§ 9.03 Custodial Arrests for Minor Offenses

JurisdictionNorth Carolina
§ 9.03 Custodial Arrests for Minor Offenses13

As noted above, an arrest traditionally involves taking an individual into custody, rather than merely issuing a citation at the scene and requiring that person to appear in court on the charge at a later date. Citations are usually used for very minor criminal offenses and so-called "civil" offenses (e.g., ordinary motor vehicle code provisions), which typically involve a monetary fine but no term of imprisonment. But does it violate the Fourth Amendment for a state or local community to authorize police officers to take a person into custody (and not simply issue a citation), based on probable cause to believe that the individual has violated a minor, fine-only offense?

In Atwater v. Lago Vista,14 the Supreme Court held, 5-4, that the Fourth Amendment does not forbid the police from making custodial arrests, rather than issuing citations, if they have probable cause to believe that the person has committed an offense, even an exceedingly minor one — in this case, a seat belt violation punishable by a small fine.

Atwater involved a remarkable set of facts, some of which are not found in Justice David Souter's majority opinion, but instead are gleaned from Justice Sandra Day O'Connor's dissent and from the Circuit Court opinions below.15 Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her three-year-old son and five-year-old daughter. Neither she nor her children had their seat belts on, which violated a motor vehicle ordinance.

Lago Vista officer Bart Turek, who had previously stopped Atwater because he had believed (incorrectly) that Atwater's son had not been seat-belted, again stopped Atwater, yelled at her, and told her she was under arrest and would be taken into custody (although he had the discretion to issue a traffic citation and let her go). He refused Atwater's request that she be permitted to leave her children with a neighbor before being taken to jail.16 Turek then handcuffed Atwater, placed her in his police vehicle, and drove her to the police station (ironically, without securing her seat belt), where she was required to remove her shoes, eyeglasses, and jewelry, and empty her pockets. She was photographed and placed in a jail cell for approximately an hour, after which she was taken before a magistrate and released on bond. (Atwater later paid a $50 fine for the seat belt violations.)

Why did Officer Turek's conduct not constitute an unreasonable seizure of Gail Atwater? The answer to this question must start with Justice Souter's remarkable concession:

If we were to

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