Minor-offense arrests get green light in seat belt case.

Three years ago, in Knowles v. Iowa,(1) the Supreme Court held that police could not search a car "incident to arrest" unless the driver was actually taken into custody. Thus, the noncustodial traffic stop of a driver for speeding could not give rise to a search of the car.

Knowles was generally praised as enhancing civil liberties. However, in this column two years ago, I pointed out that it might encourage police to arrest traffic violators whom they might otherwise have let go with a ticket or warning. I suggested that the Court abandon the concept of vehicle searches incident to arrest and limit searches to situations where police have probable cause, eliminating the incentive to arrest in order to search. "Otherwise the Court will find itself sucked into the morass of trying to determine which offenses are appropriately `arrestable.'..."(2)

In Atwater v. City of Lago Vista,(3) a 5-4 majority of the Court, led by Justice David Souter, dipped a toe into this morass and decided the suction was too dangerous. Accordingly, the justices simply ceded to the states the power to decide which offenses could give rise to a custodial arrest.

Moreover, they did this in a case that seemed to demand a contrary conclusion. In Atwater, the "criminal" was a so-called soccer mom, with two kids in tow. She was not posing a danger to others by speeding, but was traveling with unfastened seat belts. The officer, apparently a disciple of the Barney Fife approach to crime control, not only arrested her but also proposed to lock up the children as well, until a friend came along to take charge of them.

Atwater was handcuffed, taken to jail, and confined until she could make bail. She later pleaded no contest and paid a $50 fine. The Supreme Court case arose from her civil suit against the city.

Even though the Court upheld Atwater's arrest, the majority admitted that "the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment."(4)

In one of the Iowa cases overruled by Knowles, a dissenting judge had expressed fear that "today's opinion will ... sacrifice the personal privacy of `soccer moms' driving a little too fast to the ball field [and] senior citizens motoring along without a taillight."(5) It now appears that Knowles merely delayed, rather than prevented, such a loss of privacy.

Turnaround by Souter

The Atwater decision has been widely condemned(6) and was subject to a strong dissent by Justice Sandra Day O'Connor. Perhaps the most interesting question about this questionable decision is why Souter--a member of the Court's "liberal wing," such as it is--rendered a ruling so out of keeping with his previous record on criminal procedure. To put it another way, why would Souter and Justice Anthony Kennedy, who had agreed earlier in this term that a narcotics roadblock was an insupportable breach of liberty,(7) turn around and support the handcuffing and incarceration of a woman for driving with unfastened seat belts?

In the first part of the opinion, Souter discusses at some length Atwater's claim that the concept of "arrest," as understood by the framers of the Constitution, was limited to felonies and misdemeanors "involving or tending toward violence."(8) Not surprisingly, the Court found "disagreement, not unanimity" in the historical documents related to this claim.(9) Indeed, even if the common law doctrine on what to do with "common scolds" or "peeping Toms" was clear, it is probably reasonable that legislatures and courts should be free to craft modern rules governing automotive offenses.

In any case, Atwater proposed a broader rule than what she perceived the common law to require, giving police authority to arrest unless "conviction could not ultimately carry any jail time and ... the government [could show] no compelling need for immediate detention."(10) O'Connor refined this test in her dissent. Quoting Terry v. Ohio, she proposed that, in a case of a "fine-only" offense, the officer should issue a citation unless he or she is "`able to point to specific and articulable facts which ... reasonably warrant [the additional] intrusion' of a full custodial arrest."(11)

The majority's response to this approach was twofold. First, the justices distinguished Terry, a case that allows police to "stop and frisk" a person on less than probable cause, because the decision "supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant ... or probable cause ... provides; but at least in the absence of extraordinary circumstances, there is no comparable cause for finicking when police act with such justification."(12)

In other words, once the police have legitimately arrested you, it would be "finicky" of the Court to examine how they then treat you (except when it comes to interrogation, about which the Court has been very finicky over the years(13)).

More substantively, the majority claimed that the supposed "clear rule" advanced by Atwater "is not ultimately so simple.... [C]omplications arise the moment we begin to think about [it]."(14) For example, "an officer on the street might not be able to tell" if an offense is "jailable" or not. In Souter's view, we can neither expect the police to know "frequently complex penalty schemes" nor such facts as whether "the suspect [is] a repeat offender" or whether "the weight of the marijuana [is] a gram above or a gram below the fine-only line."(15)

This justification--"We can't expect the police to make these fine judgments"--is the standard reason that the Court gives whenever it wants to vest police with discretion to, for example, search all the containers in automobiles(16) or open fields(17) without warrants, or search automobiles incident to arrest.(18)

But, in fact, the Court often requires the police to make difficult judgments. Before deciding whether to incarcerate Atwater, the officer had to determine whether there was a reasonable suspicion of a violation to justify stopping her car as well as probable cause to arrest her. These issues, while easy in this case, can be difficult to resolve.

Likewise, police are required to give Miranda warnings in a case of "custodial interrogation." Is a person "in custody" while still inside his or her home? Is it "interrogation" for police to talk among themselves in a way that encourages an arrestee to speak up? These sorts of difficult decisions face police anytime the Court declares a rule for them to follow, and the Court must frequently come back and resolve the new issues created by its rules.(19)

"Yes," Souter might say, "that is why we should declare rules only when it's really necessary."

It wasn't really necessary in Atwater, in the majority's view, because "there simply is no evidence of widespread abuse of minor-offense arrest authority,"(20) despite the fact that police in most states have long had this authority on paper.(21)

This issue is really the crux of this case. Is Atwater's experience simply an isolated example of an overzealous officer abusing a discretion that police usually exercise responsibly? Or will this decision lead to "open season" on motorists or other minor violators whom the police wish either to harass or to arrest in order to lock them up and search them and their cars?

So how could Souter and Kennedy oppose a roadblock but uphold the arrest in this case? The answer seems to be that roadblocks affect many people, and arrests like Atwater's don't.

Potential for abuse

I am not reassured by Souter's faith that police will not abuse their minor-offense arrest authority, now that they know about it. The reason Atwater could not come up with many examples of police officers' abuse of this power is probably that they were never sure how far they could go, so they rarely exercised it. As O'Connor pointed out, on the "rare occasions that members of this Court have contemplated such an arrest, they have indicated disapproval."(22)

For example, in United States v. Robinson, the Court held that in making a custodial arrest, even for a traffic offense, the police may conduct a full-body search of the arrestee.(23) But the offense in Robinson--driving with a revoked license--justifiably required an arrest,(24) and Justice Lewis Powell Jr. observed in his concurring opinion that the validity of a custodial arrest for a minor traffic offense is not "self-evident."(25)

Before Atwater, I would have counseled the police that arrests for nonjailable offenses were not advisable absent good cause. Now I would tell them, "Go for it!"

The Court's decisions in this case and in Whren v. United States(26) in 1996 have dealt the police a strong hand in dealing with anyone they suspect of a crime. Whren held that, as long as police have probable cause to arrest for any offense, the courts will not question their motive. (In other words, it doesn't matter if the arrest is a pretext for investigation of another crime.)

Now, if police are following a suspect whom they lack probable cause to arrest, and he or she litters, jaywalks, parks in a "no parking" zone, or doesn't fasten a seat belt, they may, as far as the Constitution is concerned, arrest and hold the suspect for up to 48 hours. They may also search his or her person and anything the suspect might be carrying, such as a briefcase or purse. If the suspect is driving, they may search the car's passenger compartment on the spot, then impound the car and search it fully. This seems a high price to pay for dropping a gum wrapper on the street.

Will police do this with every minor miscreant they encounter? Certainly not. As the majority points out, arrest is a waste of resources, not to mention political capital, in most of these cases.(27) But will they use any minor violation as an excuse to arrest and search people who are suspected of more serious crimes or who are "undesirables" in the view of the police? Count on it.

There is one bright spot for civil libertarians in all this. Because Atwater was such a sympathetic plaintiff, and because the police were so heavy-handed in their encounter with her, legislatures may step in and limit police authority in the way the dissenters suggested. In fact, new legislation has already been proposed in Texas,(28) and as the appendix to the majority opinion shows, several states currently have similar limitations.

Notes

(1.) 525 U.S. 113 (1998).

(2.) Craig M. Bradley, Protection for Motorists--with a Loophole, TRIAL, Feb. 1999, at 85, 86.

(3.) 121 S. Ct. 1536 (2001).

(4.) Id. at 1553.

(5.) State v. Doran, 563 N.W.2d 620, 624 (Iowa 1997) (Neuman, J., dissenting).

(6.) See, e.g., Akhil Reed Amar, The Law: An Unreasonable View of the 4th Amendment, L.A. TIMES, Apr. 29, 2001, at M1.

(7.) City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

(8.) Atwater, 121 S. Ct. 1536, 1543.

(9.) Id. at 1546.

(10.) Id. at 1553.

(11.) Id. at 1563-64 (O'Connor, J., dissenting) (quoting Terry v. Ohio, 329 U.S. 1, 21 (1968)).

(12.) Id. at 1554 n.16.

(13.) See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).

(14.) Atwater, 121 S. Ct. 1536, 1554.

(15.) Id.

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

(17.) Oliver v. United States, 466 U.S. 170 (1984).

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

(19.) See Craig M. Bradley, The Uncertainty Principle in the Supreme Court, 1986 DUKE L.J. 1 (discussing the tendency of Supreme Court decisions to create more issues than they resolve).

(20.) Atwater, 121 S. Ct. 1536, 1557 n.25.

(21.) The Court's appendix shows that most states permit arrest for a misdemeanor committed "in the presence of the officer."Id, at 1558-60.

(22.) Id. at 1561 (O'Connor, J., dissenting).

(23.) 414 U.S. 218 (1973).

(24.) Id. at 221 n.2.

(25.) Id. at 238 n.2 (Powell, J., concurring).

(26.) 517 U.S. 806 (1996).

(27.) Atwater, 121 S. Ct. 1536, 1556-57.

(28.) See Michele Deitch, Ruling in Seat-Belt Case: Misperception of Jail Time, HOUS. CHRON., May 6, 2001, at 25.

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].