David Souter

“ At oral argument, Atwater’s counsel said that “it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving.” Tr. of Oral Arg. 16. But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the “offense would ... continue” under Atwater’s rule? And why, as a constitutional matter, should we assume that only reckless driving will “pose a danger to others on the road” while speeding will not? ”

“ She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation. In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case. ”

“ Statutes and municipal charters have quite generally authorized an officer to arrest for any misdemeanor whether a breach of the peace or not, without a warrant, if committed in the officer’s presence. ”

“ Beyond that, whatever help the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes that arresting would serve an important societal interest. An officer not quite sure that the drugs weighed enough to warrant jail time or not quite certain about a suspect’s risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial. ”

“ On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not involving any breach of the peace. One 16th-century statute, for instance, authorized peace officers to arrest persons playing “unlawful game [s] ” like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons “haunting” the “houses, places and alleys where such games shall be suspected to be holden, exercised, used or occupied.” ”

“ It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, see Berkemer v. McCarty, 468 U.S. 420, 431, n. 13 (1984) (“ [O] fficers in the field frequently ‘have neither the time nor the competence to determine’ the severity of the offense for which they are considering arresting a person”) , but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? ”

“ If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.
IV Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. ”

“ III While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history. ”

“ The point is that the statutes riddle Atwater’s supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment’s Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence. ”

“ The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one. [23] We are sure that there are others, [24] but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. ”

“ Not long after the framing of the Fourth Amendment, East characterized peace officers’ common-law arrest power in much the same way: “A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray ... ”

“ One of Atwater’s amici described a handful in its brief. Brief for American Civil Liberties Union et al. as Amici Curiae 7—8 (reporting arrests for littering, riding a bicycle without a bell or gong, operating a business without a license, and “walking as to create a hazard”) .
↑ . The dissent insists that a minor traffic infraction “may serve as an excuse” for harassment, and that fine-only misdemeanor prohibitions “may be enforced” in an arbitrary manner. ”

“ On the understanding that citation is the “usual procedure” in a traffic stop situation, Judge Reynaldo Garza thought Atwater’s arrest unreasonable, since there was no particular reason for taking her into custody. 195 F.3d, at 246—247. Judge Weiner likewise believed that “even with probable cause, [an] officer must have a plausible, articulable reason” for making a custodial arrest. Id., at 251. Judge Dennis understood the Fourth Amendment to have incorporated an earlier, common-law prohibition on warrantless arrests for misdemeanors that do not amount to or involve a “breach of the peace.” ”

“ And according to Blackstone, these watchmen had virtually limitless warrantless nighttime arrest power: “Watchmen, either those appointed by the statute of Winchester ... or such as are merely assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning.” 4 Blackstone 289; see also 2 Hale, History of the Pleas of the Crown, at 97 (describing broad arrest powers of watchmen even over and above those conferred by the Statute of Winchester) . ”

“ The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional attention, and there is cause to think the answer is no. So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review of probable cause within 48 hours, County of Riverside v. ”

“ J. Beale, Criminal Pleading and Practice §21, p. 20, and n. 7 (1899) (“By statute the power of peace officers to arrest without a warrant is often extended to all misdemeanors committed in their presence.” “Such a statute is constitutional”) ; 1 Bishop, supra, §183, at 103 (“ [T] he power of arrest extends, possibly, to any indictable wrong in [an officer’s] presence... . And statutes and ordinances widely permit these arrests for violations of municipal by-laws”) ”

“ We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers’ authority to arrest without warrant for minor criminal offenses. 530 U.S. 1260 (2000) . We now affirm.
II The Fourth Amendment safeguards “ [t] he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” ”

“ Hale’s view, posthumously published in 1736, reflected an understanding dating back at least 60 years before the appearance of his Pleas yet sufficiently authoritative to sustain a momentum extending well beyond the framing era in this country. See The Compleat Parish-Officer 11 (1744) (“ [T] he Constable ... may for Breach of the Peace, and some Misdemeanors less than Felony, imprison a Man”) ”

“ Root, 72 Mass. 435 (1856) (rebuffing constitutional challenge to statute authorizing officers “without a warrant [to] arrest any person or persons whom they may find in the act of illegally selling, transporting, or distributing intoxicating liquors”) ; Main v. McCarty, 15 Ill. 441 (1854) (concluding that a law expressly authorizing arrests for city-ordinance violations was “not repugnant to the constitution or the general provisions of law”) ”

“ Id., at 157 (quoting 9 Halsbury, Laws of England §612, p. 299 (1909) ) .
But the isolated quotation tends to mislead. In Carroll itself we spoke of the common-law rule as only “sometimes expressed” that way, 267 U.S., at 157, and, indeed, in the very same paragraph, we conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the “usual rule” at common law was that “a police officer [could] arrest without warrant ... one guilty of a misdemeanor if committed in his presence.” ”

“ Because here the dissent “claim [s] that [a] practice [] accepted when the Fourth Amendment was adopted [is] now constitutionally impermissible,” the dissent bears the “heavy burden” of justifying a departure from the historical understanding. Ibid.
↑ . Although it is unclear from Atwater’s briefs whether the rule she proposes would bar custodial arrests for fine-only offenses even when made pursuant to a warrant, at oral argument Atwater’s counsel “concede [d] that if a warrant were obtained, this arrest ... would ... be reasonable.” Tr. ”

“ Earliest Printed Laws of New York, 1665—1693, p. 133 (J. Cushing, ed., 1978) (Duke of York’s Laws, 1665—1675) (“such as are overtaken with Drink, Swearing, Sabbath breaking, Vagrant persons or night walkers”) ; 3 Laws of the Commonwealth of Pennsylvania 177—183 (1810) (1794 Act) (persons “profanely curs [ing] ,” drinking excessively, “cock-fighting,” or “play [ing] at cards, dice, billiards, bowls, shuffle-boards, or any game of hazard or address, for money”) . ”

“ Watson, 423 U.S., at 429 (Powell, J., concurring) ; see also Amar, Fourth Amendment First Principles, 107 Harv. L. Rev., at 764, and n. 14.
↑ . We need not, and thus do not, speculate whether the Fourth Amendment entails an “in the presence” requirement for purposes of misdemeanor arrests. Cf. Welsh v. Wisconsin, 466 U.S. 740, 756 (1984) (White, J., dissenting) (“ [T] he requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not grounded in the Fourth Amendment”) . ”

“ See 2 Hawkins, ch. 13, §1, at 129 (“ [W] herever any [warrantless] arrest may be justified by a private person, in every such case à fortiori it may be justified by any [peace] officer”) .
↑ . King v. Wilkes, 2 Wils. K. B. 151, 95 Eng. Rep. 737 (1763) , and Money v. Leach, 3 Burr. 1742, 97 Eng. Rep. 1075 (K. B. 1765) , two of the decisions arising out of the controversy that generated Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) , the “paradigm search and seizure case for Americans” of the founding generation, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. ”