William H. Rehnquist: We'll hear argument now in Number 99-1408, Gail Atwater v. The City of Lago Vista. Mr. De Carli.
Robert C. De Carli: Mr. Chief Justice, and may it please the Court-- Reasonableness is the touchstone of the Fourth Amendment. The court of appeals below, however, announced a broad new rule that permits custodial arrest for any offense committed in an officer's presence regardless of the nature of that offense. The court of appeals in doing so ignores the Fourth Amendment's requirement of reasonableness. First, it ignores the fact that a common law at the time of the Fourth Amendment's adoption such an arrest would not have been lawful.
William H. Rehnquist: Well, why would the common law be involved here Mr. De Carli if Texas law says otherwise?
Robert C. De Carli: Mr. Chief Justice, the common law should be considered because it is our position that the Fourth Amendment incorporates the protections, the restrictions on arrest that existed at the time of the Fourth Amendment's adoption.
William H. Rehnquist: Well, but you're arguing here that this offense should not have led to a custodial arrest, now as part of that argument has to be a condition of Texas law, isn't it? I mean if Texas law had authorized a custodial arrest for this, wouldn't your case be different? If you conceded that it authorized it?
Robert C. De Carli: No, Your Honor, because it is our position that the Fourth Amendment restricts the use of custodial arrest for minor offenses such as this. If Texas were to increase the penalty for this offense, then it would be a different balancing.
Antonin Scalia: Even with a warrant you couldn't do a custodial arrest?
Robert C. De Carli: No, but let me qualify that. It would be a much weaker argument, one we would lose the common law argument. Two, however, this Court... we're well aware of this Court's respect for warrants and the fact that interjecting a neutral and detached magistrate operates as a check. However, the fact is, by requiring a warrant, still that would only require probable cause and it's our position that probable cause does not sufficiently balance the competing interest, although I concede it's a much, it would be a much weaker argument--
Antonin Scalia: See, my problem is with your common law argument because the Fourth Amendment does not contain a warrant requirement, it just says if you do have, get a warrant, it has to be based upon probable cause, blah, blah, blah, blah, but the only root requirement of the Fourth Amendment is that the arrest be reasonable. You're telling me that you could do arrests at common law, so long... at least so long as there was a warrant.
Robert C. De Carli: --That's correct, Justice Scalia, and for that reason we say--
Antonin Scalia: Why would a warrant make it more reasonable?
Robert C. De Carli: --Because, Your Honor, it would interject a neutral and detached magistrate who we would hope would say Officer Turek, why are you arresting this woman for not wearing a seat belt? Why do we not issue a summons. Why not issue just a traffic citation.
William H. Rehnquist: Would that be a magistrate's prerogative ordinarily? Isn't it a magistrate's prerogative to find probable cause.
Robert C. De Carli: Yes, Mr. Chief Justice, and for that reason I'm willing to concede that if a warrant were obtained, this arrest still would be reasonable. Our position is that probable cause, although it works as a balancing of the competing interest of law enforcement and the individual in some instances, in the setting before the court and in most traffic offenses, it does nothing to balance the competing interest of the individual.
Sandra Day O'Connor: What about the situation of a traffic violator, maybe parking tickets or maybe seat belt use, who continues repeatedly to refuse to use a seat belt or to pay the parking fee when parking a car and has a whole string of tickets for it? Does there come a time when due to the repeated nature and in the case of seat belts possible endangerment of children that the state can say, okay, custody here is required, this person just won't cooperate?
Robert C. De Carli: Justice O'Connor, I believe that time would come when, if I understand you correctly, you're alluding to nonappearances, the repeat offender.
Sandra Day O'Connor: Well, it's possible that a nonappearance could amount to something that generates jail time, but I'm just talking about the repeat offender.
Robert C. De Carli: Okay.
Sandra Day O'Connor: Without an offense that requires jail time.
Robert C. De Carli: Without the nonappearance problem. What that raises is it's the distinction between punishment and enforcement. Punishing the repeat offender is not the role of the police officer, that's the role for a judge or a legislature that has provided heightened penalties.
Sandra Day O'Connor: Not punishment, a concern for highway safety.
Robert C. De Carli: Well, Your Honor, the thing is, even the repeated, the fact if there are repeated penalties and there is no heightened penalty, well then the legislature has made a determination that on the balance that does not regard that aspect of highway safety is that sufficient to justify the intrusion.
Sandra Day O'Connor: I notice that Judge Weiner in the case below had a suggested approach, a different approach, that when there's a plausible articulable reason for affecting such an intrusion, it's lawful.
Robert C. De Carli: Yes, Your Honor, and I read that as trying to encompass what this Court in its opinion issued last week referred to as vehicular bound imminent threats to life and limb which would be driving while intoxicated, driving under the influence of drugs or alcohol.
Sandra Day O'Connor: Oh, presumably that can generate jail time.
Robert C. De Carli: In some cases. In most cases, however, I believe that in some jurisdictions still first offense drunk driving there is no jail time. So I would still, we would still argue it would be reasonable, because some of those offenses driving intoxicated and reckless driving amount, in essence, to breaches of the peace, they are by their nature violent, they impose a threat. They threaten the health and safety of others on the road directly and I think--
Sandra Day O'Connor: Does repeated nonuse of a seat belt for minor children constitute a threat to safety?
Robert C. De Carli: --Justice O'Connor, I think it would be a closer question, but I would still defer to the fact that if the legislature has not increased, has not provided for heightened penalties, for repeat offenders, repeat nonuse of seat belts, that still it is not that limited category of offenses that impose an imminent threat to life and limb on the road.
William H. Rehnquist: When you say... go ahead--
Anthony M. Kennedy: --Suppose in this case the driver was from another state, could there have been an arrest made.
Robert C. De Carli: No, Your Honor, and let me explain why. One, states have already provided for that kind of situation in the uniform violator compact act where if somebody does not appear, then their license can be revoked in that other state.
Anthony M. Kennedy: So the risk of nonappearance is not part of the balance that you want the police officer to--
Robert C. De Carli: Well, Justice Kennedy, I think the approach to that, there already is a way of dealing with that and that is if a party does not appear, then that's a separate offense, there is a penalty provided for that, a warrant may be issued for that person's arrest, and they are then subject to punishment for that additional offense.
Anthony M. Kennedy: --Can a police officer in an out of state case use the time honored tradition of giving you a police escort to the station where you pay your fine?
Robert C. De Carli: Your Honor--
Anthony M. Kennedy: That's a stop, it's a seizure of sorts.
Robert C. De Carli: --The problem that we--
Anthony M. Kennedy: That's sort of an old tradition in some of our states.
Robert C. De Carli: --Well, it depends... the problem with that approach is it leads to, and in part what respondents, respondents have implicitly made this argument that this was a brief arrest. Ms. Atwater was helped into the police car. What that leads to is it's distinguishing between the degrees of the custodial arrest, even though once that person is removed from the scene, the safety of their car, once under custodial arrest, their life... or excuse me, their liberty and property interests are completely forfeited.
William H. Rehnquist: Mr. De Carli, a moment ago you said you thought perhaps reckless driving might be a breach of the peace. Is that a term of art, breach of the peace? The briefs indicate that there's considerable differences to what it meant at common law.
Robert C. De Carli: Mr. Chief Justice, it is clear at common law that breach of the peace when used in the context of the law of arrest referred to a group of offenses that either involved violence or the type of conduct that would incite immediate violence.
William H. Rehnquist: The opposing briefs suggest differently. But I recognize also that your briefs also have supporting authority. I'm just not sure whether that's too happy a distinction. What should turn on breach of the peace which is basically a common law concept.
Robert C. De Carli: Well, Mr. Chief Justice, I believe that if we look to, again the decision of last week, and other decisions of this Court, Delaware v. Prous, I guess Sitz would be an example, there are certain offenses, in the context of the traffic offenses where by their very nature they impose a grave risk of harm to others on the road.
William H. Rehnquist: What if Texas here had said that this particular offense was, you know, that it could be 10 days in jail or 300 fine? Could the officer have done what he did here?
Robert C. De Carli: Mr. Chief Justice, it would be a much closer case then.
William H. Rehnquist: Could you answer... answer yes or no and then explain.
Robert C. De Carli: Well, let me, part of my vacillation is in... we proposed a rule, in looking back at that, I now wonder, well, perhaps the correct approach would be to rely exclusively on the common law. The common law provided a clear boundary, breach of the peace, nonbreach of the peace and felonies.
Anthony M. Kennedy: The common law as of what date.
Robert C. De Carli: As of the adoption of the Fourth Amendment which would be 1791.
Anthony M. Kennedy: What is your answer to the Chief Justice's question, yes or no.
Robert C. De Carli: Unless there were... the answer would be no. I'm sorry.
David H. Souter: What do you make of the nightwalker statute argument that at the same period in which you're arguing there was at least a threshold of immunity set here, it was clear in English law that nightwalkers who were not breaching the peace in your sense could be arrested.
Robert C. De Carli: Justice Souter, I think the correct, I believe the correct way to look at the nightwalker statutes is this was a time before any lighting, anybody that was walking about in the dead of night it was reasonable to presume that that person was a felon, until--
David H. Souter: Yeah, but the fact that the person was a felon, even that he intended to commit a felony, is that what you mean?
Robert C. De Carli: --Well that the person may have committed a felon or they were up to no good. Nobody walking about in the dead of the night in the 17th century was doing anything other than contemplating criminal acts. I think at the... that's the way I understand the nightwalker statute.
Anthony M. Kennedy: They didn't have insomniacs back then?
Robert C. De Carli: I think Justice Kennedy they stayed indoors because it was too dark.
Ruth Bader Ginsburg: You answered the Chief Justice's question that if the state had said we regard not buckling up as very serious, therefore 10 days in jail, then you would have no case to complain about a custodial arrest for that, is that so?
Robert C. De Carli: Well, Justice Ginsburg, again, it depends on, our case is a core case, I mean it falls under the rule the common law end of any balancing--
Ruth Bader Ginsburg: But I'm just asking you the question.
Robert C. De Carli: --Yes.
Ruth Bader Ginsburg: Is it just... so a seat belt in one state could be one thing if the state chooses to make it a more serious offense, and another thing in another state?
Robert C. De Carli: If the line is drawn not based on the common law but as we had proposed in our brief the jailable versus fine only distinction.
Ruth Bader Ginsburg: Now here in this very case, could the officer have said, child endangerment is a felony, so it's not simply the misdemeanor of not buckling up, but you've put your children in danger and therefore the offense is child endangerment which is a felony.
Robert C. De Carli: Several responses to that Justice Ginsburg. First, in that instance, probable cause, if the arrest were based on alleged child endangerment there probable cause would act as a restraint because the police officer to justify the arrest would have to establish a certain degree of certainty that the specific conduct was child endangerment. Now, this was not child endangerment for several reasons, one, the legislature has imposed an extremely minimal penalty, two, it's not child endangerment because you are set... by virtue of the fact that if we were to call this child endangerment then not using your turn signal or perhaps speeding or running a red light, those are just as close to any possible harm as not wearing a seat belt. There's a causation problem, in other words. And most importantly is that by, if we truly are concerned about the welfare of the children, then arresting the mother and taking the mother away is inflicting a far greater harm on those children, and it's doing--
Sandra Day O'Connor: Well, the facts here are very unattractive. I mean one doesn't like to think that a mother is going to be stopped for not wearing a seat belt and have her children in tears in the car while the mother is hauled off to jail. You've got the perfect case.
Robert C. De Carli: --We'd like to think so Justice O'Connor.
Sandra Day O'Connor: But I think what we're concerned with is the broader rule because it has millions of permutations and applications across the country. And conceivably the Fourth Amendment at bottom does always require a kind of reasonableness test, and that's why I thought Judge Weiner's approach might make a little sense here.
Robert C. De Carli: It might. I mean the extraordinary no arrest for fine only offenses absent an articulable fact that explains why an arrest would be justified.
Stephen G. Breyer: So what do you think, Bob, it seems to me that the strongest argument against you has nothing to do with this case, it has to do with the police officers being human. They say to the police officer, look, if somebody commits a crime in your presence you can arrest them. But you can't use... do an unusual thing, you know, you can't use excessive force, et cetera, but as long as you behave in a normal manner, crime, you see it, arrest them. Anyone can understand that.
Robert C. De Carli: Right.
Stephen G. Breyer: And the problem with your side and the people who are supporting it is are they coming up with something that works? I mean, a policeman isn't going to know the common law or breaches of the peace. A police... they're just not going to understand that. So is there some kind of practical alternative to this simple rule which has in it a way of catching abuses through the nonnormal behavior.
Robert C. De Carli: Justice Breyer, I really do believe that in the context of traffic offenses, and I'll explain a little bit later why it's valid to limit a holding or a rule to traffic offenses, it is not all that complex because there are only a few offenses that... in which, most of which this Court has identified in other opinions where the arrest... where the use of a custodial arrest would indeed further enforcement, I mean, I guess one, drunk driving, driving while intoxicated, reckless driving, closer arguably the unlicensed driver, although--
William H. Rehnquist: Speeding.
Robert C. De Carli: --No, Your Honor.
William H. Rehnquist: No what.
Robert C. De Carli: No, Your Honor, speeding... it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving. And that's where you have the same probable cause determinations.
Stephen G. Breyer: What if the state does think that--
John Paul Stevens: --What if the speeder is from another jurisdiction?
Robert C. De Carli: I'm sorry.
John Paul Stevens: What if the speeder if from another jurisdiction?
Robert C. De Carli: Your Honor, oh, Justice Stevens, again, that returns to the response I believe I gave to Justice O'Connor or Justice Kennedy that in essence respondents seek a prophylactic rule in that we are to cede discretion to arrest to police officers on the chance that people from another jurisdiction are going to run away and not pay their fine.
Antonin Scalia: I think that's a standard rule for policemen to stop motorists and state if you're from out of the jurisdiction you either pay the fine now or follow me to the courthouse.
Robert C. De Carli: But Justice Scalia--
Antonin Scalia: I'm quite sure that's standard procedure in any number of states. And you say that's all bad, you just have to say, well, hope you come back to Wyoming someday.
Robert C. De Carli: --It's... Justice Scalia, I think the reason why it's, I mean if we're looking for a bright line rule, the problem that permitting a custodial arrest in that situation would lead to is, if we say, okay, out of state person, he's not going to come back to Wyoming, high risk, if you allow the arrest, then what that means is the person is potentially held in custody before a probable cause--
Antonin Scalia: I hate to constitutionalize all this thing, everything becomes a constitutional case. Is there a police chief in Lago Vista?
Robert C. De Carli: --Yes, yes, Justice Scalia.
Antonin Scalia: Is he elected?
Robert C. De Carli: Yes.
Antonin Scalia: Do his constituents think it's a good idea for his officers to arrest women for not having their kids in seat belts.
Robert C. De Carli: My understanding is there is a deep divide in the community regarding the issue.
Ruth Bader Ginsburg: But he's not in the case anymore and that raises another question, given the division of the judges, it's really interesting, the district court thought your case was frivolous and then five judges on the court of appeals thought it was very serious. But isn't it almost certain that this Officer Turek would have qualified immunity given... how could one say that the law was clearly established given the division among the Federal judges.
Robert C. De Carli: I have three responses to that, Justice Ginsburg. First, the Fifth Circuit clearly did not address that issue, the en bloc majority. They explicitly refrained from making that determination. But second, even though, yes, it is conceivably... it would be a tough hurdle to overcome with regard to Officer Turek. However the city still is in the lawsuit and Judge--
Ruth Bader Ginsburg: But the police chief isn't. He's been dismissed and you're not challenging that. If you're relying on a practice or policy of the city to hold the city, where would that policy or practice have come from other than the police chief who has been dismissed?
Robert C. De Carli: --My understanding is that the... if it were to be remanded back to the Fifth Circuit, if this Court were to find a Fourth Amendment violation, the Fifth Circuit majority never addressed that... those specific issues, but it would still be live against the city based on the finding of Judge Sparks that there was a policy on the part of the city. The city had this policy.
Antonin Scalia: Which judge made that.
Robert C. De Carli: Judge Sparks, Judge Sparks in the... I guess it would be Appendix... the third Appendix basically stated that it was a... a policy was established. A policy was established, but no constitutional violation had been established.
Ruth Bader Ginsburg: This is the judge who thought the claim was frivolous.
Robert C. De Carli: Yes, but Judge Sparks is a good judge. And I think part of that resulted from the trial counsel, frankly.
Speaker: Mr. De Carli, let's assume that I don't find your constitutional argument conclusive, at this point I'll be candid to say I'm not sure how to assess it.
David H. Souter: But I assume that I don't find it conclusive. One of the things that I would like to know more about if we have to engage in a reasonableness determination here in setting a standard, is how bad the problem is out there. And one of the things that I know both, I forget whether it's from your brief or from the brief on the other side, in a number of jurisdictions in which arrests for misdemeanors without any distinction, and arrests for even the more minor offenses, some states called them violations, the submisdemeanor, but technically criminal offenses, is permitted without warrant if committed in the officer's presence. And the commonness of the practice leads me to question how many horrible cases like this one are there out there? Are we faced with a case in which the facts indeed are about as good for you as I think, you know, they could be, but are we, by the same token, faced with a case which is very rare and should not be the basis for constitutionalizing a general rule? How big is the problem.
Robert C. De Carli: Justice Souter, I've tried to determine how big the problem was by going to the Department of Justice, which of course provides the most authoritative statistics. Unfortunately, they don't address the issue. However, anecdotally, there, you know... well, just a few weeks ago we saw the young girl arrested for not... for eating french fries in the substation.
David H. Souter: Where did we see this?
Robert C. De Carli: In the District of Columbia, I believe.
David H. Souter: I hadn't seen it myself.
Robert C. De Carli: I'm sorry. It was in the--
David H. Souter: I didn't see it.
Antonin Scalia: He immerses himself in these briefs.
Robert C. De Carli: --And that's good.
Anthony M. Kennedy: It's not a constitutional violation for a police officer to be a jerk. And what we're trying to do is define whether there are some rules that we can work with. And yours seems to me so amorphous, and the brief of the respondents summarized four or five different tests being given by the amicus briefs and they're all different. And you're not even clear that your own tests... you say on reflection this is adequate--
Robert C. De Carli: Well, Justice Kennedy, all of the tests provided by petitioners and their amici are actually remarkably similar in that they all recognize that there should be a limited amount of discretion for those close cases, however, we can carve out whether that be through offenses that involve... of imminent threat of harm. Or if we call it a breach of the peace. Or if we draw a distinction between fine only and jailable, lines can be drawn. That's one point. To get back to Justice Scalia's comment about the fear of the problem of constitutionalizing everything, I refer to Justice Story's comment that the Fourth Amendment was indeed an embodiment of the common law.
Antonin Scalia: --What about deterrence? Don't you think people are going to be pretty unlikely to eat french fries on the subway in Washington.
Robert C. De Carli: That's correct, Justice Scalia--
Antonin Scalia: And maybe in Lago Vista, not to belt up their kids?
Robert C. De Carli: --Yes, but the problem--
Antonin Scalia: Well is that worth nothing?
Robert C. De Carli: --No. But that is confusing punishment with enforcement. Deterrence is a justification for punishment. And police officers should be enforcing laws and not punishing. Mr. Chief Justice, if I may, I'd like to reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. De Carli. Mr. George we'll hear from you.
Roger J. George, Jr.: Mr. Chief Justice, and may it please the Court-- The problem we're facing on the Fourth Amendment has to include both the seizure and the scope of the seizure and the nature of the seizure. And I want this Court to pay particular attention to the Texas statutory scheme, because the Texas statutory scheme is remarkable in that in traffic violations particularly, as opposed to other kinds of violations, it provides very explicitly that once an officer makes the decision to arrest, as opposed to giving a citation, that officer must immediately and the word in the statute is immediately, take the accused before the nearest magistrate and to have that magistrate determine whether or not the person should have to put up a bond or be released on their own recognizance. That system is exactly the system that is in my opinion specifically authorized by this Court's opinion in U.S. v. Watson, if you read the specific footnote 11 in that opinion, that is the specific kind of procedure that was authorized by this Court. It has the advantages that is the tradition in this country, at least since we've had automobiles, that in rural Texas, where I'm from, the fact that you get... run a red light in El Paso, and you're from Brady, doesn't... the people in El Paso are somewhat concerned that they'll ever see you again. It's a little easier to do something about it in today's world of computers and instant, relatively instant communication.
John Paul Stevens: Mr. George, can I just ask sort of a general question, why wouldn't that interest, and obviously you're certainly entitled to arrest somebody who's about to flee the jurisdiction or something like that, but why wouldn't that interest be accommodated by the statement of Justice Weiner, Judge Weiner in his dissent? There's got to be some reason, any reason, as long as it's plausible and relates to the problem. And the reason there is obvious the guy may not show up to pay the fine.
Roger J. George, Jr.: I believe the problem with Judge Weiner's appointment is the problem of being too unclear as to exactly what kind of reasons are good enough reasons.
Sandra Day O'Connor: It's about like a Terry stop, that's pretty... if there's a particular articulable reason to suspect there's a problem here you can make a Terry stop, I don't see that it's that different. That seems to work.
Roger J. George, Jr.: It does work in the Terry stop situation and we can--
Sandra Day O'Connor: Why wouldn't it work here?
Roger J. George, Jr.: --You can argue it was here. I mean this man's... if you look at page 422 of the record, his police report says I just stopped her a few weeks ago for the same violation. That's disputed fact. But that's what he articulated. And your concern about the repeat violators was at least written on the contemporaneous repeat offense report. It's important--
Sandra Day O'Connor: I'm not asking about this case.
Roger J. George, Jr.: --I understand that.
Sandra Day O'Connor: I'm asking about an appropriate workable rule. And I want to know why the Weiner formulation in your view is unworkable.
Roger J. George, Jr.: I think... well, I think it leads to the same problems that we've had to some extent in this Terry stop rules. Some rules, because it has to be coupled in my opinion with this instant immediate appearance before somebody else to make the decision. In this case Judge Thompson in Lago Vista agreed that some bond was required here.
Antonin Scalia: I'm not sure that a proper articulable rule... do you think that an acceptable articulable reason is that there's a breach of the peace in the more narrow sense? You know, the guy's really annoying people and getting boisterous and what not.
Roger J. George, Jr.: No.
Antonin Scalia: Because I mean it seems to me you don't necessarily have to take him in to stop that. You could go over and tell him, you know, you got a fine and if you do it again you're going to get another fine. That might shut him up right away.
Roger J. George, Jr.: I absolutely agree with that. And I don't think this Court has, at least if you read U.S. v. Watson, New York v. Payton, Judge White, Justice White's dissent in Welsh v. Wisconsin concurred in by the current Chief Justice all indicated as did the American Law Institute's model code referred to in U.S. v. Watson, all provided that the rule for arrest was, I see the person do it, in fact the ALI rule was, I saw a petty offense happening in front of the officer. In this case, there were five such offenses, driving without the seat belts, no driver's license--
Stephen G. Breyer: Their suggestion is there be another rule.
Roger J. George, Jr.: --I understand.
Stephen G. Breyer: And the other rule would be what Justice O'Connor just said. And so my question would be the same, what's wrong with that? I thought frankly your answer to that would be what is the set of arrests to which that rule applies. And then I was going to suggest the set of arrests that are punishable by fine only.
Roger J. George, Jr.: Well, I think that the same reason that there's something wrong with that--
Stephen G. Breyer: Now, what's wrong with that.
Roger J. George, Jr.: --Well, it assumes that the officer knows enough facts at the time to make a determination of what the crime will ultimately be charged.
Stephen G. Breyer: Well, as long as the officer has to have, doesn't the officer can arrest him only if he thinks he's breaking the law. So you say Mr. Policeman, what law was he breaking. And the policeman has to understand that if it's a law that's punishable by a fine only he has to have some reason for arresting the person rather than just citing.
Roger J. George, Jr.: Well, as this Court decided not to adopt that rule in Berkimer.
Stephen G. Breyer: My question is why not.
Roger J. George, Jr.: The answer is, because for example, much conduct can be both felony and misdemeanor.
Stephen G. Breyer: Well, that's absolutely fine, if the policeman thinks, forget felony/misdemeanor, I agree with you that felony/misdemeanor is not a workable rule. I don't know if others do or not. But felony/misdemeanor falls into the problem that different states define misdemeanor differently and it's so complicated nobody understands it. All right. So that's why I asked the rule that's been suggested by others, it's not mine originally, that if it's punishable by a fine only that's where Justice O'Connor's principle kicks in. Now, what would be wrong with that?
Roger J. George, Jr.: Because... same reason. They don't know enough facts. For example, in Texas--
Antonin Scalia: Is that your only reason, Mr. George, just that you're willing to argue this out on a case by case basis? I thought part of your argument was that when it says unreasonable seizures in the Constitution it has something in mind and doesn't leave it up to this Court to sit back and decide what's reasonable and unreasonable. I thought your argument was based on the fact that this has never been understood to be the constitutional rule. There has always been authority for the... for policemen to conduct arrests of this sort.
Roger J. George, Jr.: --Absolutely.
Antonin Scalia: Which, if they're abusive, the sheriff won't get reelected.
Roger J. George, Jr.: That's exactly the basis of my argument.
Antonin Scalia: Why don't you put that as your first line of defense and then argue on the, you know, on the--
Stephen G. Breyer: --If by chance the first line of defense was breached.
John Paul Stevens: Mr. George is trying convince of us that that's the reason--
Roger J. George, Jr.: Thank you Justice Scalia. Returning to Justice Breyer. If the first line is breached, let me return to that response. The problem is illustrated by public intoxication in Texas as in other jurisdictions. The number of offenses, the times you have done it changes the penalty. No way to know on the roadside whether this is the first time or the fourth time, if it is the second time in Texas, you go to jail. I mean it's punishable by jail. If it's the first time, it's not.
Antonin Scalia: --The answer is, if you don't know, you have no articulable reason. That's the answer. That's easy. If you don't know, you don't arrest.
David H. Souter: The burden is on the officer to be certain that it is the second offense or the third offense, whatever is necessary.
Roger J. George, Jr.: Yes, Justice Souter, that... Justice Breyer asked me why... what's wrong with the jail versus fine distinction. And in my view it is to put the burden on the officer requires too much of the officer and of course I have my first line of defense again, that is, that has never been--
Antonin Scalia: I know, but in that instance why can't the officer just radio in? We have John Doe, he's intoxicated, does this guy have a record?
Roger J. George, Jr.: --This Court's opinion in Arizona v. Evans in which the communications to the station and the computer system and they called down and they said he has an outstanding warrant but it turned out he didn't have an outstanding warrant. The problem is it assumes that in rural Texas or in other parts of this United States that there will be effective, prompt and accurate communication to--
Antonin Scalia: Well, then you're going to have the same problem when he goes before the magistrate in this little town. They still don't know anything.
Roger J. George, Jr.: --I understand. But you have an independent nonadversarial determination of what the terms of release ought to be, because we're only talking about whether to release people on their own recognizance for appearance at trial as opposed to requiring some sort of financial security for those people to appear at trial.
Anthony M. Kennedy: Yes, but Judge Weiner's rule, it's important to keep in mind, it only kicks in if it's a fine only offense in the first place, but if there is a reason such concern about appearance at trial, bingo, you're protected. I mean these situations do fall into certain large categories, one is the out of town speeders, you could always haul him to the station house, that's been settled for years and years and years as Justice Scalia points out. But what about those where there's absolutely no plausible reason for saying I have to make a custodial arrest here. Will you give the officer total absolute discretion just because he doesn't like the person or something of that nature?
Roger J. George, Jr.: Well, the discretion of the officer, the answer is no there's not absolute discretion because there's the limits of the equal protection clause, there's other kinds of constitutional limitations. He can't go around arresting only black people or Asian people or some other kind of arrangement, he cannot--
Anthony M. Kennedy: Or women with small children.
Antonin Scalia: Can they be held for 48 hours as other arrestees can or do they have to be, do you acknowledge that that's part of your rule that he really does have to be brought before a magistrate immediately.
Roger J. George, Jr.: --Not in Texas, they can't. If I were in your shoes I would have agreed you for this case in County of Riverside v.--
Sandra Day O'Connor: But that wasn't the decision. People can be held a long time. What happened to the arresting officer in this case? Do you defend that as a reasonable decision?
Roger J. George, Jr.: --In this case?
Sandra Day O'Connor: Yes.
Roger J. George, Jr.: On the basis, we're here on a summary judgment where he has never been deposed and all we have is arrest reports.
Sandra Day O'Connor: Right.
Roger J. George, Jr.: So the only thing I have is his arrest report. And on the basis of his arrest report, he says that he was... she had violated the same statute and he was concerned.
Sandra Day O'Connor: Even knowing it was a mother with two small children in a small town and what happens to the children? I mean this is kind of an amazing case, but you think that's fine.
Roger J. George, Jr.: Well, it would be a lot better that the children have to deal with having their mother taken before the magistrate than having to deal with the brain damage if they had... she had stepped on the brake five minutes later, five minutes later, would that 5-year-old standing up in the front seat of a pick up and she steps on the brake, it is a very serious incident, even at 15 miles an hour, assuming that was the actual speed.
Antonin Scalia: You don't have to think it's fine to think it's not unconstitutional, do you.
Roger J. George, Jr.: No, as I understood--
Antonin Scalia: There are a lot of really stupid things that aren't unconstitutional.
Roger J. George, Jr.: --Being a jerk is not unconstitutional. And assuming that Officer Turek is a jerk, let's just give them that position, and he was a jerk in this instance, that does not create a constitutional violation.
Stephen G. Breyer: It's true, in trying to think this through, and I'm having a difficult time working on this and I'm trying to think it through, and it seemed to me the strongest argument against the Weiner position is that it would lead to writing volume 7 of the treatise on the Fourth Amendment which would have an infinite number of rules in it about when the Terry stop type justification is enough or isn't enough. And rather than write... it seems to me we ought to reserve that for there being a real problem. But is there a real problem here? That's why anything you could say in respect to the, what you've read, in doing research for this, as to the scope and nature of the problem in general would be helpful to me.
Roger J. George, Jr.: No, there is no real problem.
Stephen G. Breyer: I know you think that, but I wondered if you've come across some things that you could refer me to.
Roger J. George, Jr.: No. The only things we have come across are the racial profiling issues. We have the New Jersey experience and we have some of the amici on the other side presenting that problem to this Court and this is a prophylactic solution to racial profiling because you never have custodial arrests for traffic violations. It is our judgment if that is the problem, if that's the only problem presented here, we deal with that problem by dealing with the equal protection violation it presents rather than creating, in my opinion, a whole lot more work for this Court and the lower Federal courts on deciding what the appropriate standard would be for this new variation away from probable cause.
David H. Souter: Mr. George, one of your arguments is the difficulty of administration argument, and you said earlier that when we're dealing with a level of offense in which it may be difficult to tell on the side of the road whether this would be subject to arrest or not subject to arrest, the... in effect the benefit of the doubt should be given to the officer and we shouldn't come up with a rule that in effect would penalize the officer. But why should the benefit of the doubt be given to the officer? Why should the burden of uncertainty, if we're going to draw a line, be a burden that falls on the police rather than... a burden that falls on the citizen rather than on the police? Why would she make that choice?
Roger J. George, Jr.: My first response is that probable cause has been the line that's drawn on all crimes in this country since 1791. And that is... ought to remain the line because it has worked.
David H. Souter: I realize that. But you were making a different argument when you addressed the possibility of drawing the line differently, your response to that was that may be difficult in some cases, and the burden of that difficulty should not fall on the police. And my question is, assuming a different line were to be drawn, why should the burden fall on the citizen rather than the police? Why shouldn't we simply say, look, if it's going to be... if there's any question about applying this line, we'll assume that the burden of doubt should be for the benefit of the potential arrestee rather than for the benefit of the police?
Roger J. George, Jr.: The answer is, because the difficulty of articulating all the reasons that would be adequate. Now, we can have a--
David H. Souter: But that's the premise of the question. We're assuming that the reasons would be hard to articulate. But assume that we feel there is a need on reasonableness grounds to draw such a line, why isn't the answer to the uncertainty of application the answer that was suggested earlier, and that is if the police are not certain in applying this rule, that they have a right to arrest, they should not arrest, and that's the answer to the uncertainty problem.
Roger J. George, Jr.: --Truthfully, I see no reason, if you're going to go down the road of trying to carve out some other exception to probable cause, that the burden of proof not remain on the government. The burden of proof is... on probable cause is that the police officer has to be able to... there has to be objective facts that would cause probable cause, a specific violation of a specific statute. The Terry stop, we put the burden on the government. If it's burden shifting, if we're going down this road, if this Court should determine that there needs to be a new volume five for the Fourth Amendment jurisprudence and that this is a problem of some moment in the country and needs that remedy, then I can not articulate a reason why we should bury the burden of proof.
Ruth Bader Ginsburg: There's a point, a procedural point, that I'm curious about, this case was begun by the plaintiffs in the state court, and the police officer, police chief and the city removed it to the Federal court, is there a reason why they did that?
Roger J. George, Jr.: I wasn't trial counsel at that time and I do not know the reason. I agree with your earlier question about qualified immunity. I don't believe... I think there is immunity both for the city and for the individuals here as a matter of law. I grant you that the Fifth Circuit did not address that issue. But I think this is a largely academic exercise in here and at this point, I'll reserve the balance of my time for Mr. Taylor, thank you.
William H. Rehnquist: Very well, Mr. George. Mr. Taylor.
Andy Taylor: Mr. Chief Justice, and may it please the Court-- This Court's teachings has been clear that warrantless arrests of traffic offenders based on probable cause is reasonable, and is a reasonable intrusion under the Fourth Amendment. The court has taught us that in Robinson, in Gustafson, in Wren, and in Knowles, because the question from the constitutional perspective is whether or not probable cause to believe an arrest under that local law has occurred, and once that is met, then all the other questions become policy judgments that the 50 states should decide.
John Paul Stevens: Let me suggest this, again, going back to, as you can guess, I'm rather intrigued with the descending standard. Basically the descending standard is, if the decision to make a custodial arrest rather than citation is wholly arbitrary, if there's no plausible reason or articulable reason can be given for it, then it's arbitrary. Now it seems to me that anything is arbitrary cannot be reasonable within the meaning of the Fourth Amendment. Now why am I wrong about that?
Andy Taylor: The reason why that premise is incorrect Justice Stevens is this Court's teachings in Gerstein v. Pew and reaffirmed in County of Riverside v. MacLaughlin, once you have probable cause this Court's teachings have been not only can you engage in a full custodial arrest, but likewise you're entitled for a temporary detention for the purpose of administrating the paperwork so that this individual can be booked and then released once a probable cause determination has been made by a magistrate. This Court has rejected the notion that there must be some second reason based on some mini trial based on the facts presented as to whether or not that decision of that tree to bring into custody is appropriate. All three options to a police officer are reasonable under the Fourth Amendment. The first is to issue a warning, whether it be in writing or oral. Second, to actually arrest and bring into custody, or third to issue a citation instead of actually engaging in a full custodial arrest. This Court has taught us that all three options are equally reasonable under the floor, the minimum guidelines and protections that the Fourth Amendment and the federal constitution give, and then it becomes a matter of policy.
John Paul Stevens: But you're saying there is no standard that constrains the officer's decision on whether or not to give a citation as opposed to make a custodial arrest.
Andy Taylor: There is no constitutional standard, it is a policy judgment Justice Stevens, and the different states have approached it in different ways. As you will note some of the amici here have said that it's appropriate under state law to engage in a full custodial arrest. Indeed, if arguing whether or not the state governmental interest is one that should be given credence by this Court, the state of Texas has spoken in the statute, even though the statute in question, the seat belt offense law does not provide for punishment in the form of jail time. They have likewise determined that it is appropriate to have a full custodial arrest in order to enforce the government's interest in that particular law. Therefore, that jurisdiction has made that policy choice. Those policy choices are subject to political accountability.
Antonin Scalia: That's set forth specifically in the seat belt law?
Andy Taylor: The traffic rules of the road is a certain codification of state law that includes seat belt offenses and there is a statute in Texas on the books that says for any offense in this traffic code, full custodial arrest is appropriate, save two exceptions, one is for speeding, and two is for the open container law which were the results of political judgments made in the local jurisdiction. Other states have decided that in certain circumstances they will allow the issuances of citation rather than a full custodial arrest based on the circumstances presented to that officer, and he has that discretion to make that judgment call. But if he picks wrong in the view of the folks that have to review it later, in other words, we don't think he made the best decision among all of his options, so long as those options are equally reasonable under the Federal Constitution, then that mistake does not drive a constitutional decision of reasonableness because you can't put that in front of the decision. And so, whereas here, the commission of an offense witnessed personally by the police officer gives rise to probable cause then the constitutional inquiry ends and the policy judgments and decisions will begin. And that's why it would be unworkable as this Court in several questions has asked whether or not we can draw lines between fine only and jailable time. In fact, in Welsh v. Wisconsin, one of those offenses in that case was for DWI, but under that jurisdiction's law it was only for jail... for a fine. Similarly, in United States v. Watson, when dealing with the Prohibition cases, that particular, actually... Carroll v. United States, that particular case dealt with bootlegging, and that was a misdemeanor fine only offense. You cannot determine the constitutional question based on the penalty that is associated with a crime, but rather based on whether or not there is an offense for the specific facts that have occurred. If we let the penalty--
Antonin Scalia: I suppose that misdemeanor violators, traffic violators, seat belt and all that stuff, french fries eaters, unlike felons, they're probably not a discreet and into a minority, are they?
Andy Taylor: --That's correct.
Antonin Scalia: I mean they're a lot of them out there. I myself have never been guilty of any misdemeanors. But I am told that there are a lot of people out there. And so you can probably expect the political system to be able to protect that category a lot better than you can expect them to protect felons. Is this sheriff still in office, do you know?
Andy Taylor: To my knowledge--
Antonin Scalia: When you say he's been dismissed, I assume that means he's been dismissed from the case.
Andy Taylor: --I meant the former and not the latter. But the point is, Justice Scalia, your question demonstrates that these decisions well, under these circumstances what's the best policy choice is just that, a policy choice and not part of the constitutional rubric of the Fourth Amendment. Those extra protections are for the state's to decide. But the minimum guarantees of liberty in the Fourth Amendment are for this Court to decide, and I would submit that this Court has made it very clear that the decision must be pledged and looked to in terms of probable cause.
Ruth Bader Ginsburg: Mr. Taylor, do you know why local officials took this case out of the hands of Texas courts and put it in the hands of Federal court?
Andy Taylor: I do not, Your Honor, and the record does not indicate why. One hypothetical suggestion could simply be that the Federal courts would be well equipped to know the differences between the Federal constitutional floor and the policy ceiling lights that the states may accord on situations such as this. But clearly whereas here probable cause existed, then there was no constitutional infirmity, and this Court has rejected time and time again in Berkimer, and in United States v. Robinson and other cases, that we cannot allow the punishment rather than the conduct to give rise to the constitutional infirmity or lack thereof, because otherwise we're going to have conduct which in one state will result in an unconstitutional situation, and in other state a constitutional one. And we cannot have a rule which differs all fifty jurisdictions.
David H. Souter: Well you have that now on the felony/misdemeanor distinction. Felonies differ, some states classify them as misdemeanors, some classify certain offenses as felonies. It depends... on your theory, that would make a difference in whether there could be an arrest without a warrant.
Andy Taylor: Justice Souter, no, the fact that you do not draw a line is why it doesn't matter whether they're felonies or misdemeanors or--
David H. Souter: You draw a line on the warrant requirement, I assume you accede to that.
Andy Taylor: --Yes--
David H. Souter: Sure.
Andy Taylor: --you would have to have a warrant, absent probable cause.
David H. Souter: So you've got... so you've got a variation from state to state, even under the scheme that you would advocate.
Andy Taylor: Well, even where a warrant may be desired this Court has not stated as a matter of Fourth Amendment principles that a warrant is required in all circumstances, Gerstein says an on the scene assessment by a police officer of probable cause is enough under our constitutional interpretations of the Fourth Amendment. And then it would be--
David H. Souter: If the officer is not... the point is that when an arrest is made for an offense that is not committed in the officer's presence, then a warrant is going to be required depending on the gravity of the offense, and I presume that is true under the system that you advocate.
Andy Taylor: --Yes, in certain circumstances a warrantless arrest would not be appropriate because there's not probable cause. But that's the touchstone. If there's probable cause, then the arrest is appropriate in all circumstances. In Wren v. United States, this unanimous Court held that the balancing test of the government and the individual is when a probable cause exists always tipped in the constitutional scale for the government. And then only in extraordinary circumstances like warrantless intrusions into homes or serious bodily injure or deadly force do we then have any additional concerns. In Knowles v. Iowa this Court made clear that what carried the day in that case was that they hadn't actually arrested the individual. I understand Mr. Chief Justice my time is up.
William H. Rehnquist: Correct. Thank you. Mr. De Carli, you have three minutes remaining.
Robert C. De Carli: Mr. Chief Justice, may it please the Court-- What is interesting about this case as some members of this Court have pointed out, is respondents do not defend the reasonableness of the conduct of the officer in question here, instead they attack the workability of potential rules and raise... and allege that this is not a recurring problem. Two points... well, a third point also they characterize decisions of this Court far beyond their holdings. The first point, the reoccurrence problem, since certiorari has been taken by this case and I know this is anecdotal, we have received call after call of problems of this sort and to limit it to publically reported incidents, just within the past month, before this argument, a DPS officer arrested a passenger in a vehicle, the passenger was a 17-year-old boy with his mother, and that boy then... the officer asked the boy, do you have ID? Well that boy lived in a small town that did not have driver's ed. He had no driver's license, so that was then used as a justification for arrest. The arrest presumably would be one that would not be treated as a brief one. He spent the night in jail in a holding cell with crack dealers and people accused of violent crimes. I submit that it is a recurring problem and perhaps more on point, if the conduct in this case is condoned, it will be much more likely to be a recurring problem. Secondly, boundaries, Judge Weiner's boundary as some members of the Court have suggested is just as workable as the Terry boundary. It's not going to require a new volume of any treatise... for one thing it's already a couple pages in Blackstone, which has been around for some time. It's just going to be a footnote. But under either standard, no matter what the standard is, if it's reliance on the probable cause, or, excuse me, reliance on the common law rule or a balancing of the competing interests or any of the rules proposed by petitioners amici, petitioners win. This was unreasonable. And that leads to the fact that again they have offered no explanation for why this arrest furthered any legitimate law enforcement interest. Finally, probable cause as the touchstone, I have not, I admit I have not read every Fourth Amendment decision that this Court has written. However, I have never come across a decision saying that probable cause and not reasonableness is the touchstone of the Fourth Amendment. And no decisions have held that anything other than a public felony arrest... thank you.
William H. Rehnquist: Thank you, Mr. De Carli, the case is submitted.