27 July 2005

CarPundit and Mr. DA were commenting on my last post about how Atwater allows people who cannot be arrested to be arrested.

The question in Atwater was "whether the 4th Amendment forbids a warrantless arrest for a minor traffic offense, such as a misdemeanor seatbelt violation punishable only by a fine."

The court's answer: "We hold that it does not."

Now, CarPundit astutely points out that the rationale for this decision is not as broad as the holding. The rationale is that under the common law breach of peace misdemeanor arrests were allowed without warrants, as well as those arrests allowed under statutes passed by legislatures. Therefore, when Texas Code § 543.001 allows arrests for any violation of the Transportation Code it does not violate the Constitution.

I say again, the rationale is not as broad as the holding. Basically, this holds constitutional any arrest for any traffic offense and, through analogy, any other misdemeanor.

The court states that these are areas better left to States to legislate and cites statutes such as Va. Code §46.2—936 as proof that this is not a problem of constitutional magnitude. This section is, for lack of a better term, a catch and release statute. It requires that an officer to act in a specific manner:
Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title [Motor Vehicles] punishable as a misdemeanor, the arresting officer shall . . . take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice.
The problem is that, at least in Virginia, this law is unenforceable. A blatant violation of this statute - such as bringing someone in for a weekend in jail for having tinted windows - has no remedy. Understand that without a remedy written into the statute no procedural law in Virginia really carries much weight short of the federal constitutional boundaries. There is no such thing as exclusion of evidence for violation of laws or rights under the Virginia Constitution (of course, this matters to me more than the 1983 action in Atwater). Along the lines of Whren, it is an excuse for allowing a shakedown. I've discussed this previously here.

But surely, an officer wouldn't violate the law. Yeah, right.1

The case on point in Virginia will be Moore v. Commonwealth. In Moore the officer made an illegal arrest leading to discovery of evidence of a more serious crime. The officer was required to issue a summons and release the defendant under Va. § 19.2-74(A)(1); instead, he expanded the detention into a full custodial arrest and performed a search subsequent to the arrest. The judge refused to throw the evidence out, explicitly citing Atwater.

A three judge panel overturned the conviction based upon Knowles v. Iowa, 525 U.S. 113 (1998)(citation is not enough to allow a search). Yasmeen discussed this here and here. However, the Court of Appeals has agreed to hear this en banc and whenever it does this in a case which favored the defendant the smart money is on a reversal of the three court panel. The real question might be how the Virginia Supreme Court handles this situation.

1 I say again, as I have said before, I don't lay this at the feet of the officers. Officers are trained to do their utmost to bring law-breakers to justice. The courts and legislatures determine how far the officers can go. The legislature here says officers can only go so far. The courts tell them they can go further and the courts are the ones who interpret and enforce the law. I've no gripes with an officer who does what the court tells him he can do.


carpundit said...


Thanks for the thoughtful response. I understand that in Virginia an officer is not legally allowed to arrest for, say, tinted windows. Your point, as I understand it, is that after Atwater, there is no remedy if the officer does make that arrest.

That may be true, but it is not the same as making the arrest lawful. It is still unlawful, it's just that there's no remedy. (What about criminal charges against the officer for unlawful confinement?) Scant comfort to the unlawfully arrested, but there it is.

Also, I'm not sure the holding is as strong and clear as you think. I see tension in the holding, specifically at the end of section III and the start of section IV, here (emphasis added):

"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.


Atwater’s arrest satisfied constitutional requirements. There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. ...Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater’s arrest was in some sense necessary."

"Not required, but authorized" must be a reference to Texas state law. I think Atwater stands for the proposition that the Fourth Amendment will not invalidate state law statutory schemes that allow arrests for minor violations.

If there's no remedy in Virginia, I think you have a local problem, not a Constitutional one.


Tom McKenna said...

Carpundit is right, the remedy for a breach of the Virginia statute is a civil action for unlawful arrest, a section 1983 claim, perhaps, or a plain old suit for assault-- the officer was not authorized to apprehend me.

Unfortunately, but understandably, the defense bar can't get around the fact that something can be improper and not result in exclusion. The "exclusionary rule" after all, was designed to be a very limited rule to supposedly enforce the 4th amendment. Just because a statute is violated does not mean the fourth amendment is violated.

Defense attorneys of course want to keep relevant evidence away from the jury or judge. The exclusionary rule does this, so the defense attorneys want to expand its use as much as possible.

Exclusion is a judicially created remedy, however, NOT a requirement of the constitution, and hence, if the courts wish not to extend it beyond strictly 4th amendment violations, that is perfectly within their right. Indeed it is sensible, since the whole idea of exclusion undercuts the entire notion of a trial, which is to find the truth. Exclusion, which thwarts that effort, should be disfavored except in an actual fourth amendment context. (even there, I would argue, exclusion is a silly concept which punishes society by letting criminals go free because a constable blundered-- but that's an argument for another day).

Ken Lammers said...


Gotta admit, I like the way you think.

Ever thought of moving to Virginia, participating in about 10-12 years of Republican politics and then getting a Delegate you helped to get elected to get you on the bench?

Seriously, I think that you have a narrow reading of Atwater pegged, while I think it will be interpreted as the Supreme Court washing its hand of procedure in all misdemeanor arrests. Both readings are probably viable. I may be wrong. In fact, I hope I am wrong and I await the Moore ruling with mixed anticipation and dread.

Ken Lammers said...


Not fair to bait me on my own blog. ;-)

We all know that the "remedies" you offer (along with numerous others I've heard) are jokes. They are the (thin) smoke screen offered by those who do not want to force police to be accountable to the law and constitution. In fact, I think the remedy offered under the law here is to have the officer fired. 46.2-396. We all know that's not going to happen. The rationale for not applying a workable remedy seems to break down to: The good guys should be allowed to break the law to get the bad guys, who are actually breaking the law.

Admittedly, exclusion, in an individual case is about winning the case for my client but that is an extremely short range view of this remedy. The only remedy which has ever worked to force the government to follow the law and constitution has been exclusion. And, in the long run we have a very strong interest in making the government obey the laws.

If you can provide examples of the other proffered remedies working feel free to provide examples. In fact, pleeeaase provide me with examples.

Tom McKenna said...

Well, Ken, you assume that that it is more important to punish the police than to use the relevant evidence they find. I disagree. I think whatever the merits of the police activity, the defendant should not be rewarded by exclusion of relevant evidence of his guilt.

I am in fact very open to the idea of administratively punishing police for DELIBERATE, KNOWING violations of clearly recognized 4th Amendment protections. E.g., suspend the offending officer without pay for one or two weeks; 2d time: a month; 3d time: fire him. Believe me, hitting an already underpaid officer in the pocketbook is more of an eye-opener than supressing evidence, which doesn't really affect the officer at all.

Windypundit said...

I think I understand what Tom is saying: The solution to bad cop behavior is not to allow the criminals to get away unpunished, it's to punish the cops as well.

I rather like the exclusionary rule myself, but this tradeoff makes a lot of sense to me. I say let's do it!

I'm not sure how to get the courts to make the exclusionary rule go away, so let's let the police go first.

Tom's idea of administrative punishment should be real easy to implement since there is already a process in place for commanders to suspend misbehaving police officers. I'm sure once the advantages of this system are explained to the police departments, they will be eager to cooperate.

In fact, once the individual police officers take a few hits from this, they'll probably start behaving much better and the courts will stop throwing out so much evidence because so little of it will be tainted. Even if the exclusionary rule is never actually undone, it will be applied far less often. That will make prosecutors happy.

And if that doesn't solve the problem, perhaps some of these prosecutors who are so concerned about police misbehavior could start bringing up the cops on trespassing and assault charges.

It all sounds so great, it's a wonder it hasn't happened already.

Ken Lammers said...


Actually, the exclusionary rule doesn't punish the officers. It merely keeps the evidence out. It is then up to the police force how to act. Admittedly, I am not up on everything happening in the internal workings of the local police agencies, but I've never heard of anyone being punished because something was excluded. That's usually blamed on us evil defense attorneys and "technicalities."

Yes, punishing the officer would work. However, it isn't realistic to expect it to happen. If Officer Smith stops a random car to search it, just because he is bored, and finds a trunk full of marijuana he isn't going to be punished. For one thing, if it wasn't something which was argued about in court (being irrelevant to actual possession and non-supressable) how would anyone know it was an unconstitutional search? For another, how many police forces are going to turn on officers who are delivering results?

Well, I'd like to keep discussing but I'm off to Amelia.

123txpublicdefender123 said...

Tom, the beauty of the exclusionary rule is that it eliminates--or, at least, reduces--the incentive for officers to violate the Constitution. If they won't be able to use the illegally obtained evidence, then they are less likely to break the law to obtain the evidence in the first place. The exclusionary rule doesn't "reward" criminals. Rather, it serves as a deterrent to government officials to violate the Consitution in the first place.

Texas has its own, much broader, statutory exclusionary rule. Any evidence obtained illegally is inadmissible. This includes constitutional and statutory violations, including penal code violations. It also applies to private citizens and government actors. So, for example, if my neighbor John Doe thought I was dealing drugs out of my house, and he broke into my house to take pictures of the drugs, scales, money, and guns in my home, and then turned that information over to the police, all that evidence would be inadmissible because it was obtained in violation of the laws against burglary and criminal trespass.

Tom McKenna said...

You know, I don't have a problem if a state like Texas wants to make the democratic judgment through its legislature to exclude evidence. At least then society has a say as to whether they want to deter the police more than they want a marginal number of criminals to walk.

What I find problematic is the SCOTUS imposing that remedy not just on the federal system but nationwide. It is certainly a debatable proposition whether the benefits of exclusion outweigh the social costs. At the least, the rule runs counter to the stated purpose of a trial, which is to determine the facts. When material and relevant facts are omitted, that function is impaired.

Somehow they get along without this rule in most western countries. I think we could too, by having independent panels review contested searches and administratively punishing officers with suspension for vioaltions, in addition to any other penalties the law provides for their actions. Funny, I wonder why the defense bar would not support that? Couldn't be that their devotion to the exclusionary rule has more to do with winning cases than with vindicating the 4th amendment?

markm said...

Tom, how many police officers have you prosecuted for violating the law?

Windypundit said...

Tom, are you saying that the reason the police and prosecutors don't punish cops for breaking the law during searches is because the defense bar doesn't want them to? Or are you saying that law-breaking cops should continue to be let off until the defense bar gives up something? 'Cause I'm pretty sure the defense bar wouldn't mind if some law-breaking cops got punished...except, of course, when they were retained to defend those cops.

Tom McKenna said...

What I'm saying is simply this: there are other viable ways to deter police violations of the 4th amendment than by excluding evidence. That remedy has the effect of punishing society, which has to see the guilty walk, more than the police, who really aren't affected by suppression of evidence beyond dissapointment at losing a case.

My idea would put some teeth into the police deterrent while not rewarding the criminal by excluding relevant evidence from his trial. Unlike criminal prosecution of the police, the administrative punishment would be much more likely to be enforced, esp. if administered by an independent panel to which complaints could be referred by any interested party, including a defense attorney.