search and seizure

Suburban soccer mom Gail Atwater is hardly the sort of person that would pose a grave threat to a police officer's safety. Nonetheless, police arrested, handcuffed, booked, detained in jail and prosecuted Ms. Atwater after a routine traffic stop for failing to buckle herself and her 3- and 5-year-old children into seatbelts. Ms. Atwater had the courage to complain, in civil court, that her constitutional right to be free from unreasonable search and seizure was violated during this encounter. The U.S. Supreme Court disagreed. More than that, the five-justice majority said the officer "was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessary."

By further abrogating the Fourth Amendment in its recent 5-4 decision (Atwater v. City of Lago Vista ) the Supreme Court added yet another weapon to law enforcement's arsenal in the War against Americans. Contrary to common sense and all historical notions of protection against unreasonable search and seizure, it is now okay for police officers to arrest persons without probable cause for a non-jailable offense such as that committed by Gail Atwater.

Ms. Atwater was driving 15 mph in a residential zone and had failed to buckle herself and her children into their seats when she was stopped by an overzealous police officer with whom she'd had a previous, apparently unpleasant, interaction. The first time, the officer believed she hadn't properly restrained her small child, when, in fact, she had. He was forced to let Ms. Atwater go free. In the second instance, she was indeed "guilty" of failing to belt everyone in, and was told in front of her children that she was "going to jail". Then she was handcuffed, put into the squad car (ironically, without a seatbelt) and taken to jail. All for not wearing a seatbelt, which otherwise carries a maximum $50 fine.

Based on existing Supreme Court precedent, if the officer believed he was in some danger, or if he had reasonable, articulable suspicion that a felony had been committed, or if he had even smelled the odor of marijuana smoke, then perhaps he would have been justified, under Texas law, to further investigate. But without the presence of any of these circumstances, arresting Ms. Atwater was simply unconstitutional.

In its opinion, the Court set a new standard for an officer to deprive someone of her liberty: whenever the officer feels so inclined. Taking this decision to its illogical conclusion, people can be arrested for jaywalking, taken into custody, photographed, strip-searched, have their personal items inventoried, be forced to post a bond, need to hire counsel, and ultimately appear for trial. Prior to Atwater, jaywalkers would have been issued a citation and given the free choice whether to pay or challenge the nominal-fee citation.

Similarly, anyone who drives a vehicle on the nation's highways will be subject to arrest and a warrantless search for contraband for non-jailable offenses. For example, we can easily envision police officers in New Jersey, where unconstitutional racial profiling has been a problem, stopping African-American or Hispanic drivers for minor traffic offenses (real or fabricated), and taking those persons into custody with the singular goal of searching the vehicle for drugs.

Under Atwater, this would be permissible. Prior to this decision, an officer generally needed reasonable suspicion to search, and probable cause to arrest. Not anymore.

The Atwater decision is a stark departure from the established exception to warrantless searches under the Court's 1968 Terry v. Ohio decision, but not too surprising given the additional decisions under the Rehnquist court which have continued to erode our Fourth Amendment protections. At the time, Terry was declared a rare exception to the requirement for probable cause. In Terry, the Court recognized that evaluating an officer's actions required a two-prong analysis: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place". The Atwater decision eliminated this second element of the analysis of a police officer's behavior in a custodial situation.

In 1977, in Pennsylvania v. Mimms, the Supreme Court, out of concern for the officer's safety, broadened the scope of the Terry rule by allowing an officer to order the driver of a lawfully-stopped car to exit the vehicle. For many years, with occasional abuses, police seemed generally able to follow the basic Terry and Mimms exceptions to protect themselves and further the needs of law enforcement. Americans seemed quietly content with this gradual erosion of their liberties.

Twenty years later, in the heat of the "War on [Some] Drugs", and ignoring their own, other Fourth Amendment precedents that required individualized suspicion of wrongdoing, the Supreme Court in Maryland v. Wilson, extended the Mimms rule to passengers in vehicles. Police may now order a passenger out of a stopped car, may arbitrarily decide which passengers to order out of the car, which ones to arrest, and which ones to search, without the need to show that a threat existed, or that a crime had been committed.

A year before the Wilson decision, in Whren v. United States, the Court decided that an officer's motivation for conducting a traffic stop is not relevant, if the officer had probable cause to stop the vehicle. Pretextual stops are now permissible. With last week's Atwater decision permitting arrest for non-jailable offenses, no constitutional limitations exist to regulate placing a driver or passenger in a lawfully-stopped vehicle under full custodial arrest for a fine-only infraction. Of course, custodial arrest triggers the police power to search every person, purse, pocket, pill box and the entire vehicle without additional justification.

Sandra Day O'Connor's blistering dissent criticized the Atwater majority opinion. She observed "... a full arrest... that justifies a traffic stop -- even though the offender cannot ultimately be imprisoned for her conduct -- defies any sense of proportionality and is in serious tension with the Fourth Amendment's proscription of unreasonable seizures." Justice O' Connor continued: "ecause a full custodial arrest is such a severe intrusion on an individual's liberty, its reasonableness hinges on ‘the degree to which it is needed for the promotion of legitimate governmental interests'. In light of the availability of citations... I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance." She added further: "[w]hile clarity is certainly a value worthy of consideration in our Fourth Amendment jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the Amendment's protections. What the Terry rule lacks in precision it makes up for in fidelity to the Fourth Amendment's command of reasonableness and sensitivity to the competing values protected by that Amendment".

The cataclysmic rise in drug arrests, specifically marijuana-related arrests since the mid-1990s (from 287,000 arrests in 1991 to 704,000 in 1999) belies any common sense notion that, prior to the Court's recent decision, police have a disincentive to progress from a traffic stop to a custodial arrest. With a citizen in the United States being arrested on a marijuana charge every 37 seconds, the likely increase in pretextual custodial arrests, along with the recently-revealed police practice of racial profiling, can only further degrade public support for the police and strain already thin local law enforcement budgets.

Justice O'Connor's concluding remarks for the four-member dissent serves as a stark, sober warning: "uch unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of ‘an epidemic of unnecessary minor-offense arrests'." Although these statistics may not have been available to the Court in this instance, we believe in Justice O'Connor's latent prediction of a firestorm of minor-offense arrests. "Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After [this decision], the arsenal available to any officer extends to a full arrest, and the searches permissible concomitant to that arrest " [emphasis added].

At this juncture, states should enact legislation requiring further factual justification to expand the scope of a search or seizure beyond that of Terry v. Ohio, to limit the powerful incentive of a full custodial arrest as a tool for further police investigation.