avoiding police contact.” Id. at 818. 

19 

18 See also Michigan v. DeFillippo, 443 U.S. 31, 36-40 (1979); Gustafson 

v. Florida, 414 U.S. 260, 265 (1973); United States v. Robinson, 414 U.S. 
218, 234-235 (1973). 

19 The Court ruled that actual balancing is reserved for those cases 
where probable cause is absent or the seizure is “conducted in an extra- 
ordinary manner, unusually harmful to an individual’s privacy or even 
physical interests.” Whren, 517 U.S. at 818. Such extraordinary searches 
or seizures include surgical intrusion (Winston v. Lee, 470 U.S. 753 (1985)), 
the use of deadly force (Tennesse v. Garner, supra), or warrantless or 
unannounced entries into the home (Wilson v. Arkansas, supra; Welsh, 
466 U.S. at 740). None of those activities nor anything remotely like them 
occurred here. 

22 

The Court rejected the Whren petitioners’ objections that 
traffic laws are so multitudinous and inadvertently violated 
as to render the stops “extraordinary,” stating: 

[W]e 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 en- 
forcement. And even if we could identify such exorbitant 
codes, we do not know by what standard (or what right) 
we would decide, as petitioners would have us do, which 
particular provisions are sufficiently important to merit 
enforcement. 

517 U.S. at 818-819. 

This case involves a short custodial arrest, and Whren 
involved a stop. But both qualify as seizures under the 
Fourth Amendment. Whren, 517 U.S. at 809-810; Watson, 
423 U.S. at 414- 424. Furthermore, the extent of the seizure 
was not a factor in the Whren Court’s analysis precisely 
because such balancing was deemed unnecessary for routine 
seizures based on probable cause. See 517 U.S. at 817; see 
also Robbins v. California, 453 U.S. 420 450 (1981) (Stevens, 
J., dissenting) (“As a matter of constitutional law, however, 
any person lawfully arrested for the pettiest misdemeanor 
may be temporarily placed in custody.”) (footnote omitted), 
overruled, United States v. Ross, 456 U.S. 798 (1982). 
Surely, here, where a violation of the criminal law is in- 
volved, as much as for Whren’s civil violation, “there is no 
realistic alternative to the traditional common-law rule that 
probable cause justifies a search and seizure,” and so “infrac- 
tion itself ” should remain “the ordinary measure of the 
lawfulness of enforcement.” Whren, 517 U.S. at 818-819. 

20 

20 In Welsh, the Court held that a State’s classification of an offense as 
noncriminal and the modest sanction imposed were relevant in assessing 
whether officers could make a warrantless arrest in the home. 466 U.S. at 
752-754. Whren, however, makes clear that, for routine seizures based on 

23 

A custodial arrest may serve valid purposes even where 
the authorized penalty upon conviction is not incarceration. 
The police may need to preserve evidence, confirm the 
suspect’s identity, defuse and control a situation, or abate a 
continuing violation. Jurisdictions that mandate or encour- 
age arrests of individuals who violate domestic violence pro- 
tective orders, shoplifters, or runaways may consider their 
arrest policy part of a larger law enforcement strategy de- 
signed to cure minor violations before a pattern of criminal- 
ity develops. Furthermore, governments may legitimately 
and reasonably determine that their officers should not be 
forced to make spot decisions in the heat of an encounter 
about the reliability of a suspect’s identification, promise to 
appear in court, or promise not to repeat the offense. 
Relatedly, jurisdictions may reasonably determine, for a 
variety of reasons, that officers should not be required to 
process paperwork and both determine the appropriateness 
of and collect cash bonds at the scene of an arrest. Those 
purposes justify the arrest even where the legislature does 
not deem it necessary to punish violators upon conviction 
with incarceration. 

Nor, contrary to the argument of Judge Wiener in dissent 
below (Pet. App. 18a, 20a), does an arrest and its attendant 
processing at a police station entail the unconstitutional 
infliction of “punishment” on defendants facing fines. This 
Court has long recognized that probable cause “provides 
legal justification for arresting a person suspected of crime, 
and for a brief period of detention to take the administrative 
steps incident to arrest.” Gerstein, 420 U.S. at 113-114; see 
also United States v. Salerno, 481 U.S. 739, 749 (1987) (“If 
the police suspect an individual of a crime, they may arrest 
and hold him until a neutral magistrate determines whether 

probable cause outside the home, such considerations play no part in the 
constitutional analysis. 517 U.S. at 818; see also Schmerber v. California, 
384 U.S. 757, 766-772 (1966). 

24 

probable cause exists.”). Arrest and booking thus represent 
not punishment, but the admnistrative processing of a 
criminal suspect—a type of seizure that is reasonable, within 
the meaning of the Fourth Amendment, if predicated on 
probable cause. And the government’s authority to initiate 
the criminal process has never been held to depend upon the 
type of punishment authorized for the offense charged. 

21 

Indeed, this Court has generally characterized even sig- 
nificant periods of pretrial detention as a “regulatory re- 
straint,” rather than punishment. See Bell v. Wolfish, 441 
U.S. 520, 537 (1979); see also Salerno, 481 U.S. at 746 (“[T]he 
mere fact that a person is detained does not inexorably lead 
to the conclusion that the government has imposed 
punishment.”); id. at 748 (pretrial detention under the Bail 
Reform Act “is regulatory in nature”). In light of the 
Court’s conclusion that the lengthy and intrusive forms of 
detention in Bell and Salerno do not constitute punishment, 
the suggestion that the one hour petitioner Atwater spent 
being administratively processed at the station house 
constituted punishment fails. 

22 

21 See Michigan v. Summers, 452 U.S. 692, 702-703 (1981); Higbee, 911 
F.2d at 380 (“Plaintiffs were not being punished. They were merely being 
taken to jail to be booked and processed in the customary manner.”); 
Reichman, 188 S.W. at 230 (because it serves a distinct law enforcement 
purpose, arrest for violation of liquor laws is permissible even though 
imprisonment may not be available as punishment); Wilgus 543 (an arrest 
“is the apprehension or taking into custody of an alleged offender, in order 
that he may be brought into the proper court to answer for a crime.”) 
(footnote and internal quotation marks omitted); W. LaFave, Arrest: The 
Decision to Take a Suspect into Custody 186-189 (1965); 4 Blackstone, 
supra at 286; cf. Ehrlich v. Giuliani, 910 F.2d 1220, 1223 (4th Cir. 1990) 
(“One of the most important duties of a prosecutor pursuing a criminal 
proceeding is to ensure that defendants * * * are present at trial.”); 
Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir. 1983) (arrest brings the 
subject before the court and subjects him to its immediate authority, 
without which “the initiation of a prosecution would be futile”). 

22 The officer’s subjective motivation is irrelevant to this inquiry. 
Whren, 517 U.S. at 813. 

25 

C. A Distinction In Arrest Authority Based On Punish- 
ment Poses Enforcement Difficulties 

Like the effort to confine misdemeanor arrests to 
breaches of the peace, a constitutional rule that allows 
arrests only for offenses punishable by imprisonment raises 
problems of practical implementation. A number of laws 
make first offenses punishable by a fine or other non- 
incarceration penalty, but permit incarceration for 
subsequent offenses. 

23 A police officer witnessing an offense 
on the street, however, has no way of knowing whether the 
perpetrator is a first-time offender. 

24 Failure to arrest could 
leave a repeat offender on the street; arrest could subject 
the officer to personal liability for damages. “This is 
certainly a very unsatisfactory line of difference” for police 
officers to administer. Carroll, 267 U.S. at 157. 

Petitioners’ proposal (Br. 46) that the Fourth Amendment 
ban all arrests for fine-only offenses unless the arrest is 
“necessary” for enforcement of the laws or the “offense 
would otherwise continue and pose a danger to others” will 
likewise be difficult to implement on the streets. 

25 For 

23 See, e.g., Welsh, 466 U.S. at 746 (first offense is a civil infraction pun- 
ishable by $200 fine; subsequent offenses punishable by imprisonment of 
up to one year); Carroll, 267 U.S. at 154; Va. Code § 18.2-266.1(B) (Michie 
1996); id. § 18.2-270 (Michie 1996 & Supp. 1999) (first-time offense of driv- 
ing while intoxicated punishable by license suspension and fine; subse- 
quent offenses are punishable as a misdemeanor by fine and imprison- 
ment; third offense within ten years is a felony); Ala. Code § 32-5A-191(b) 
(Michie 1999) (first-time offense of driving under the influence subject 
only to license suspension if driver is under 21); Wis. Stat. Ann. 
§ 346.65(2)(a) (West 1999) (first-time offense of driving under the influence 
punishable only by a fine). 

24 Not all jurisdictions can afford to equip every police car with up-to- 
date computers. Even for those that can, computers often break down or, 
due to heavy usage, communications are significantly delayed. 

25 Petitioners propose (Br. 46) to limit their rule to traffic offenses, but 
they offer nothing other than ipse dixit and the already-rejected argument 
that traffic offenses are multitudinous (see Whren, 517 U.S. at 818-819) to 
explain why such an artificial category should be carved out of the Fourth 

26 

example, while petitioners take for granted that petitioner 
Atwater’s checkbook (she had no other form of identification 
with her, Pet. App. 30a) satisfactorily established her identi- 
fication in a small-town setting based on the officer’s subjec- 
tive knowledge, it is far from clear whether and under what 
circumstances (such as urban settings or areas with tran- 
sient populations, like many of the specialized jurisdictions 
policed by federal officers) an officer’s arrest of a person 
who, like petitioner Atwater, has committed multiple traffic 
offenses and offers only a checkbook for identification will be 
deemed objectively unreasonable under the Fourth Amend- 
ment. See Knowles v. Iowa, 525 U.S. 113, 119 (1998) (“[I]f a 
police officer is not satisfied with the identification furnished 
by the driver, this may be a basis for arresting him rather 
than merely issuing a citation.”). 

26 Similarly, while peti- 

Amendment. In fact, a traffic-offense line would be particularly incongru- 
ous because this Court’s Fourth Amendment jurisprudence has con- 
sistently recognized that persons in automobiles have diminished—not 
enhanced—expectations of liberty and privacy because of the public and 
pervasively regulated character of automobile travel. See, e.g., New York 

v. Class, 475 U.S. 106, 112 (1986) (noting that automobiles, unlike homes or 
offices, are subject to a “web of pervasive regulation”); United States v. 
Martinez-Fuerte, 428 U.S. 543, 561 (1976) (“[O]ne’s expectation of privacy 
in an automobile and of freedom in its operation are significantly different 
from the traditional expectation of privacy and freedom in one’s resi- 
dence.”); South Dakota v. Opperman, 428 U.S. 364, 368 (1976) (noting the 
“obviously public nature of automobile travel,” under which cars routinely 
“travel[] public thoroughfares where both [their] occupants and [their] 
contents are in plain view”). And if the argument that probable cause is 
insufficient to justify an arrest is accepted here, it is not at all clear why 
the Fourth Amendment would not also require balancing the need to 
arrest against its intrusiveness for all other misdemeanors or even some 
felonies, such as those involving possession-amounts of drugs or white- 
collar crimes, where it could equally be argued that (1) the officer unques- 
tionably knew the suspects’ identities because they were established citi- 
zens of the community, (2) they promised not to repeat the offense and 
they had no prior criminal record indicating that they would, and (3) they 
signed a promise to appear in court. 

26 Petitioners’ contention (Br. 43) that permitting arrests for fine-only 
offenses will nullify the holding in Knowles is misplaced. Knowles did not 

27 

tioners’ test (Br. 46) professes to reserve the ability to arrest 
traffic offenders to prevent recurrence of the offense, they 
offer no guidelines by which courts can review the assess- 
ment of officers on the scene, who frequently encounter traf- 
fic offenders for the first time, that a person stopped poses a 
risk of repeating the offense a few miles down the road. 

Judicial review, through the medium of personal damages 
actions, of an officer’s on-the-spot determination that an 
individual is unlikely to appear in court or pay a fine will be 
similarly difficult. While it may be obvious when the offender 
destroys the citation or states that he will not pay, an 
officer’s judgment based on more subtle indications such as 
body language or other indicia of credibility will be harder to 
defend after the fact. Yet the failure to respond to citations 
is a significant problem for law enforcement. We have been 
informed that s significant percentage of all citations issued 
by federal law enforcement agencies go unpaid in the 
absence of concerted collection efforts. 

In our experience, federal officers generally do not make 
arrests for fine-only offenses in the absence of a good reason. 
Nevertheless, a constitutional rule should not be adopted 
that would restrict the officers’ ability to make an on-the- 
spot assessment that an arrest is needed to maintain control 
of a situation, or that forces officers who have probable cause 
to believe that a crime has been committed, on pain of per- 
sonal liability for money damages, to apply such an uncertain 
balancing test on the street and in the heat of an encounter. 
“A single, familiar standard” of probable cause “is essential 
to guide police officers, who have only limited time and 
expertise to reflect on and balance the social and individual 

limit the authority to arrest; it held only that a search incident to arrest is 
impermissible under the Fourth Amendment when a custodial arrest is 
not made. Any officer who searches before effectuating an arrest (see 
Rawlings v. Kentucky, 448 U.S. 98, 110-111 (1980)) still must make an 
arrest regardless of the outcome of that search, or face a Section 1983 
action based on Knowles. 

28 

interests involved in the specific circumstances they 
confront.” Dunaway, 442 U.S. at 213-214. While it no doubt 
frequently is good policy and a wise use of police resources 
not to make arrests for fine-only offenses, persons who have 
violated the duly enacted criminal laws of a jurisdiction have 
no constitutional right to be immune from routine criminal 
processing. 

D. Legislatures Have Prevented And Can Continue To 

Prevent Arbitrary Law Enforcement 

Quite apart from the impracticality of petitioners’ pro- 
posed legal test, petitioners have failed to demonstrate that 
a widespread problem of abusive arrests for misdemeanors 
or traffic offenses exists. To the contrary, even a dissenting 
judge below acknowledged that the facts of the present case 
were “extreme” (Pet. App. 12a) and arose only in the case of 
the “admittedly rare rogue patrol officer” (id. at 19a). In the 
view of the federal government, moreover, although federal 
law authorizes arrests for seatbelt violations (36 C.F.R. 

4.15), it generally is inappropriate to enforce that law other 
than by way of citation. In fact, the United States Park 
Police, in conjunction with the local district courts, have 
developed a “collateral list” procedure under which officers 
may issue citations for certain misdemeanor crimes for 
which arrest is otherwise authorized, including seatbelt of- 
fenses, and may either require a subsequent appearance in 
court or allow the offender to avoid a court appearance by 
paying a designated fine. 

27 

27 Further, the Department of Transportation and its National High- 
way Traffic Safety Administration consider arrests for seatbelt violations 
to be counterproductive to the national goal of increasing seatbelt com- 
pliance, because the adverse public reaction to such arrests could dissuade 
jurisdictions from adopting mandatory seatbelt usage laws, especially 
those laws that make the failure to wear a seatbelt a primary offense 
enforceable in its own right. See generally NHTSA, Standard Enforce- 
ment Saves Lives: The Case for Strong Seat Belt Laws 13 (1999) (noting 
that primary enforcement laws are considerably more effective in enhanc- 

29 

Although not presented by the facts of this case, peti- 
tioners and their amici raise concerns about discriminatory 
enforcement. But this Court made quite clear in Whren that 
such claims should be addressed through the Equal Protec- 
tion Clause, rather than through the Fourth Amendment. 
517 U.S. at 813. Indeed, amicus ACLU acknowledges (Br. 9) 
that courts across the country are increasingly recognizing 
such equal protection claims. 

An additional consideration limits the risk of abusive use 
of the arrest power. As the brief of amicus Institute on 
Criminal Justice indicates, officers face enormous disincen- 
tives to arresting suspects for the commission of a minor 
offense. While traffic stops can take little time, occur outside 
the view of supervisors and other officers, and entail little if 
any paperwork, custodial arrests are an entirely different 
matter. A single arrest can consume hours of an officer’s 
time; his actions are subject to supervisorial review and peer 
scrutiny at the station house; and the paper trail that attends 
arrests would make it much easier to document a pattern of 
discriminatory law enforcement. Officers also generally do 
not advance their own professional interests by consuming 
enormous amounts of time and limited police resources by 
arresting for minor misdemeanors and fine-only offenses. Of- 
ficers who act out of vindictiveness, bias, or other improper 
motive may also be subject to internal disciplinary proce- 
dures. See, e.g., U.S. Marshal’s Office, Code of Professional 
Responsibility: Standards of Conduct (May 17, 1999), avail- 
able at http://156.9.230.3/prt/policy/ directive/web/99-18.htm; 
see also C.A. App. 400, 407, 410 (both Chief of Police and the 
City mayor made clear to respondent Turek that they 
disapproved of his handling of petitioner Atwater’s offense). 

ing seatbelt usage, and thus reducing traffic fatalities, than those laws that 
permit citations for failure to wear a seatbelt only when the vehicle is 
stopped for a different traffic offense). 

30 

Crafting a new constitutional rule for fine-only misde- 
meanors is not the only available safeguard against possible 
abuses. As amicus ACLU demonstrates (Br. 22-25), a 
number of States have taken steps to limit the authority of 
police to arrest for misdemeanor, traffic, or fine-only of- 
fenses. See also App. C, infra; Berkemer, 468 U.S. at 437 

n.26; 625 Ill. Comp. Stat. Ann. ILCS §§ 5/6-800 et seq. 
(Nonresident Violator Compact of 1977). The nature, scope, 
and context of the restrictions adopted, however, vary; no 
uniform national consensus on restricting arrest authority 
has emerged. Accordingly, such decisions are best made 
locally in light of the particular policy concerns and needs for 
law enforcement of individual communities, rather than 
homogenized through constitutional rule. Once a community 
has adjudged certain behavior to be criminal, the Fourth 
Amendment should not require police officers, who have pro- 
bable cause to believe that an offense has been committed, to 
adopt the least restrictive or least intrusive means of 
enforcing the law. See United States v. Sharpe, 470 U.S. 675, 
687 (1985) (“[T]he fact that the protection of the public 
might, in the abstract, have been accomplished by ‘less intru- 
sive’ means does not, by itself, render the search unrea- 
sonable.”). 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

31 

SETH P. WAXMAN 

Solicitor General 
JAMES K. ROBINSON 

Assistant Attorney General 
MICHAEL R. DREEBEN 

Deputy Solicitor General 
PATRICIA A. MILLETT 

Assistant to the Solicitor 

General 
THOMAS M. GANNON 

Attorney 
NOVEMBER 2000 

APPENDIX A 

Federal Criminal Offenses Punishable 
By Fine Only 

5 U.S.C. 552a(i) (knowingly disclosing individually 
identifiable information in government records, or willfully 
maintaining as a government employee a system of records 
without meeting notice requirements, or requesting or 
obtaining individual government records under false 
pretenses); 

7 U.S.C. 228b-4 (while acting as a live poultry dealer or 
employed by such, failing to obey an order of the Secretary 
of Agriculture with respect to financing or payment 
arrangements for poultry); 

7 U.S.C. 472 (failing to furnish information to the De- 
partment of Agriculture on the grades and staple length of 
cotton on hand and failure to permit inspection); 

7 U.S.C. 608c(14) (violations of certain orders governing the 
handling of agricultural commodities); 

7 U.S.C. 1373(a) (1994 & Supp. IV 1998) (failing to make a 
report on or keep a record of certain agricultural activities); 

7 U.S.C. 1596 (violating any provision of chapter 37 of title 7, 
regarding seeds, or rules promulgated thereunder); 

7 U.S.C. 1642(c) (failing to make a report or keep a record as 
required by regulations promulgated by the President under 
the International Wheat Agreement); 

(1a) 

2a 

7 U.S.C. 3604 (failing to keep information or submit a 
required report, knowingly submitting a false report, or 
violating a rule or regulation under the law implementing 
the 1977 International Sugar Agreement); 

12 U.S.C. 1713(b) (violating certification made by mortgagor 
of affordable rental housing to obtain federal mortgage 
insurance that he or she will not discriminate against 
families with children or sell property while mortgage is in 
effect); 

12 U.S.C. 1738(a) (violating certification made by mortgagor 
to obtain federal mortgage insurance, available under 
provision for relief of housing shortage for WWII veterans, 
that he will not discriminate against families with children or 
sell property while mortgage is in effect); 

12 U.S.C. 1750b(a) (violating certification made by 
mortgagor to obtain federal mortgage insurance for property 
in area certified by President as a critical defense housing 
area that he will not discriminate against families with 
children or sell property while mortgage is in effect); 

13 U.S.C. 212 (while serving as an officer or employee of the 
Census Bureau, neglecting or refusing without justification 
to perform duties); 

13 U.S.C. 223 (while the owner or manager of a hotel, 
apartment house, boarding or lodging house, tenement, or 
other building, refusing or willfully neglecting to furnish 
names of occupants to census or to give free ingress and 
egress to census employees); 

14 U.S.C. 83 (establishing, erecting, or maintaining any aid 
to maritime navigation in or adjacent to waters subject to 

3a 

the jurisdiction of the United States without obtaining 
authority to do so from the Coast Guard); 

14 U.S.C. 84 (removing, changing the location of, willfully 
damaging, making fast to, or interfering with any aid to 
maritime navigation installed by the Coast Guard); 

14 U.S.C. 85 (violating any rule or regulation promulgated 
by the Coast Guard with respect to the establishment, 
maintenance and operations of lights and signals on fixed and 
floating structures); 

15 U.S.C. 159 (engaging in business with China under a name 
in connection with which the legend “Federal Inc. U.S.A.” is 
used); 

15 U.S.C. 241 (packing, selling, or offering for sale lime in 
unmarked barrels, or selling, charging for, or purporting to 
deliver any less weight of lime than established by law); 

15 U.S.C. 330d (knowingly and willfully violating Section 
330a of Title 15, which prohibits engaging or attempting to 
engage in weather modification activities without submitting 
required reports to the Secretary of Commerce); 

15 U.S.C. 1338 (violating laws on cigarette labeling and 
advertising); 

15 U.S.C. 4404(a) (violating laws on warnings and labeling 
for smokeless tobacco); 

16 U.S.C. 373 (causing damage to Hot Springs National 
Park); 

4a 

16 U.S.C. 374 (taking, using, or bathing in water of Hot 
Springs National Park in violation of rules and regulations 
promulgated by the Secretary of the Interior and without 
providing evidence of being a patient of a physician 
authorized to prescribe the waters of the Hot Springs); 

16 U.S.C. 422d (destroying monuments in Moores Creek 
National Battlefield); 

16 U.S.C. 423f (destroying monuments in Petersburg 
National Battlefield); 

16 U.S.C. 425g (destroying monuments in Fredericksburg 
and Spotsylvania County Battle Fields Memorial); 

16 U.S.C. 426i (destroying monuments in Stones River 
National Battlefield); 

16 U.S.C. 428i (destroying monuments in Fort Donelson 
National Battlefield); 

16 U.S.C. 430h (destroying monuments in Vicksburg 
National Military Park); 

16 U.S.C. 430i (destroying monuments in Guilford Court- 
house National Military Park); 

16 U.S.C. 430q (destroying monuments in Monocacy Na- 
tional Battlefield); 

16 U.S.C. 460l-6a(e) (violating rules and regulations regard- 
ing the collection of fees at national parks, military parks, 
monuments, and seashores); 

5a 

16 U.S.C. 916e (failing to make, keep, or furnish any catch 
return record or other report required by the whaling 
convention or other law or regulation); 

18 U.S.C. 154 (1994 & Supp. IV 1998) (while serving as a 
bankruptcy trustee, purchasing property of bankruptcy 
estate or knowingly refusing reasonable opportunity for 
inspection of documents and accounts relating to the estate); 

18 U.S.C. 243 (excluding juror on account of race or color); 

18 U.S.C. 244 (discriminating against person wearing uni- 
form of armed forces); 

18 U.S.C. 291 (while serving as a judge, clerk, or deputy 
clerk, purchasing for less than full value a claim for the fee, 
mileage, or expenses of a witness, juror, or officer of the 
court); 

18 U.S.C. 431 (while serving as a member of Congress, 
making or entering into a contract or agreement for the 
United States); 

18 U.S.C. 475 (imitating an obligation or security of the 
United States in an advertisement or attaching a notice or 
advertisement to such an instrument); 

18 U.S.C. 489 (making or bringing from a foreign country 
with intent to sell, give away, or use any token, disk, or 
device in the likeness of any of the coins of the United States 
or of any foreign country); 

18 U.S.C. 511A (affixing a theft prevention decal to a motor 
vehicle without authorization); 

6a 

18 U.S.C. 1694 (while operating a conveyance on a post 
route, carrying letters or packets otherwise than in the 
mail); 

18 U.S.C. 1697 (while operating a conveyance, knowingly 
permitting the conveyance of anyone acting as or employed 
as a private express for the conveyance of letters or 
packages); 

18 U.S.C. 1698 (while in charge of a vessel operating 
between ports in the United States, failing to deliver to the 
postmaster within the required time all letters and packages 
brought by the vessel and not part of the cargo); 

18 U.S.C. 1699 (breaking bulk before arranging for the 
delivery of all letters on board to the nearest post office); 

18 U.S.C. 1713 (while serving as an officer or employee of the 
postal service, issuing a money order before receiving the 
money therefor); 

18 U.S.C. 1719 (making use of any official envelope, label, or 
indorsement authorized by law to avoid the postage or 
registry fee for personal mail); 

18 U.S.C. 1722 (submitting false evidence to the post office 
relative to any publication for the purpose of securing the 
admission thereof at the second-class rate); 

18 U.S.C. 1723 (knowingly concealing or inclosing any matter 
of a higher class mail in that of a lower class and depositing 
same for the conveyance by mail at a lower rate than would 
be charged for the material); 

7a 

18 U.S.C. 1725 (knowingly and willfully depositing mailable 
matter on which no postage has been paid with intent to 
avoid the payment of lawful postage thereon); 

18 U.S.C. 1729 (setting up or professing to keep a post office 
without authority from the postal service); 

18 U.S.C. 1734 (while an editor or publisher, printing in a 
publication entered as second class mail editorial or other 
reading matter for which payment has been made without 
marking the same “advertisement”); 

18 U.S.C. 1762 (1994 & Supp. IV 1998) (failing to mark as 
such packages shipped in interstate commerce containing 
goods, wares, or merchandise produced wholly or in part by 
convicts or prisoners, except convicts or prisoners on pro- 
bation or parole); 

18 U.S.C. 2075 (while an officer of the United States, failing 
to make a return or report required by Congress or a 
regulation of the Department of Treasury within the time 
prescribed); 

18 U.S.C. 2236 (1994 & Supp. IV 1998) (while serving as an 
officer, employee, or agent of the United States, searching 
any private dwelling used as such without a warrant, or 
maliciously and without reasonable cause searching any 
other building or property without a search warrant, 
excepting officers who obtain consent or who are serving a 
warrant of arrest or arresting or attempting to arrest a 
person committing or attempting to commit an offense in the 
officer’s presence); 

8a 

18 U.S.C. 2721-2723 (knowingly violating prohibition on 
release and use of certain personal information from state 
motor vehicle records); 

18 U.S.C. 3162(b) (while serving as an attorney in a criminal 
trial, knowingly allowing a case to be set for trial without 
disclosing fact that material witness will not be available at 
trial, or filing a motion solely for the purpose of delay, or 
making a false statement for the purpose of obtaining a 
continuance, or otherwise willfully failing to proceed to trial 
without justification); 

19 U.S.C. 58b(d) (failure to pay a fee for customs service); 

19 U.S.C. 507(a) (neglecting or refusing to assist a customs 
officer upon proper demand in making any arrest, search, or 
seizure authorized by a law enforced or administered by 
customs officers); 

21 U.S.C. 16-17 (violating laws prohibiting adulterated or 
misbranded foods or drugs); 

22 U.S.C. 3104(e) (violating regulations governing infor- 
mation on international investments); 

25 U.S.C. 202 (inducing an Indian to execute a contract, 
deed, or mortgage purporting to convey an interest in land 
held by the United States in trust for the Indian, unless the 
lease or deed is authorized by law); 

26 U.S.C. 7262 (violating occupational tax laws relating to 
wagering); 

9a 

26 U.S.C. 7275 (failing to indicate on the ticket or ad- 
vertisement for a ticket for air travel the amount of the price 
attributable to port taxes); 

27 U.S.C. 207 (violating certain laws regarding the sale of 
intoxicating liquors); 

33 U.S.C. 421 (depositing refuge in or near Lake Michigan in 
or near Chicago); 

33 U.S.C. 495 (failing or refusing to comply with certain 
orders of the Secretary of Transportation regarding bridges 
over navigable waters); 

33 U.S.C. 502 (willfully failing to comply with a lawful order 
of the Secretary of Transportation requiring alteration to a 
bridge that is an unreasonable obstruction of a navigable 
waterway of the United States); 

33 U.S.C. 519 (willfully failing to comply with a lawful order 
of the Secretary of Transportation regarding a bridge over 
navigable waters of the United States); 

33 U.S.C. 915 (1986) (requiring an employee covered by the 
Longshore and Harbor Workers’ Compensation Act to enter 
into an invalid agreement to contribute to a benefit fund for 
the purpose of providing medical services and supplies); 

33 U.S.C. 941 (while an employer of persons covered by the 
Longshore and Harbor Workers’ Compensation Act, failing 
to furnish and maintain reasonably safe places of em- 
ployment); 

38 U.S.C. 7332 (violating section providing for confidentiality 
of patient records of the Veterans Administration relating to 

10a 

drug abuse, alcoholism, HIV infection, and sickle cell 
anemia); 

38 U.S.C. 5701(a) (willfully using names of members, depen- 
dants, or former members of the Armed Forces for a pur- 
pose other than that for which release of the names is 
authorized); 

42 U.S.C. 290dd-2(a) (failing to comply with law providing 
for the confidentiality of patient records from substance 
abuse treatment and education programs conducted or 
assisted by the United States); 

42 U.S.C. 1437d(q)(6) (Supp. IV 1998) (knowingly and 
willfully requesting or obtaining information about an appli- 
cant for public housing under false pretenses or knowingly or 
wilfully disclosing such information to a person not entitled 
to receive it); 

42 U.S.C. 14133(c) (disclosing without authorization or 
knowingly obtaining without authorization individually iden- 
tifiable DNA information in a database created or main- 
tained by a federal law enforcement agency); 

42 U.S.C. 2277 (while or subsequent to serving in a covered 
capacity, knowingly communicating restricted data to an 
unauthorized person relating to the development and control 
of atomic energy); 

42 U.S.C. 3544 (c)(3)(A) (1994 & Supp. IV 1998) (knowingly 
and willfully requesting or obtaining information about an 
applicant for or participant in public housing without consent 
or agreement); 

11a 

43 U.S.C. 315a (violating law or regulation on the protection, 
administration, regulation, and improvement of grazing 
districts); 

43 U.S.C. 316k (willfully grazing any class of livestock 
without authority under a lease or permission on lands in a 
grazing district in Alaska as designated by the Secretary of 
the Interior); 

46 U.S.C. App. 194 (violating law prohibiting owners of 
vessels shipping goods to or between ports in the United 
States from inserting in any bill of lading or shipping 
document any agreement lessening the obligation of due 
diligence in operating the vessel or violating law requiring 
vessel transporting merchandise to or between ports of the 
United States to issue to shippers a bill of lading or other 
shipping document); 

47 U.S.C. 502 (willfully and knowingly violating any rule, 
regulation, restriction, or condition made or imposed by the 
FCC or imposed by an international radio or wire com- 
munications treaty); 

49 U.S.C. 526 (knowingly and willfully violating certain 
sections of Title 49, regulating motor carriers, or regulations 
or orders of the Secretary of Transportation relating 
thereto); 

49 U.S.C. 46309(a) (while acting as an air carrier or employee 
thereof, knowingly and willfully offering or granting 
concessions or price rebates to obtain transportation at less 
than the lawful price, or receiving same). 

49 U.S.C. 46316(a) (knowingly and willfully violating air 
commerce and safety laws or regulations or orders of the 

12a 

Secretary of Transportation or Administrator of the Federal 
Aviation Administration with respect to aviation safety 
duties). 

APPENDIX B 

Statutes Authorizing Warrantless Arrests for 

Misdemeanor Offenses 

Ala. Code § 15-10-3(a)(1) (1995 & Supp. 1999), revised by 
2000 Ala. Acts 266 (authorizing warrantless arrest for any 
“public offense” committed or breach of the peace 
threatened in the presence of the officer); 

Alaska Stat. § 12.25.030(a)(1) (Michie 1999) (authorizing 
arrest without a warrant “for a crime committed * * * in 
the presence of the person making the arrest”); 

Ariz. Rev. Stat. Ann. § 13-3883(a)(2) (West Supp. 1999) 
(authorizing arrest without a warrant when a misdemeanor 
has been committed in the officer’s presence); 

Ark. Code Ann. § 16-81-106(b)(2)(a) (Michie Supp. 1999) 
(authorizing arrest by an officer without a warrant “where a 
public offense is committed in his presence”); 

Cal. Penal Code § 836(a)(1) (West Supp. 2000) (authorizing 
warrantless arrest where “the person to be arrested has 
committed a public offense in the officer’s presence”); 

Colo. Rev. Stat. § 16-3-102(1)(b) (1999) (authorizing officer to 
make warrantless arrest when “[a]ny crime has been or is 
being committed” in the officer’s presence); 

Conn. Gen. Stat. Ann. § 54-1f(a) (1994 & West 2000) 
(authorizing warrantless arrests for “any offense” when 
arrestee is taken in the act or on the speedy information of 
others); 

(1b) 

2b 

Del. Code Ann. tit. 11, § 1904(a)(1) (1995) (authorizing 
warrantless arrest for any misdemeanor committed in the 
officer’s presence); 

D.C. Code Ann. § 23-581(a)(1)(B) (1996) (authorizing 
warrantless arrest where officer has probable cause to 
believe a person has committed an offense in the officer’s 
presence); 

Fla. Stat. Ann. § 901.15(1) (West 2000), amended by 2000 
Fla. Sess. Law Serv. 00-369 (West) (warrantless arrest 
allowed if misdemeanor or ordinance violation committed in 
presence of officer) 

Ga. Code Ann. § 17-4-20 (a) (1997) (authorizing warrantless 
arrest by officer “for a crime * * * if the offense is 
committed in such officer’s presence”); 

Haw. Rev. Stat. Ann. § 803-5(a) (Michie 1999) (authorizing 
warrantless arrest “when the officer has probable cause to 
believe that [a] person has committed any offense”); 

Idaho Code § 19-603(1) (1997) (authorizing warrantless 
arrest by officer “[f]or a public offense committed or 
attempted in his presence”); 

725 Ill. Comp. Stat. Ann 5/107-2(1)(c) (West 1992) 
(authorizing arrest by officer without a warrant when “[h]e 
has reasonable grounds to believe that the person is 
committing or has committed an offense”); 

Ind. Code Ann. § 35-33-1-1(a)(4) (Michie 1998) (authorizing 
warrantless arrest when the officer has probable cause to 
believe a person “is committing or attempting to commit a 
misdemeanor in the officer’s presence”); 

3b 

Iowa Code Ann. § 804.7(1) (West 1994) (authorizing warran- 
tless arrest “[f]or a public offense committed or attempted in 
the peace officer’s presence”); 

Kan. Stat. Ann. § 22-2401(d) (Supp. 1999) (authorizing war- 
rantless arrest for “[a]ny crime, except a traffic infraction or 
a cigarette or tobacco infraction” committed in the officer’s 
view); 

Ky. Rev. Stat. Ann. § 431.005(1)(d) (Michie 1999) (authoriz- 
ing warrantless arrest for any offense punishable by 
confinement committed in the officer’s presence); i d. 
§ 431.015(2) (officer must issue citation rather than arrest for 
certain violations); 

La. Code Crim. Proc. Ann. art. 213(3) (West 1991) (authoriz- 
ing warrantless arrest where the officer “has reasonable 
cause to believe that the person to be arrested has com- 
mitted an offense”); 

Me. Rev. Stat. Ann. tit. 15, § 704 (West 1980) (authorizing 
warrantless arrest of “persons found violating any law of the 
State or any legal ordinance or bylaw of a town”) and id. tit. 
17-A, § 15(B) (West 1983 & Supp. 1997), amended by 2000 
Me. Laws 644, (authorizing warrantless arrests for misde- 
meanors committed in the officer’s presence); 

Md. Code Ann. art. 27, § 594B(a) (1996 & Supp. 1999) 
(authorizing warrantless arrest of any person who commits, 
or attempts to commit, “any felony or misdemeanor” in the 
presence of an officer); 

Mass. Ann. Laws ch. 276, § 28 (Law. Co-op. 1992 & Supp. 
1998) (warrantless arrest authorized for designated 
misdemeanor offenses); id. ch. 272, § 60 (Law. Co-op. 1992) 

4b 

(authorizing warrantless arrest for littering offenses where 
identity of arrestee is not known to officer); 

Mich. Comp. Laws Ann. § 764.15(a) (West 2000) (officer, 
without a warrant, may arrest a person if a felony, misde- 
meanor, or ordinance violation is committed in the officer’s 
presence); id. § 780.581 (West 1998) (if the offense is 
punishable by a fine or by a prison term of not more than one 
year, the officer must take the person before a magistrate 
without unnecessary delay or release the person on bond); 

Minn. Stat. Ann. § 629.34(c)(1) (West Supp. 2000) (authoriz- 
ing warrantless arrest “[w]hen a public offense has been 
committed or attempted in the officer’s presence”); 

Miss. Code Ann. § 99-3-7 (1999 & Supp. 1999) (warrantless 
arrest allowed for indictable offense committed in presence 
of officer)1; i d. § 45-3- 21(1)(a)(vi) (1999) (authorizing war- 
rantless arrest by Highway Safety Patrol Officers of “any 
person or persons committing or attempting to commit any 
misdemeanor, felony or breach of the peace within their 
presence or view”); 

Mo. Ann. Stat. § 479.110 (West 1987) (authorizing warrant- 
less arrest of “any person who commits an offense in [the 
officer’s] presence”); 

Mont. Code Ann. § 46-6-311(1) (1997) (authorizing warrant- 
less arrest if “the officer has probable cause to believe that 
the person is committing an offense or that the person has 
committed an offense and existing circumstances require 
immediate arrest”); 

1 This statute applies to misdemeanor offenses. Butler v. State, 212 

So.2d 573 (Miss. 1968). 

5b 

Neb. Rev. Stat. § 29-404.02(2)(d) (1995) (authorizing war- 
rantless arrest when the officer has probable cause to 
believe that the person has committed a misdemeanor in the 
presence of the officer); 

Nev. Rev. Stat. § 171.172 (1999) (authorizing warrantless 
arrest by officer in fresh pursuit of a person who commits 
“any criminal offense” in the presence of the officer); 

N.H. Rev. Stat. Ann. § 614:7 (1986 & Supp. 1999) 
(authorizing warrantless arrest by officer in fresh pursuit of 
any person who has committed “any criminal offense” in the 
presence of the officer); id. §§ 594:10(I)(a), 594:14 (officer 
may arrest without warrant upon probable cause for 
misdemeanor or violation committed in officer’s presence, or 
may issue summons in lieu of arrest); 

N.J. Stat. Ann. § 53:2-1 (West 1986 & Supp. 2000) (authoriz- 
ing state police to arrest without a warrant “for violations of 
the law committed in their presence”); 

N.M. Stat. Ann. § 3-13-2(A)(4)(d) (Michie Supp. 1999) 
(authorizing officers to “apprehend any person in the act of 
violating the laws of the state or the ordinances of the 
municipality and bring him before competent authority for 
examination and trial.”); id. § 30-3-6(B) (Michie 1994) 
(authorizing warrantless arrest for assault, battery, public 
affray or criminal damage to property); id. § 30-16-16(B) 
(authorizing warrantless arrest for falsely obtaining services 
or accommodations); id. § 30-16-23 (authorizing arrest with- 
out warrant of any person officer has probable cause to 
believe has committed the crime of shoplifting); id. 
§ 3-23-3 (Michie Supp. 1999) (warrantless arrests for 
violations of forest fire laws committed in officer’s presence); 
id. § 31-1-7 (authorizing warrantless arrests in cases of do- 

6b 

mestic disturbance); see also id. 31-1-6 (Michie 2000) (officer 
who arrests a person without a warrant for a petty mis- 
demeanor may offer the person arrested the option of a 
citation to appear instead of taking him to jail); 

N.Y. Crim. Proc. Law § 140.10(1)(a) and (2) (McKinney 1992) 
(warrantless arrest allowed when officer has probable cause 
to believe any offense has been committed in his presence 
and probable cause to believe person to be arrested 
committed the offense; in the case of petty offenses, 
authority to arrest is limited to geographical area of officer’s 
employment and county in which such offense was com- 
mitted or believed to have been committed or in adjoining 
county); 

N.C. Gen. Stat. § 15A-401(b) (1999) (authorizing a warrant- 
less arrest where an officer has probable cause to believe the 
person has committed “a criminal offense” in the officer’s 
presence and for misdemeanors out of the officers presence 
in certain circumstances); 

N.D. Cent. Code § 29-06-15 (1)(a) (1991) (authorizing war- 
rantless arrest “[f]or a public offense, committed or at- 
tempted in the officer’s presence”); 

Ohio Rev. Code Ann. § 2935.03 (Anderson 1999) (authorizing 
warrantless arrest of a person “found violating * * * a law 
of this state, an ordinance of a municipal corporation, or a 
resolution of a township”); but see id. § 2935.26 (providing 
that notwithstanding any other provision of the Revised 
Code, when a law enforcement officer is otherwise author- 
ized to arrest a person for the commission of a minor 
misdemeanor, the officer shall not arrest the person, but 
shall issue a citation, except in specified circumstances); 

7b 

Okla. Stat. Ann. tit. 22, § 196(1) (West 1992 & Supp. 2000), as 
amended by 2000 Okla. Sess. Laws 370, (authorizing 
warrantless arrests “[f]or a public offense, committed or 
attempted in [the officer’s] presence”); 

Or. Rev. Stat. § 133.310(1) (1997) (authorizing warrantless 
arrest upon probable cause for any offense except 
unclassified offenses, unless the maximum penalty allowed 
by law is equal to or greater than the maximum penalty 
allowed for a Class C misdemeanor; authorizing warrantless 
arrest for any crime occurring in the officer’s presence); id. § 
161.515(1) (a crime is an offense for which a sentence of 
imprisonment is authorized); 

Pa. Stat. Ann. tit. 71, § 252(a) (West 1990) (authorizing war- 
rantless arrests by state police “for all violations of the law, 
including laws regulating the use of the highways, which 
they may witness”); id. tit. 53, § 37005 (West 1998) (police 
officers “may, within the city or upon property owned or 
controlled by the city or by a municipal authority of the city 
within the Commonwealth, without warrant and upon view, 
arrest and commit for hearing any and all persons guilty of 
breach of the peace, vagrancy, riotous or disorderly conduct 
or drunkenness, or who may be engaged in the commission of 
any unlawful act tending to imperil the personal security or 
endanger the property of the citizens, or violating any of the 
ordinances of said city for the violation of which a fine or 
penalty is imposed.”); id. tit. 13, § 45 (authorizing, without 
warrant and upon view, “arrest and commitment for hearing 
of any and all persons guilty of a breach of the peace, 
vagrancy, riotous or disorderly conduct or drunkenness or 
may be engaged in the commission of any unlawful act 
tending to imperil the personal security or endanger the 
property of the citizens, or violating any ordinances of said 

8b 

borough, for the violation of which a fine or penalty is 
imposed.”); 

R.I. Gen. Laws § 12-7-3 (1994) (authorizing warrantless 
misdemeanor and petty misdemeanor arrests where “the 
officer has reasonable ground to believe that [the] person 
cannot be arrested later or may cause injury to himself or 
herself or others or loss or damage to property unless 
immediately arrested”); 

S.C. Code Ann. § 17-13-30 (Law. Co-op. 1985) (authorizing 
warrantless arrests of persons who, in the presence of the 
officer, “violate any of the criminal laws of this State if such 
arrest be made at the time of such violation of law or 
immediately thereafter”); 

S.D. Codified Laws § 23A-3-2 (Michie 1998) (authorizing 
warrantless arrest by officer “[f]or a public offense, other 
than a petty offense, committed or attempted in his pres- 
ence”); 

Tenn. Code Ann. § 40-7-103(a)(1) (1997 & Supp. 1999) 
(authorizing law enforcement officer to arrest without a 
warrant “[f]or a public offense committed or a breach of the 
peace threatened in the officer’s presence”); see also id. 
§ 40-7-118(b)(1) (1997) (“officer who has arrested a person for 
the commission of a misdemeanor * * * shall issue a 
citation to such arrested person to appear in court in lieu of 
the continued custody and the taking of the arrested person 
before a magistrate”); 

Tex. Code Crim. P. Ann. art. 14.01 (West 1977) (authorizing 
officer’s arrest of offender without a warrant “for any 
offense committed in his presence or within his view”); 

9b 

Utah Code Ann. § 10-3-915 (1999) (authorizing warrantless 
arrests for “any offense directly prohibited by the laws of 
this state or by ordinance”); id. § 77-7-2 (authorizing 
warrantless arrest for any public offense committed in 
presence of officer or if officer has reasonable cause to 
believe offense was committed and reasonable cause for 
believing person may flee, destroy evidence, or injure 
another); 

Vt. R. Crim. P. 3(a) (2000) (authorizing warrantless arrests 
where officer has probable cause to believe that “a crime” is 
committed in the presence of the officer); see also id. 3(c) 
(“A law enforcement officer acting without warrant who is 
authorized to arrest a person for a misdemeanor under 
subdivision (a) of this rule shall, except as provided in 
paragraph (2) of this subdivision, issue a citation to appear 
before a judicial officer in lieu of arrest.”); 

Va. Code Ann. § 19.2-81 (Michie 1995 & Supp. 1999) (author- 
izing warrantless arrest of “any person who commits any 
crime in the presence of [an] officer”); 

Wash. Rev. Code Ann. § 10.31.100 (West 1990 & Supp. 1999), 
as amended by 2000 Wash. Laws 119 (authorizing warrant- 
less arrests for misdemeanors committed in the presence of 
the officer); 

W. Va. Code § 62-10-9 (2000) (authorizing warrantless 
arrests “for all violations of any of the criminal laws of the 
United States, or of this state, when committed in [an 
officer’s] presence”); 

Wis. Stat. Ann. § 968.07(1)(D) (West 1998) (authorizing 
warrantless arrest when “[t]here are reasonable grounds to 

10b 

believe that the person is committing or has committed a 
crime”); 

Wyo. Stat. Ann. § 7-2-102(b)(i) (Michie 1999) (authorizing 
warrantless arrest when “[a]ny criminal offense” is com- 
mitted “in the officer’s presence”). 

APPENDIX C 

State-Law Limitations on Arrests for 

Traffic Offenses 

The following States require the issuance of a citation in 
lieu of arrest in some circumstances: 

Ala. Code § 32-1-4 (1999) (when any person is arrested for a 
motor vehicle misdemeanor, the officer shall release upon 
written bond to appear, unless officer has good cause to 
believe person has committed any felony, or person charged 
with offense resulting in injury or death or offense of DWI); 

Alaska Stat. § 12.25.180(b) (Michie 1998) (when person is 
stopped for the commission of a misdemeanor or the viola- 
tion of a municipal ordinance, person shall be issued citation 
unless satisfactory evidence of identity not furnished or 
person refuses to accept citation or give written promise to 
appear); 

Ark. Code Ann. § 27-14-405 (Michie 1994) (authorizing 
arrests upon view and without warrant for any violation 
committed in their presence of laws regulating the operation 
of vehicles or the use of the highways); id. § 27-50-601 
(procedure prescribed shall not otherwise be exclusive of 
any other method prescribed by law for the arrest and 
prosecution of a person for an offense of like grade.); id. § 27- 
50-603 (providing for release from custody for traffic 
offenses on written promise to appear); 

Cal. Veh. Code § 40504 (West 1985 & Supp. 2000) (officer 
must deliver copy of notice to appear to arrested person; 

(1c) 

2c 

upon promise to appear and identification, the arresting 
officer shall release the person arrested from custody); 

Colo. Rev. Stat. § 42-4-1707 (1999) (for violation of vehicle 
code punishable as a misdemeanor, petty offense, or 
misdemeanor traffic offense, other than a violation for which 
a penalty assessment notice may be issued, officer may issue 
and serve upon the defendant a summons and complaint); id. 
§ 42-4-1712 (provisions of vehicle code shall govern all police 
officers in making arrests without a warrant or issuing 
citations for violations of vehicle code, for offenses or 
infractions committed in their presence, but the procedure 
prescribed in this article shall not otherwise be exclusive of 
any other method prescribed by law for the arrest and 
prosecution of a person for an offense or infraction of like 
grade); 

Fla. Stat. Ann. § 901.15 (West 1996 & Supp. 2000) 
(authorizing warrantless arrest for misdemeanor committed 
or ordinance violated in presence of officer); id. § 321.05(3)(a) 
(highway patrol has authority to make arrests while in fresh 
pursuit of a person believed to have violated the traffic 
laws); id. § 318.14 (specifying that police must issue a citation 
in lieu of arrest for certain noncriminal traffic infractions); 

Haw. Rev. Stat. Ann. § 286-10 (Michie 1998) (upon arresting 
a person for violation of any provision of the code, officer 
shall issue to the alleged violator a summons or citation); 

Ky. Rev. Stat. Ann. § 431.015(2) (Michie 1999), § 189.290(1) 
(Michie 1997) (officer must issue citation rather than arrest 
for certain motor vehicle violations, but exceptions include 
any one who fails to operate his or her vehicle in a “careful 
manner, with regard for the safety and convenience of 
pedestrians and other vehicles upon the highway”); 

3c 

La. Rev. Stat. Ann. § 32:391 (West 1989) (officer shall release 
on promise to appear person arrested for motor vehicle 
violation, except in certain situations, for example, if officer 
has good cause to believe person committed any felony or 
misdemeanor); 

Md. Code Ann. Transp. II § 26-202(a)(2) (1998) (authorizing 
officer to arrest without warrant for any traffic law violation 
only if violation committed within officer’s presence and 
person does not furnish satisfactory proof of identify or 
officer reasonably believes traffic citation will be ignored or 
in other specified circumstances); 

Mich. Comp. Laws Ann. § 764.15(1)(a) (West 2000) (authoriz- 
ing arrest without a warrant for misdemeanor, or ordinance 
violation committed in the officer’s presence); but see id. 
§ 257.907 (West 1990 & Supp. 2000) (certain traffic offenses 
are civil infractions); 

Minn. Stat. Ann. § 169.91 (West 1986 & Supp. 2000) (officer 
shall issue written notice to appear to person arrested for 
motor vehicle violation, but must bring person before judge 
in certain instances, for example, when there is reasonable 
cause to believe person will leave state); 

Neb. Rev. Stat. Ann. §§ 29-427, 29-432, 29-435, 60-684 
(Michie 1995) (officer shall issue citation in lieu of arrest for 
traffic infraction, but can arrest and detain person if, for 
example, officer believes person will not appear, or will cause 
immediate harm if not detained, or person has no ties to 
community); 

N.M. Stat. Ann. § 66-2-12(A)(2) (Michie 1998) (authorizing 
warrantless arrests for motor vehicle code violations com- 
mitted in the presence of the officer); id. § 66-8-123 (officer 

4c 

must issue summons in lieu of arrest for traffic offense with 
five exceptions); 

N.D. Cent. Code § 39-07-07 (1987 & Supp. 1997) (requires the 
issuance of a summons in lieu of arrest with some 
exceptions); 

Ohio Rev. Code Ann. § 2935.03 (Anderson 1999) (warrantless 
arrest allowed if violated state law, municipal ordinance, or 
township resolution in presence of officer and in jurisdiction 
in which the officer is appointed, employed, or elected); id. § 
2935.26 (“Notwithstanding any other provision of the 
Revised Code, when a law enforcement officer is otherwise 
authorized to arrest a person for the commission of a minor 
misdemeanor, the officer shall not arrest the person, but 
shall issue a citation,” unless certain circumstances apply); 

Okla. Stat. Ann. tit. 22, § 1115.1(A) (West Supp. 2000) (officer 
shall release on personal recognizance person arrested solely 
for misdemeanor traffic violation if, among other require- 
ments, officer is satisfied as to person’s identify); 

Or. Rev. Stat. §§ 133.310(1) (1990 & Supp. 1998), 810.410 
(1995 & Supp. 1998) (officer shall not arrest person who 
commits traffic infraction and may issue citation instead; 
however, officer can arrest person for specified offense, for 
example, reckless driving); 

R.I. Gen. Laws § 12-7-3 (1994) (warrantless arrest allowed 
when officer has probable cause to believe misdemeanor 
committed in his presence and probable cause to believe 
person to be arrested committed the offense); id. § 11-1-2 
(offense punishable by fine of not more than $500 is a 
violation only); 

5c 

S.C. Code Ann. § 56-25-30 (Law. Co-op. 1991) (officer may 
release person on own recognizance who has accepted a 
traffic citation issued by the officer); 

S.D. Codified Laws § 32-33-2 (Michie 1998) (citation required 
whenever violation punishable as misdemeanor); 

Tenn. Code Ann. § 40-7-118(b)(1) (1997) (citation in lieu of 
continued custody for misdemeanor offenses); 

Vt. R. Crim. P. 3(a), (c) (officer who has grounds to arrest 
person for misdemeanor shall issue citation in lieu of arrest, 
but may arrest in certain specified instances, for example, if 
person fails to furnish adequate proof of identity, arrest is 
necessary to obtain nontestimonial evidence, or person has 
insufficient ties to community); 

Va. Code Ann. § 46.2-936 (Michie 1998 & Supp. 1999) (for 
misdemeanor traffic violations, officer shall issue a summons 
in lieu of arrest); 

Wash. Rev. Code Ann. § 46.64.015 (West 1987 & Supp. 1999) 
(officer must issue citation in lieu of arrest for traffic 
offenses except in certain circumstances); id. 10.31.100(3) 
(West 1990 & Supp. 1999) (authorizing warrantless arrests 
for certain traffic infractions) 

Wis. Stat. Ann. §§ 345.22, 345.23 (West 1999) (officer shall 
release traffic-regulation violator arrested without warrant 
under certain conditions; otherwise officer has discretion to 
take violator into custody). 

6c 

The following States put no statutory limits on police 
discretion to arrest for traffic offenses: 

Ariz. Rev. Stat. Ann. § 13-3883(B) (West Supp. 1999) (officer 
may stop and detain a person as is reasonably necessary to 
investigate an actual or suspected violation of any traffic law 
committed in the officer’s presence); 

Conn. Gen. Stat. Ann. § 54-1f(a) (West 1994 & Supp. 2000) 
(officer may arrest in his precinct for any offense when 
person taken while committing offense and arrest made upon 
speedy information of others); 

Del. Code Ann. tit. 21, § 701 (1995), as amended by 2000 
Delaware Laws Ch. 325 (West) (authorizing warrantless 
arrest for motor vehicle violations when officer has probable 
cause to believe violation committed in his presence and 
probable cause to believe person to be arrested committed 
the offense); 

D.C. Code Ann. § 23-581(a)(1)(B) (1996) (authorizing war- 
rantless arrest where officer has probable cause to believe 
offense committed in the officer’s presence); 

Ga. Code Ann. § 17-4-23 (1997) (officer has discretion to give 
citation or arrest for violation of motor vehicle laws); 

Idaho Code § 49-1407 (1994) (officer who stops someone for 
traffic violation has discretion to give a traffic citation or 
take arrestee without unnecessary delay before the proper 
magistrate as specified); id. § 19-701A (1997) (officer in fresh 
pursuit of a person who is reasonably believed by him to 
have committed, or attempted to commit, any criminal 
offense or traffic infraction in the presence of the officer, 

7c 

shall have authority to pursue, arrest and hold in custody or 
cite such person anywhere in this state); 

Ind. Code Ann. §§ 9-26-8-1, 9-26-8-2, 9-30-6-3 (Michie 1997), § 
35-33-1-1(a)(3) (Michie 1998) (providing that the procedure 
prescribed in the motor vehicle chapter is not the exclusive 
method for the arrest and prosecution of a person for a 
similar offense; specifying certain offenses under the vehicle 
code for which officer may arrest without a warrant); id. § 9- 
30-2-5(a) (Michie 1997) (state resident arrested for a 
misdemeanor regulating the use and operation of motor 
vehicles, other than the misdemeanor of operating a vehicle 
while intoxicated, and not immediately taken to court shall 
be released from custody by the arresting officer upon 
signing a written promise to appear in the proper court at a 
time and date indicated on the promise); 

Iowa Code Ann. § 804.7 (West 1994) (authorizing arrest for 
an offense committed in officer’s presence or where officer 
has reasonable grounds to believe a public offense was com- 
mitted); 

Kan. Stat. Ann. §§ 8-2104 (1991), 8-2106 (1991 & Supp. 1999) 
(officer has discretion to arrest or issue citation for misde- 
meanor motor vehicle offenses); 

Mass. Ann. Laws ch. 90, § 21 (Law. Co-op. 1994) (officer may 
arrest without warrant and keep in custody for not longer 
than 24 hours, persons who commit certain motor vehicle 
offenses); 

Miss. Code Ann. § 27-19-133 (1999) (authorizing warrantless 
arrests for operating any motor vehicle contrary to the 
provisions of the vehicle code; if vehicle operator is taken 
into custody, he is entitled to an immediate hearing or to be 

8c 

released from custody upon giving a good and sufficient bond 
to appear and answer for the violation); 

Mo. Ann. Stat. § 43.195 (West 1992) (state highway patrol 
may arrest on view, and without a warrant, any person the 
officer sees violating or who has reasonable grounds to 
believe has violated any state motor vehicle law); 

Mont. Code Ann. § 46-6-311 (1997) (officer may arrest a 
person when a warrant has not been issued if the officer has 
probable cause to believe that the person is committing an 
offense or that the person has committed an offense and 
existing circumstances require immediate arrest); 

Nev. Rev. Stat. Ann. § 484.795 (Michie 1998) (officer who 
stops someone for a violation of certain traffic laws must 
bring the arrestee before a magistrate; for other traffic 
violations, officer has discretion to give a traffic citation or to 
take arrestee without unnecessary delay before the proper 
magistrate); 

N.H. Rev. Stat. Ann. § 614:7 (1986 & Supp. 1999) (authoriz- 
ing officer in fresh pursuit of a person who has violated any 
motor vehicle statute in the presence of the officer to arrest 
and hold in custody the person anywhere in this state); 

N.J. Stat. Ann. § 39:5-25 (West 1990 & Supp. 2000) (officer 
may arrest without warrant any person committing motor 
vehicle violation in officer’s presence, and may issue sum- 
mons instead of arresting); 

N.Y. Crim. Proc. Law § 140.10 (McKinney 1992) (warrantless 
arrest allowed when officer has probable cause to believe 
any offense has been committed in his presence and probable 
cause to believe person to be arrested committed the 

9c 

offense; in the case of petty offenses, arrest within the 
geographical area of such officer’s employment and must be 
made in the county in which such offense was committed or 
believed to have been committed or in an adjoining county); 
N.Y. Veh. & Traf. Law § 155 (McKinney 1996) (“For pur- 
poses of arrest without a warrant, pursuant to article one 
hundred forty of the criminal procedure law, a traffic 
infraction shall be deemed an offense.”); 

N.C. Gen. Stat. § 20-183(a) (1999) (officer has power to arrest 
on sight any person found violating motor vehicle laws); 

Pa. Stat. Ann. tit. 71, § 252 (West 1990); 75 Pa. Cons. Stat. 
Ann. § 6304 (West 1996) (state police officer may arrest any- 
one, and any other police officer may arrest nonresident, for 
any violation of vehicle code committed in presence); 

Tex. Transp. Code Ann. § 543.001 (West 1999) (any officer 
may arrest without warrant a person found committing a 
violation of the rules of the road subtitle of the vehicle code); 

Utah Code Ann. § 41-3-105(8)(a) (1998 & Supp. 2000) (officers 
have authority to make arrests upon view and without 
warrant for any violation committed in their presence of any 
of the provisions of the motor vehicles law); 

W. Va. Code § 15-5-18 (2000) (warrantless arrest allowed for 
misdemeanor or ordinance violation in presence of officer); 

Wyo. Stat. Ann. §§ 31-5-1204 to 31-5-1205 (Michie 1999) 
(officer may arrest upon reasonable and probable grounds to 
believe person has committed certain specified motor vehicle 
violations, including reckless driving).