[ Souter ]
[ OConnor ]
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
[April 24, 2001]
Justice Souter delivered the opinion of the Court.
The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not.
In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, Tex. Tran. Code Ann. §545.413(a) (1999), and the driver must secure any small child riding in front, §545.413(b). Violation of either provision is a misdemeanor punishable by a fine not less than $25 or more than $50. §545.413(d). Texas law expressly authorizes [a]ny peace officer [to] arrest without warrant a person found committing a violation of these seatbelt laws, §543.001, although it permits police to issue citations in lieu of arrest, §§543.003543.005.
In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwaters complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and yell[ed] something to the effect of [w]eve met before and [y]oure going to jail. App. 20.1 He then called for backup and asked to see Atwaters drivers license and insurance documentation, which state law required her to carry. Tex. Tran. Code Ann. §§521.025, 601.053 (1999). When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had heard that story two-hundred times. App. 21.
Atwater asked to take her frightened, upset, and crying children to a friends house nearby, but Turek told her, [y]oure not going anywhere. Ibid. As it turned out, Atwaters friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwaters mug shot and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.
Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were dismissed.
Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court under 42 U.S.C. § 1983 against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwaters Fourth Amendment right to be free from unreasonable seizure, App. 23, and sought compensatory and punitive damages.
The City removed the suit to the United States District Court for the Western District of Texas. Given Atwaters admission that she had violated the law and the absence of any allegation that she was harmed or detained in any way inconsistent with the law, the District Court ruled the Fourth Amendment claim meritless and granted the Citys summary judgment motion. No. A97 CA 679 SS (WD Tex., Feb. 13, 1999), App. to Pet. for Cert. 50a63a. A panel of the United States Court of Appeals for the Fifth Circuit reversed. 165 F.3d 380 (1999). It concluded that an arrest for a first-time seat belt offense was an unreasonable seizure within the meaning of the Fourth Amendment, id., at 387, and held that Turek was not entitled to qualified immunity, id., at 389.
Sitting en banc, the Court of Appeals vacated the panels decision and affirmed the District Courts summary judgment for the City. 195 F.3d 242 (CA5 1999). Relying on Whren v. United States, 517 U.S. 806 (1996), the en banc court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, where an arrest is based on probable cause then with rare exceptions
the result of that balancing is not in doubt.
Three judges issued dissenting opinions. On the understanding that citation is the usual procedure in a traffic stop situation, Judge Reynaldo Garza thought Atwaters arrest unreasonable, since there was no particular reason for taking her into custody. 195 F.3d, at 246247. 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. Ibid.
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.
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. In reading the Amendment, we are guided by the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing, Wilson v. Arkansas, 514 U.S. 927, 931 (1995), since [a]n examination of the common-law understanding of an officers authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable, Payton v. New York, 445 U.S. 573, 591 (1980) (footnote omitted). Thus, the first step here is to assess Atwaters claim that peace officers authority to make warrantless arrests for misdemeanors was restricted at common law (whether common law is understood strictly as law judicially derived or, instead, as the whole body of law extant at the time of the framing). Atwaters specific contention is that founding-era common-law rules forbade peace officers to make warrantless misdemeanor arrests except in cases of breach of the peace, a category she claims was then understood narrowly as covering only those nonfelony offenses involving or tending toward violence. Brief for Petitioners 13. Although her historical argument is by no means insubstantial, it ultimately fails.
We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term breach of the peace,2 the founding-era common-law rules were not nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers warrantless misdemeanor arrest power. Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace.
Atwaters historical argument begins with our quotation from Halsbury in Carroll v. United States, 267 U.S. 132 (1925), that
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. Id., at 156157. Thus, what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform. Rather, [a]t common law there is a difference of opinion among the authorities as to whether this right to arrest [without a warrant] extends to all misdemeanors. American Law Institute, Code of Criminal Procedure, Commentary to §21, p. 231 (1930).
On one side of the divide there are certainly eminent authorities supporting Atwaters position. In addition to Lord Halsbury, quoted in Carroll, James Fitzjames Stephen and Glanville Williams both seemed to indicate that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See 1 J. Stephen, A History of the Criminal Law of England 193 (1883) (The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578 (Apart from arrest for felony , the only power of arrest at common law is in respect of breach of the peace). See also Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q. B. 1710) ([A] constable cannot arrest, but when he sees an actual breach of the peace; and if the affray be over, he cannot arrest).
Sir William Blackstone and Sir Edward East might also be counted on Atwaters side, although they spoke only to the sufficiency of breach of the peace as a condition to warrantless misdemeanor arrest, not to its necessity. Blackstone recognized that at common law [t]he constable hath great original and inherent authority with regard to arrests, but with respect to nonfelony offenses said only that [h]e may, without warrant, arrest any one for breach of the peace, and carry him before a justice of the peace. 4 Blackstone 289. 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 . 1 E. East, Pleas of the Crown §71, p. 303 (1803).
The great commentators were not unanimous, however, and there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. Sir Matthew Hale, Chief Justice of Kings Bench from 1671 to 1676,3 wrote in his History of the Pleas of the Crown that, by his original and inherent power, a constable could arrest without a warrant for breach of the peace and some misdemeanors, less than felony. 2 M. Hale, The History of the Pleas of the Crown 88 (1736). Hales 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); R. Burn, The Justice of the Peace 271 (1837) (A constable may at common law, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender without any warrant) (italics in original); 1 J. Chitty, A Practical Treatise on the Criminal Law 20 (5th ed. 1847) ([A constable] may for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender virtiute officii, without any warrant); 1 W. Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (officer may arrest any person who in his presence commits a misdemeanor or breach of the peace).4
As will be seen later, the view of warrantless arrest authority as extending to at least some misdemeanors beyond breaches of the peace was undoubtedly informed by statutory provisions authorizing such arrests, but it reflected common law in the strict, judge-made sense as well, for such was the holding of at least one case reported before Hale had even become a judge but which, like Hales own commentary, continued to be cited well after the ratification of the Fourth Amendment. In Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805 (K.B. 1631), the Court of Kings Bench held that even a private person (and thus a fortiori a peace officer5) needed no warrant to arrest a common cheater whom he discovered cozen[ing] with false dice. The court expressly rejected the contention that warrantless arrests were improper unless in felony, and said instead that there was good cause [for] staying the gambler and, more broadly, that it is pro bono publico to stay such offenders. Id., at 805806. In the edition nearest to the date of the Constitutions framing, Sergeant William Hawkinss widely-read Treatise of the Pleas of the Crown generalized from Holyday that from the reason of this case it seems to follow, That the [warrantless] arrest of any other offenders for offenses in like manner scandalous and prejudicial to the public, may be justified. 2 Hawkins, ch. 12, §20, p. 122. A number of other common-law commentaries shared Hawkinss broad reading of Holyday. See The Law of Arrests 205 (2d ed. 1753) (In light of Holyday, an Arrest of an Offender for any Crime prejudicial to the Publick, seems to be justifiable); 1 T. Cunningham, A New and Complete Law Dictionary (1771) (definition of arrest) (same); 1 G. Jacob, The Law Dictionary 129 (1st Am. ed., 1811) (same). See generally C. Greaves, Law of Arrest Without a Warrant, in The Criminal Law Consolidation Acts, p. lxiii (1870) ([Holyday] is rested upon the broad ground that it is pro bono publico to stay such offenders, which is equally applicable to every case of misdemeanor ).6
We thus find disagreement, not unanimity, among both the common-law jurists and the text-writers who sought to pull the cases together and summarize accepted practice. Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwaters is the correct, or even necessarily the better, reading of the common-law history.
A second, and equally serious, problem for Atwaters historical argument is posed by the divers Statutes, M. Dalton, Country Justice ch. 170, §4, p. 582 (1727), enacted by Parliament well before this Republics founding that authorized warrantless misdemeanor arrests without reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendments Framers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The so-called nightwalker statutes are perhaps the most notable examples. From the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827,7 night watchmen were authorized and charged as in Times past to watch the Town continually all Night, from the Sun-setting unto the Sun-rising and were directed that if any Stranger do pass by them, he shall be arrested until Morning . 13 Edw. I, ch. 4, §§56, 1 Statutes at Large 232233; see also 5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming and extending the powers of watchmen). Hawkins emphasized that the Statute of Winchester was made not in derogation but rather in affirmance of the common law, for every private person may by the common law arrest any suspicious night-walker, and detain him till he give good account of himself . 2 Hawkins, ch. 13, §6, p. 130. 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).8 The Statute of Winchester, moreover, empowered peace officers not only to deal with nightwalkers and other nighttime offenders, but periodically to make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the Towns. On that score, the Statute provided that if they do find any that have lodged or received any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Right therein, 13 Edw. I, ch. 4, §§34, 1 Statutes at Large 232233, which Hawkins understood surely to mean that officers could lawfully arrest and detain any such stranger[s], 2 Hawkins, ch. 13, §12, at 134.
Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed. 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. 33 Hen. VIII, ch. 9, §§1116, 5 Statutes at Large 8485 (1541). A 17th-century act empowered any person whatsoever to seize and detain any hawker, pedlar, petty chapman, or other trading person found selling without a license. 8 & 9 Wm. III, ch. 25, §§3, 8, 10 Statutes at Large 8183 (1697). And 18th-century statutes authorized the warrantless arrest of rogues, vagabonds, beggars, and other idle and disorderly persons (defined broadly to include jugglers, palm-readers, and unlicensed play-actors), 17 Geo. II, ch. 5, §§12, 5, 18 Statutes at Large 144, 145147 (1744); horrid persons who profanely swear or curse, 19 Geo. II, ch. 21, §3, 18 Statutes at Large 445 (1746); individuals obstructing publick streets, lanes or open passages with pipes, butts, barrels, casks or other vessels or an empty cart, car, dray or other carriage, 30 Geo. II, ch. 22, §§5, 13, 22 Statutes at Large 107108, 111 (1757); and, most significantly of all given the circumstances of the case before us, negligent carriage drivers, 27 Geo. II, ch. 16, §7, 21 Statutes at Large 188 (1754). See generally S. Blackerby, The Justice of Peace: His Companion, or a Summary of all the Acts of Parliament (1723) (cataloguing statutes); S. Welch, An Essay on the Office of Constable 1922 (1758) (describing same).
The significance of these early English statutes lies not in proving that any common-law rule barring warrantless misdemeanor arrests that might have existed would have been subject to statutory override; the sovereign Parliament could of course have wiped away any judge-made rule. The point is that the statutes riddle Atwaters supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendments Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence.
An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwaters position.
To begin with, Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers warrantless misdemeanor arrest authority to instances of actual breach of the peace, and our own review of the recent and respected compilations of framing-era documentary history has likewise failed to reveal any such design. See The Complete Bill of Rights 223263 (N. Cogan ed. 1997) (collecting original sources); 5 The Founders Constitution 219244 (P. Kurland & R. Lerner eds. 1987) (same). Nor have we found in any of the modern historical accounts of the Fourth Amendments adoption any substantial indication that the Framers intended such a restriction. See, e.g., L. Levy, Origins of the Bill of Rights 150179 (1999); T. Taylor, Two Studies in Constitutional Interpretation 1993 (1969); J. Landynski, Search and Seizure and the Supreme Court 1948 (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 79105 (1937); Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994); Bradley, Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817 (1989). Indeed, to the extent these modern histories address the issue, their conclusions are to the contrary. See Landynski, supra, at 45 (Fourth Amendment arrest rules are based on common-law practice, which dispensed with a warrant requirement for misdemeanors committed in the presence of the arresting officer); Davies, supra, at 551 ([T]he Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that unreasonable might be read as a standard for warrantless intrusions).
The evidence of actual practice also counsels against Atwaters position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, supra, at 1114, regularly authorized local peace officers to make warrantless misdemeanor arrests without conditioning statutory authority on breach of the peace. See, e.g., First Laws of the State of Connecticut 214215 (Cushing ed. 1982) (1784 compilation; exact date of Act unknown) (authorizing warrantless arrests of all Persons unnecessarily travelling on the Sabbath or Lords Day); id., at 23 (such as are guilty of Drunkenness, profane Swearing, Sabbath-breaking, also vagrant Persons [and] unseasonable Night-walkers); Digest of the Laws of the State of Georgia 17551800, p. 411 (H. Marbury & W. Crawford eds. 1802) (1762 Act) (breakers of the Sabbath laws); id., at 252 (1764 Act) (persons gaming in any licensed public house, or other house selling liquors); Colonial Laws of Massachusetts 139 (1889) (1646 Act) (such as are overtaken with drink, swearing, Sabbath breaking, Lying, vagrant persons, [and] night-walkers); Laws of the State of New Hampshire 549 (1800) (1799 Act) (persons travelling unnecessarily on Sunday); Digest of the Laws of New Jersey 17091838, pp. 585586 (L. Elmer ed. 1838) (1799 Act) (vagrants or vagabonds, common drunkards, common night-walkers, and common prostitutes, as well as fortune-tellers and other practitioners of crafty science); Laws of the State of New York, 17771784, pp. 358359 (1886) (1781 Act) (hawker[s] and pedlar[s]); Earliest Printed Laws of New York, 16651693, p. 133 (J. Cushing, ed., 1978) (Duke of Yorks Laws, 16651675) (such as are overtaken with Drink, Swearing, Sabbath breaking, Vagrant persons or night walkers); 3 Laws of the Commonwealth of Pennsylvania 177183 (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).9
What we have here, then, is just the opposite of what we had in Wilson v. Arkansas. There, we emphasized that during the founding era a number of States had enacted statutes specifically embracing the common-law knock-and-announce rule, 514 U.S., at 933; here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwaters claims about the Fourth Amendments object. Of course, the Fourth Amendment did not originally apply to the States, see Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), but that does not make state practice irrelevant in unearthing the Amendments original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, see, e.g., N. H. Const. of 1784, pt. I, Art. XIX; Pa. Const. of 1776 (Declaration of Rights), Art. X, and the fact that many of the original States with such constitutional limitations continued to grant their own peace officers broad warrantless misdemeanor arrest authority undermines Atwaters contention that the founding generation meant to bar federal law enforcement officers from exercising the same authority. Given the early state practice, it is likewise troublesome for Atwaters view that just one year after the ratification of the Fourth Amendment, Congress vested federal marshals with the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states. Act of May 2, 1792, ch. 28, §9, 1 Stat. 265. Thus, as we have said before in only slightly different circumstances, the Second Congress apparently saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to make warrantless arrests. United States v. Watson, 423 U.S. 411, 420 (1976).10
The record thus supports Justice Powells observation that [t]here is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. Id., at 429 (concurring opinion). We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.
Nor does Atwaters argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become woven into the fabric of American law. Wilson, supra, at 933; see also Payton v. New York, 445 U.S., at 590 (emphasizing a clear consensus among the States adhering to [a] well-settled common-law rule). The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace.
First, there is no support for Atwaters position in this Courts cases (apart from the isolated sentence in Carroll, already explained). Although the Court has not had much to say about warrantless misdemeanor arrest authority, what little we have said tends to cut against Atwaters argument. In discussing this authority, we have focused on the circumstance that an offense was committed in an officers presence, to the omission of any reference to a breach-of-the-peace limitation.11 See, e.g., United States v. Watson, supra, at 418 (The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence
); Carroll, 267 U.S., at 156157 (The usual rule is that a police officer may arrest without a warrant one
guilty of a misdemeanor if committed in his presence); Bad Elk v. United States, 177 U.S. 529, 534, 536, n. 1 (1900) (noting common-law pedigree of state statute permitting warrantless arrest [f]or a public offense committed or attempted in [officers] presence); Kurtz v. Moffitt, 115 U.S. 487, 499 (1885) (common-law presence requirement); cf. also Welsh v. Wisconsin, 466 U.S. 740, 756 (1984) (White, J., dissenting) (
Second, and again in contrast with Wilson, it is not the case here that [e]arly American courts embraced an accepted common-law rule with anything approaching unanimity. Wilson v. Arkansas, 514 U.S., at 933. To be sure, Atwater has cited several 19th-century decisions that, at least at first glance, might seem to support her contention that warrantless misdemeanor arrest was unlawful when not [for] a breach of the peace. Brief for Petitioners 17 (citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Commonwealth v. Carey, 66 Mass. 246, 250 (1853), and Robison v. Miner, 68 Mich. 549, 556559, 37 N. W. 21, 25 (1888)). But none is ultimately availing. Pow is fundamentally a presence case; it stands only for the proposition, not at issue here, see n. 11, supra, that a nonfelony arrest should be made while the offense is in [the officers] view and still continuing and not subsequently upon vague information communicated to him. 3 Ind., at 478. The language Atwater attributes to Carey ([E]ven if he were a constable, he had no power to arrest for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offense) is taken from the reporters summary of one of the partys arguments, not from the opinion of the court. While the court in Carey (through Chief Justice Shaw) said that the old established rule of the common law was that a constable or other peace officer could not arrest one without a warrant if such crime were not an offence amounting in law to felony, it said just as clearly that the common-law rule could be altered by the legislature (notwithstanding Massachusettss own Fourth Amendment equivalent in its state constitution). 66 Mass., at 252. Miner, the third and final case upon which Atwater relies, was expressly overruled just six years after it was decided. In Burroughs v. Eastman, 101 Mich. 419 (1894), the Supreme Court of Michigan held that the language from Miner upon which the plaintiff there (and presumably Atwater here) relied should not be followed, and then went on to offer the following: [T]he question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been called to no case, nor have we in our research found one, in which the contrary doctrine has been asserted. 101 Mich., at 425 (collecting cases from, e.g., Illinois, Indiana, Massachusetts, Minnesota, Missouri, New Hampshire, New York, Ohio, and Texas).
The reports may well contain early American cases more favorable to Atwaters position than the ones she has herself invoked. But more to the point, we think, are the numerous early- and mid-19th-century decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. See, e.g., Mayo v. Wilson, 1 N. H. 53 (1817) (upholding statute authorizing warrantless arrests of those unnecessarily traveling on Sunday against challenge based on state due process and search-and-seizure provisions); Holcomb v. Cornish, 8 Conn. 375 (1831) (upholding statute permitting warrantless arrests for drunkenness, profane swearing, cursing or sabbath-breaking against argument that [t]he power of a justice of the peace to arrest and detain a citizen without complaint or warrant against him, is surely not given by the common law); Jones v. 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); White v. Kent, 11 Ohio St. 550 (1860) (upholding municipal ordinance permitting warrantless arrest of any person found violating any city ordinance or state law); Davis v. American Soc. for Prevention of Cruelty to Animals, 75 N. Y. 362 (1878) (upholding statute permitting warrantless arrest for misdemeanor violation of cruelty-to-animals prohibition). See generally Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 550, and n. 54 (1924) (collecting cases and observing that [t]he 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); id., at 706, nn. 570, 571 (collecting cases); 1 J. Bishop, New Criminal Procedure §§181, 183, pp. 101, n. 2, 103, n. 5 (4th ed. 1895) (same); W. Clark, Handbook of Criminal Procedure §12, p. 50, n. 8 (2d ed. 1918) (same).
Finally, both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes against constitutional attack are buttressed by legal commentary that, for more than a century now, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. See, e.g., E. Fisher, Laws of Arrest §59, p. 130 (1967) ([I]t is generally recognized today that the common law authority to arrest without a warrant in misdemeanor cases may be enlarged by statute, and this has been done in many of the states); Wilgus, supra, at 705706 (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 officers presence. Such statutes are valid); Clark, supra, §12, at 50 (In most, if not all, the states there are statutes and city ordinances, which are clearly valid, authorizing officers to arrest for certain misdemeanors without a warrant, when committed in their presence); 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 officers] presence . And statutes and ordinances widely permit these arrests for violations of municipal by-laws); J. Bassett, Criminal Pleading and Practice §89, p. 104 (2d ed. 1885) ([A]s to the lesser misdemeanors, except breaches of the peace, the power extends only so far as some statute gives it). But cf. H. Vorhees, Law of Arrest §131, pp. 7879 (1904) (acknowledging that by authority of statute, city charter, or ordinance, [an officer] may arrest without a warrant, one who commits a misdemeanor other than a breach of the peace, but suggesting that courts look with disfavor on such legislative enactments as interfering with the constitutional liberties of the subject).
Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace,12 as do a host of congressional enactments.13 The American Law Institute has long endorsed the validity of such legislation, see American Law Institute, Code of Criminal Procedure §21(a), p. 28 (1930); American Law Institute, Model Code of Pre-Arraignment Procedure §120.1(1)(c), p. 13 (1975), and the consensus, as stated in the current literature, is that statutes remov[ing] the breach of the peace limitation and thereby permit[ting] arrest without warrant for any misdemeanor committed in the arresting officers presence have
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.14 Instead, she asks us to mint a new rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See Wyoming v. Houghton, 526 U.S. 295, 299300 (1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652653 (1995). Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention.15
If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. 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. Atwaters claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.
But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e.g., United States v. Robinson, 414 U.S. 218, 234235 (1973). Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the governments side with an essential interest in readily administrable rules. See New York v. Belton, 453 U.S. 454, 458 (1981) (Fourth Amendment rules
At first glance, Atwaters argument may seem to respect the values of clarity and simplicity, so far as she claims that the Fourth Amendment generally forbids warrantless arrests for minor crimes not accompanied by violence or some demonstrable threat of it (whether minor crime be defined as a fine-only traffic offense, a fine-only offense more generally, or a misdemeanor17). But the claim is not ultimately so simple, nor could it be, for complications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted.
One line, she suggests, might be between jailable and fine-only offenses, between those for which conviction could result in commitment and those for which it could not. The trouble with this distinction, of course, is that an officer on the street might not be able to tell. 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?18 Is the weight of the marijuana a gram above or a gram below the fine-only line?19 Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge?20 And so on.
But Atwaters refinements would not end there. She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where necessary for enforcement of the traffic laws or when [an] offense would otherwise continue and pose a danger to others on the road. Brief for Petitioners 46. (Were the line drawn at misdemeanors generally, a comparable qualification would presumably apply.) The proviso only compounds the difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwaters 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 Atwaters 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?
There is no need for more examples to show that Atwaters general rule and limiting proviso promise very little in the way of administrability. It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should. But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal §1983 liability for the misapplication of a constitutional standard, on the other. Atwaters rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur.21 For all these reasons, Atwaters various distinctions between permissible and impermissible arrests for minor crimes strike us as very unsatisfactory line[s] to require police officers to draw on a moments notice. Carroll v. United States, 267 U.S., at 157.
One may ask, of course, why these difficulties may not be answered by a simple tie breaker for the police to follow in the field: if in doubt, do not arrest. The first answer is that in practice the tie breaker would boil down to something akin to a least-restrictive-alternative limitation, which is itself one of those ifs, ands, and buts rules, New York v. Belton, 453 U.S., at 458, generally thought inappropriate in working out Fourth Amendment protection. See, e.g., Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 629 n. 9 (1989) (collecting cases); United States v. Martinez-Fuerte, 428 U.S. 543, 557558, n. 12 (1976) (The logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers). 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 suspects 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. Multiplied many times over, the costs to society of such underenforcement could easily outweigh the costs to defendants of being needlessly arrested and booked, as Atwater herself acknowledges.22
Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, how bad the problem is out there. Tr. of Oral Arg. 20. 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 magistrates review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U.S., at 5558, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release, see Tex. Tran. Code Ann. §543.002 (1999) (persons arrested for traffic offenses to be taken immediately before a magistrate). Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. See, e.g., Ala. Code §3214 (1999); Cal. Veh. Code Ann. §40504 (West 2000); Ky. Rev. Stat. Ann. §§431.015(1), (2) (Michie 1999); La. Rev. Stat. Ann. §32:391 (West 1989); Md. Transp. Code Ann. §26202(a)(2) (1999); S. D. Codified Laws §32332 (1998); Tenn. Code Ann. §407118(b)(1) (1997); Va. Code Ann. §46.2936 (Supp. 2000). It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. It is, in fact, only natural that States should resort to this sort of legislative regulation, for, as Atwaters own amici emphasize, it is in the interest of the police to limit petty-offense arrests, which carry costs that are simply too great to incur without good reason. See Brief for Institute on Criminal Justice at the University of Minnesota Law School and Eleven Leading Experts on Law Enforcement and Corrections Administration and Policy as Amici Curiae 11 (the use of custodial arrests for minor offenses [a]ctually [c]ontradicts [l]aw [e]nforcement [i]nterests). Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests. Whren v. United States, 517 U.S., at 818; see also Graham v. Connor, 490 U.S. 386, 395396 (1989) (excessive force actionable under §1983).
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 Atwaters 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.25 That fact caps the reasons for rejecting Atwaters request for the development of a new and distinct body of constitutional law.
Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause applie[s] to all arrests, without the need to balance the interests and circumstances involved in particular situations. Dunaway v. New York, 442 U.S. 200, 208 (1979). 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.
Atwaters 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. She admits that neither she nor her children were wearing seat belts, as required by Tex. Tran. Code Ann. §545.413 (1999). Turek was accordingly authorized (not required, but authorized) to make a custodial ar-
rest without balancing costs and benefits or determin-
ing whether or not Atwaters arrest was in some sense necessary.
Nor was the arrest made in an extraordinary manner, unusually harmful to [her] privacy or physical interests. Whren v. United States, 517 U.S., at 818. As our citations in Whren make clear, the question whether a search or seizure is extraordinary turns, above all else, on the manner in which the search or seizure is executed. See id., at 818 (citing Tennessee v. Garner, 471 U.S. 1 (1985) (seizure by means of deadly force), Wilson v. Arkansas, 514 U.S. 927 (1995) (unannounced entry into a home), Welsh v. Wisconsin, 466 U.S. 740 (1984) (entry into a home without a warrant), and Winston v. Lee, 470
U.S. 753 (1985) (physical penetration of the body)). Atwaters arrest was surely humiliating, as she says in her brief, but it was no more harmful to privacy or physical interests than the normal custodial arrest. She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.
The Court of Appealss en banc judgment is affirmed.
APPENDIX TO OPINION OF THE COURT
State Statutes Authorizing Warrantless Misdemeanor Arrests
Ala. Code §15103(a)(1) (Supp. 2000) (authorizing warrantless arrest for any public offense committed in the presence of the officer);
Alaska Stat. Ann. §12.25.030(a)(1) (2000) (for a crime committed in the presence of the person making the arrest);
Ariz. Rev. Stat. Ann. §133883(a)(2) (Supp. 2000) (for a misdemeanor committed in the officers presence);
Ark. Code Ann. §1681106(b)(2)(a) (Supp. 1999) (where a public offense is committed in [the officers] presence);
Cal. Penal Code Ann. §836(a)(1) (West Supp. 2001) (where the person to be arrested has committed a public offense in the officers presence);
Colo. Rev. Stat. §163102(1)(b) (2000) (when [a]ny crime has been or is being committed in the officers presence);
Conn. Gen. Stat. §541f(a) (Supp. 2000) (for any offense when arrestee is taken in the act);
Del. Code Ann., Tit. 11, §1904(a)(1) (1995) (for any misdemeanor committed in the officers presence);
D.C. Code Ann. §23581(a)(1)(B) (1996) (where officer has probable cause to believe a person has committed an offense in the officers presence);
Fla. Stat. §901.15(1) (Supp. 2001) (for misdemeanor or ordinance violation committed in presence of the officer);
Ga. Code Ann. §17420(a) (Supp. 1996) (for a crime if the offense is committed in [the] officers presence);
Haw. Rev. Stat. §8035(a) (1999) (when the officer has probable cause to believe that [a] person has committed any offense);
Idaho Code §19603(1) (1997) ([f]or a public offense committed or attempted in [officers] presence);
Ill. Comp. Stat., ch. 725 §5/1072(1)(c) (1992) (when the officer has reasonable grounds to believe that the person is committing or has committed an offense);
Ind. Code §353311(a)(4) (Supp. 2000) (when the offi-
cer has probable cause to believe a person is committing or attempting to commit a misdemeanor in the officers presence);
Iowa Code §804.7(1) (1994) ([f]or a public offense committed or attempted in the peace officers presence);
Kan. Stat. Ann. §222401(d) (1999 Cum. Supp.) (for [a]ny crime, except a traffic infraction or a cigarette or tobacco infraction, committed in the officers view);
Ky. Rev. Stat. Ann. §431.005(1)(d) (Michie 1999) (for any offense punishable by confinement committed in the officers presence); §431.015(2) (Supp. 2000) (officer should generally issue citation rather than arrest for certain minor violations);
La. Code Crim. Proc. Ann., Art. 213(3) (West 1991) (where the officer has reasonable cause to believe that the person to be arrested has committed an offense);
Me. Rev. Stat. Ann., Tit. 15, §704 (1980) (persons found violating any law of the State or any legal ordinance
or bylaw of a town); Tit. 17A, §15(1)(B) (1983 and
Supp. 2000) (for misdemeanors committed in the officers presence);
Md. Ann. Code, Art. 27, §594B(a) (1996 and 2000 Supp.) (any person who commits, or attempts to commit, any felony or misdemeanor in the presence of an officer);
Mass. Gen. Laws, ch. 276, §28 (1997) (for designated misdemeanor offenses); ch., 272, §60 (for littering offenses where identity of arrestee is not known to officer);
Mich. Comp. Laws Ann. §764.15(1)(a) (West 2000) (for felony, misdemeanor, or ordinance violation committed in the officers presence);
Minn. Stat. §629.34(1)(c)(1) (Supp. 2001) (when a public offense has been committed or attempted in the officers presence);
Miss. Code Ann. §9937 (Supp. 1998) (for indictable offense committed in presence of officer); §45321(1) (a)(vi) (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. Rev. Stat. §479.110 (2000) (of any person who commits an offense in [the officers] presence);
Mont. Code Ann. §466311(1) (1997) (if the officer has probable cause to believe that the person is committing an offense);
Neb. Rev. Stat. §29404.02(2)(d) (1995) (when the officer has probable cause to believe that the person has committed a misdemeanor in his presence);
Nev. Rev. Stat. §171.172 (1997) (in fresh pursuit of a person who commits any criminal offense in the presence of the officer);
N. H. Rev. Stat. Ann. §614:7 (Supp. 2000) (in fresh pursuit of any person who has committed any criminal offense in the presence of the officer); §594:10(I)(a) (upon probable cause for misdemeanor or violation committed in officers presence);
N. J. Stat. Ann. §53:21 (Supp. 2000) (for violations of the law committed in [the officers] presence);
N. M. Stat. Ann. §3132(A)(4)(d) (1999) (any person in the act of violating the laws of the state or the ordinances of the municipality); §301616(B) (1994) (for falsely obtaining services or accommodations); §301623 (of any person officer has probable cause to believe has committed the crime of shoplifting);
N. Y. Crim. Proc. Law §§140.10(1)(a) and (2) (McKinney Supp. 2001) (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);
N. C. Gen. Stat. §15A401(b) (1999) (where an officer
has probable cause to believe the person has commit-
ted a criminal offense in the officers presence and for
misdemeanors out of the officers presence in certain
N. D. Cent. Code §290615(1)(a) (Supp. 1999) ([f]or a public offense, committed or attempted in the officers presence);
Ohio Rev. Code Ann. §2935.03 (1997 and Supp. 2000) (of a person found violating a law of this state, an ordinance of a municipal corporation, or a resolution of a township); but see §2935.26 (1997) (providing that 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, except in specified circumstances);
Okla. Stat. Tit. 22, §196(1) (Supp. 2001), ([f]or a pub-
lic offense, committed or attempted in [the officers]
Ore. Rev. Stat. §133.310(1) (1997) (upon probable cause for any felony, Class A misdemeanor, or any other offense in the officers presence except traffic infractions and minor violations);
Pa. Stat. Ann., Tit. 71, §252(a) (Purdon 1990) (for all violations of the law, including laws regulating the use of the highways, which they may witness);
R. I. Gen. Laws §1273 (2000) (for misdemeanors and petty misdemeanors where [t]he officer has reasonable grounds to believe that [the] person cannot be arrested later, or [m]ay cause injury to himself or herself or others or loss or damage to property unless immediately
S. C. Code Ann. §171330 (1985) (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 §23A32 (1998) ([f]or a public offense, other than a petty offense, committed or attempted in [the officers] presence);
Tenn. Code Ann. §407103(a)(1) (Supp. 2000) ([f]or a public offense committed or a breach of the peace threatened in the officers presence); see also §407118(b)(1) (1997) (officer who has arrested a person for the commission of a misdemeanor should generally 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. Proc. Ann., Art. 14.01 (Vernon 1977) (for any offense committed in his presence or within his view);
Utah Code Ann. §103915 (1999) (for any offense directly prohibited by the laws of this state or by ordinance); §7772 (for any public offense committed in presence of officer);
Vt. Rule Crim. Proc. 3(a) (2000) (where officer has probable cause to believe that a crime is committed in his presence); see also Rule 3(c) (law enforcement officer acting without warrant who is authorized to arrest a person for a misdemeanor should generally issue a citation to appear before a judicial officer in lieu of arrest);
Va. Code Ann. §19.281 (2000) (of any person who commits any crime in the presence of [an] officer);
Wash. Rev. Code §10.31.100 (Supp. 2001), as amended by 2000 Wash. Laws 119, §4 (for misdemeanors committed in the presence of the officer);
W. Va. Code §62109 (2000) (for all violations of any of the criminal laws of the United States, or of this state, when committed in [an officers] presence);
Wis. Stat. §968.07(1)(d) (1998) (when [t]here are reasonable grounds to believe that the person is committing or has committed a crime); and
Wyo. Stat. Ann. §72102(b)(i) (1999) (when [a]ny criminal offense is committed in the officers presence).
1. Turek had previously stopped Atwater for what he had thought was a seatbelt violation, but had realized that Atwaters son, although seated on the vehicles armrest, was in fact belted in. Atwater acknowledged that her sons seating position was unsafe, and Turek issued a verbal warning. See Record 379.
2. The term apparently meant very different things in different
common-law contexts. For instance, under a statute enacted during the reign of Charles II forbidding service of any warrant or other court process on Sunday except in cases of treason, felony or breach of the peace, 29 Car. II, ch. 7, §6, 8 Statutes at Large 414 (1676), it was held that every indictable offense was constructively a breach of the peace, Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 574 (1924); see also Ex parte Whitchurch, 1 Atk. 56, 58, 26 Eng. Rep. 37, 39 (Ch. 1749). The term carried a similarly broad meaning when employed to define the jurisdiction of justices of the peace, see 2 W. Hawkins, Pleas of the Crown, ch. 8, §38, p. 60 (6th ed. 1787) (hereinafter Hawkins), or to delimit the scope of parliamentary privilege, see Williamson v. United States, 207 U.S. 425, 435446 (1908) (discussing common-law origins of Arrest Clause, U.S. Const., Art. I, §6, cl. 1). Even when used to describe common-law arrest authority, the terms precise import is not altogether clear. See J. Turner, Kennys Outlines of Criminal Law §695, p. 537 (17th ed. 1958) (Strangely enough what constitutes a breach of the peace has not been authoritatively laid down); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578579 (The expression breach of the peace seems clearer than it is and there is a surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law); Wilgus, supra, at 573 (What constitutes a breach of peace is not entirely certain). More often than not, when used in reference to common-law arrest power, the term seemed to connote an element of violence. See, e.g., M. Dalton, Country Justice, ch. 3, p. 9 (1727) (The Breach of th[e] Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands, or other Possessions, whether by threatening words, or by furious Gesture, or Force of the Body, or any other Force used in terrorem). On occasion, however, common-law commentators included in their descriptions of breaches of the peace offenses that do not necessarily involve violence or a threat thereof. See M. Hale, A Methodical Summary of the Principal Matters Relating to the Pleas of the Crown *134 (7th ed. 1773) (Barretries); 4 W. Blackstone, Commentaries on the Laws of England 149 (1769) (hereinafter Blackstone) ([s]preading false news). For purposes of this case, it is unnecessary to reach a definitive resolution of the uncertainty. As stated in the text, we will assume that as used in the context of common-law arrest, the phrase breach of the peace was understood narrowly, as entailing at least a threat of violence.
3. E. Foss, The Judges of England 113 (1864).
4. Cf. E. Trotter, Seventeenth Century Life in the Country Parish: With Special Reference to Local Government 88 (1919) (describing broad authority of local constables and concluding that [i]n short, the constable must apprehend, take charge of and present for trial all persons who broke the laws, written or unwritten, against the Kings peace or against the statutes of the realm ).
5. 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).
6. 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. 757, 772 (1994), also contain dicta suggesting a somewhat broader conception of common-law arrest power than the one Atwater advances. See, e.g., King v. Wilkes, 2 Wils. K.B., at 158, 95 Eng. Rep., at 741 ([I]f a crime be done in his sight, a justice of the peace may commit the criminal upon the spot); Money v. Leach, 3 Burr., at 1766, 97 Eng. Rep., at 1088 (The common law, in many cases, gives authority to arrest without a warrant; more especially, where taken in the very act ).
7. 7 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.
8. Atwater seeks to distinguish the nightwalker statutes by arguing that they just reflected the reasonable notion that, in an age before lighting, finding a person walking about in the dead of night equaled probable suspicion that the person was a felon. Reply Brief for Petitioners 7, n. 6. Hale indicates, however, that nightwalkers and felons were not considered to be one and the same. 2 Hale, History of the Pleas of the Crown, at 97 (And such a watchman may apprehend night-walkers and commit them to custody till the morning, and also felons and persons suspected of felony).
9. Given these early colonial and state laws, the fact that a number of States that ratified the Fourth Amendment generally incorporated common-law principles into their own constitutions or statutes, see Wilson v. Arkansas, 514 U.S. 927, 934 (1995), cannot aid Atwater here. Founding-era receptions of common law, whether by state constitution or state statute, generally provided that common-law rules were subject to statutory alteration. See, e.g., Del. Const., Art. 25 (1776), 2 W. Swindler, Sources and Documents of United States Constitutions 203 (1973) (hereinafter Swindler) (The common law of England shall remain in force, unless [it] shall be altered by a future law of the legislature); N. J. Const., Art. XXII (1776), 6 Swindler 452 ([T]he common law of England shall still remain in force, until [it] shall be altered by a future law of the Legislature); N. Y. Const., Art. XXXV (1777), 7 Swindler 177178 ([S]uch parts of the common law of England, and of the statute law of England and Great Britain as together did form the law of [New York on April 19, 1775,] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same); N. C. Laws 1778, ch. V, in 1 First Laws of the State of North Carolina 353 (J. Cushing ed. 1984) ([A]ll such Parts of the Common Law, as were heretofore in Force and Use within this Territory which have not been abrogated [or] repealed are hereby declared to be in full Force within this State); Ordinances of May 1776, ch. 5, §6, 9 Statutes at Large of Virginia 127 (W. Hening ed. 1821) ([T]he common law of England shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of this colony).
10. Courts and commentators alike have read the 1792 Act as conferring broad warrantless arrest authority on federal officers, and, indeed, the Acts passage so soon after the adoption of the Fourth Amendment itself underscores the probability that the constitutional provision was intended to restrict entirely different practices. 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.
11. 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 officers presence to justify a warrantless arrest is not grounded in the Fourth Amendment).
12. See Appendix, infra.
13. See, e.g., 18 U.S.C. § 3052 (Federal Bureau of Investigation agents authorized to make arrests without warrant for any offense against the United States committed in their presence); §3053 (same, for United States marshals and deputies); §3056(c)(1)(C) (same, for Secret Service agents); §3061(a)(2) (same, for postal inspectors); §3063(a)(3) (same, for Environmental Protection Agency officers); 19 U.S.C. § 1589a(3) (same, for customs officers); 21 U.S.C. § 878(a)(3) (same, for Drug Enforcement Administration agents); 25 U.S.C. § 2803(3)(A) (same, for Bureau of Indian Affairs officers).
14. And, indeed, the dissent chooses not to deal with history at all. See post (OConnor, J., dissenting). As is no doubt clear from the text, the historical record is not nearly as murky as the dissent suggests. See, e.g., supra, at 1114 (parliamentary statutes clearly authorizing warrantless arrests for misdemeanor-level offenses), 1516 (colonial and founding-era state statutes clearly authorizing same). History, moreover, is not just one of the tools relevant to a Fourth Amendment inquiry, post, at 2. Justice OConnor herself has observed that courts must be reluctant to conclude that the Fourth Amendment proscribes a practice that was accepted at the time of adoption of the Bill of Rights and has continued to receive the support of many state legislatures, Tennessee v. Garner, 471 U.S. 1, 26 (1985) (dissenting opinion), as the practice of making warrantless misdemeanor arrests surely was and has, see supra, at 1524. 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.
15. Although it is unclear from Atwaters briefs whether the rule she proposes would bar custodial arrests for fine-only offenses even when made pursuant to a warrant, at oral argument Atwaters counsel concede[d] that if a warrant were obtained, this arrest would be reasonable. Tr. of Oral Arg. 5.
16. Terry v. Ohio, 392 U.S. 1 (1968), upon which the dissent relies, see post, at 78, is not to the contrary. Terry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant (in the case of a search) or probable cause (in the case of arrest) provides; but at least in the absence of extraordinary circumstances, Whren v. United States, 517 U.S. 806, 818 (1996), there is no comparable cause for finicking when police act with such justification.
17. Compare, e.g., Brief for Petitioners 46 (fine-only) with, e.g., Tr. of Oral Arg. 11 (misdemeanors). Because the difficulties attendant to any major crime-minor crime distinction are largely the same, we treat them together.
18. See, e.g., Welsh, 466 U.S., at 756 (first DUI offense subject to maximum fine of $200; subsequent offense punishable by one years imprisonment); Carroll v. United States, 267 U.S. 132, 154 (1925) (first offense of smuggling liquor subject to maximum fine of $500; subsequent offense punishable by 90 days imprisonment); 21 U.S.C. § 844a(a), (c) (first offense for possession of personal use amount of controlled substance subject to maximum $10,000 fine; subsequent offense punishable by imprisonment); Tex. Penal Code Ann. §§42.01, 49.02, 12.23, 12.43 (1994 and Supp. 2001) (first public drunkenness or disorderly conduct offense subject to maximum $500 fine; third offense punishable by 180 days imprisonment).
19. See, e.g., 21 U.S.C. § 844 844a (possession of personal use amount of a controlled substance subject to maximum $10,000 fine; possession of larger amount punishable by one years imprisonment); Tex. Health & Safety Code Ann. §481.121(b) (Supp. 2001) (possession of four ounces or less of marijuana a misdemeanor; possession of more than four ounces a felony). See generally National Survey of State Laws 151188 (3d R. Leiter ed. 1999) (surveying state laws concerning drug possession).
20. For instance, the act of allowing a small child to stand unrestrained in the front seat of a moving vehicle at least arguably constitutes child endangerment, which under Texas law is a state jail felony. Tex. Penal Code Ann. §§22.041(c), (f) (Supp. 2001). Cf. also 21 Am. Jur. 2d Criminal Law §28 (1998) ([S]ome statutory schemes permit courts in their discretion to term certain offenses as felonies or as misdemeanors).
21. See United States v. Watson, 423 U.S. 411, 423424 (1976) ([T]he judgment of the Nation and Congress has long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like).
22. The doctrine of qualified immunity is not the panacea the dissent believes it to be. See post, at 89. As the dissent itself rightly acknowledges, even where personal liability does not ultimately materialize, the mere specter of liability may inhibit public officials in the discharge of their duties, post, at 9, for even those officers with airtight qualified immunity defenses are forced to incur the expenses of litigation and to endure the diversion of [their] official energy from pressing public issues, Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). Further, and somewhat perversely, the disincentive to arrest produced by Atwaters opaque standard would be most pronounced in the very situations in which police officers can least afford to hesitate: when acting on the spur (and in the heat) of the moment, supra, at 26. We could not seriously expect that when events were unfolding fast, an officer would be able to tell with much confidence whether a suspects conduct qualified, or even reasonably qualified, under one of the exceptions to Atwaters general no-arrests rule.
23. He referred to a newspaper account of a girl taken into custody for eating french fries in a Washington, D. C., subway station. Tr. of Oral Arg. 2021; see also Washington Post, Nov. 16, 2000, p. A1 (describing incident). Not surprisingly, given the practical and political considerations discussed in text, the Washington Metro Transit Police recently revised their zero-tolerance policy to provide for citation in lieu of custodial arrest of subway snackers. Washington Post, Feb. 27, 2001, at B1.
24. One of Atwaters amici described a handful in its brief. Brief for American Civil Liberties Union et al. as Amici Curiae 78 (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).
25. 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. Post, at 1314. Thus, the dissent warns, the rule that we recognize today has potentially serious consequences for the everyday lives of Americans and carries with it grave potential for abuse. Post, at 1213. But the dissents own language (e.g., may, potentially) betrays the speculative nature of its claims. Noticeably absent from the parade of horribles is any indication that the potential for abuse has ever ripened into a reality. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of minor-offense arrest authority.