26 July 2005

As much as I hate to disagree with Steve, the fact that Judge Roberts has followed in the footsteps of an absolutely atrocious opinion by Justice Souter in Atwater (police can arrest you for any legal violation, such as not wearing a seatbelt, even if the law doesn't allow an arrest for the violation), is not a point in his favor.

Finding a way to distinguish it - Now, that would have been impressive.

Just remember folks, thanks to Justice Souter it's constitutional to arrest you upon actions for which you cannot be arrested.


carpundit said...


I'm not sure I understand your characterization of Atwater. I just read the majority opinion (thanks for the link), and remain confused.

In that case, Ms. Atwater was arrested in Texas for a seatbelt violation (a fine-only misdemeanor in Texas), as allowed under Texas law. So, there, no one was arrested as you say "even if the law doesn't allow an arrest...." The law did allow for it.

Beyond that case, the Atwater decision said a probable cause arrest for any offense does not violate the Fourth Amendment. ("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.")

So I don't see in it the holding that "police can arrest you for any legal violation, such as not wearing a seatbelt, even if the law doesn't allow an arrest for the violation."

Please explain what I'm missing.


Mister DA said...

I think Ken is expressing an opinion shared by a number of my collegues on the defense side of things that if incarceration is not allowed as a punishment for the offense, then neither should custodial arrest be allowed. In my state the zero jail offenses tend to be minor in possession of alcohol or tobacco cases.

The thing is, just because a court can't lock you up on conviction, it doesn't mean you can't be held pending a bond hearing or identification. Nor, for that matter, does the fact of an arrest mean you are automatically going to jail for the night.

Following an arrest based on probable cause, once the officer has identified you to his satisfaction, and determined you are not in possession of illegal weapons or other itmes, he (or she) is free (depending on the State) take a cash bond, issue a citation with an order to appear, or just cut you lose entirely.

carpundit said...

Mister DA,

Thanks for clarifying. If the thesis is that the law should not allow custodial arrest for non-jailable offenses, I might even agree. But that is very different from claiming that the law does not allow such arrests.

Plainly enough, it does in many places. And Atwater merely said that's OK as a Constitutional matter.