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The Fourth Amendment guarantees the right to be free from “unreasonable searches and seizures.” Gail Atwater did not have the benefit of the Fourth Amendment approximately four years ago when her automobile was pulled over by the police. She was handcuffed and placed in the back seat of a police car, then taken to jail — for not wearing a seatbelt and not buckling up her two children who sat with her in the front seat. While many Americans find custodial arrest for not wearing a seatbelt absurd, that’s not how the majority of the U.S. Supreme Court justices saw it. The Court’s April decision in Atwater v. City of Lago Vista was very close, 5 to 4. The majority of the justices decided that the custodial arrest of Atwater was constitutional. This decision validates state legislative acts that give police the right to arrest for minor traffic offenses and fine-only misdemeanors. In my opinion, such legislation has always been unconstitutional. Further, these laws have rarely been used, since municipal and state governments were not confident that arrests based on them would pass constitutional muster in the courts. As Justice Sandra Day O’Connor wrote in her dissent, the arrest of Gail Atwater was a “pointless indignity” that served no discernible state interest and was not “constitutionally permissible.” In other words, she argued, it was not reasonable within the terms of the Fourth Amendment to handcuff Atwater and haul her off to jail for failing to buckle up. Perhaps more distressing than the power that the decision gives police to act in a manner that is arbitrary is the power it gives them to act in a manner that is racist. As Justice O’Connor pointed out in her dissent, “Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.” That is, although Atwater herself is white, the Atwater decision elevates the effects of racial profiling up one notch. The connection is that a rule of law that allows police officers to take people into custody for the most minor of offenses will perpetuate the problem of racially discriminatory policing. We already have a situation in the United States where some police officers stop drivers and walkers because of their race or ethnicity. And where a white citizen might be told to slow down or given a warning, a black citizen could be verbally abused or given a ticket. Now, with Atwater on their side, racist police officers can choose to take blacks, Latinos, and other nonwhites into custody and never be required to provide any articulable reason why they choose that course of action over simply giving a citation. When the Court addressed racial profiling in Whren v. United States (1996), it held that the subjective motivations of an officer in making a traffic stop are irrelevant, so long as the officer can show that he pulled over the driver for a bona fide traffic offense (i.e., that the officer had probable cause). Even if the officer is thinking, “I don’t like Mexicans, and every opportunity I have I will pull over Mexicans and cite them with the offense carrying the maximum penalty,” so long as actual probable cause exists, the arrest is legal. Whren by itself is a formidable obstacle to ending racially discriminatory traffic and pedestrian stops. Now, Atwater only serves to compound matters further. If an officer is operating from a racially prejudiced mindset, not only might he exclusively stop blacks or Latinos, but he might also target blacks and Latinos for maximum penalties. The officer essentially has the power to abuse his discretion by applying different standards for minorities and whites. As an illustration of what already goes on, consider that a Los Angeles sheriff’s deputy admitted to a New York Times Magazine writer that during stops he lets white drivers stay in their automobiles, but makes blacks exit their cars and spread their arms and legs for a pat-down. And — amazingly — the officer may not be breaking the law, since the Supreme Court’s decision in Maryland v. Wilson (1997) provides the officer with the power — but not the requirement — to make drivers and passengers exit their vehicles. Moreover, Atwater actually encourages pretextual traffic stops, which is to say, stops in which the police officer will pull over drivers not because of the traffic violation, but because the officer wants to take the driver to jail. The intermediate step of looking for and finding a serious crime to justify taking the driver into custody is no longer necessary in any jurisdiction that does not prohibit officers from making custodial arrests for minor offenses. By taking the driver into custody, the officer gets to search just about everything in the automobile: He gets to do a full body search and a full records check of the driver, and to take a picture and prints from the driver. Essentially, the officer gets to do everything that, before Atwater, the officer would have needed independent probable cause in order to achieve. In short, Whren and Atwater, taken together, allow a racist police officer to act within the bounds of the Fourth Amendment (as now construed by a majority of the Court) when that officer’s subjective state of mind in deciding to make an arrest is racially motivated. TRAFFIC PENALTIES And, of course, a police officer can always find a reason to pull over a driver. Everyone violates a traffic law at some point. As I learned while in the police academy, if you follow a vehicle long enough, the driver will do something wrong. It could be straddling the yellow line or driving below the speed limit. It’s very hard to drive for even a few blocks without violating the traffic code. Whether for an offense such as improper placement of stickers on a license plate or failing to use a turn signal, victims of post- Atwater policing will suffer. Along the lines that Justice O’Connor described in her dissent, they will have their physical movement being restrained by handcuffs or leg irons, and they will be locked in a cell. Their personal property will be taken from them along with their shoes. They must have a “mug shot” taken of them and, in some jurisdictions, be strip-searched. They may be jailed for up to 48 hours before a magistrate determines whether the officer had probable cause for the arrest. Cellblock personnel can use their discretion to leave the arrested people handcuffed behind their back for that time, or deprive them of sleep and lavatory facilities under a guise of administrative or safety concerns. And the “detention period is potentially dangerous since in some places violent and nonviolent offenders are housed together,” as O’Connor wrote. Also, the coming Atwater arrestees will receive arrest records that will become a permanent part of the public record. When they apply for jobs, fill out rental applications, apply for college financial aid, etc., they will be required to report the arrest. Even if it was a “mistaken arrest,” the citizen risks denial of employment or services. And expunging arrests from the record is no easy matter. The reality is that a custodial arrest exacts a heavy toll on an individual’s liberty, privacy, and emotional stability. Gail Atwater should not have been taken into custody. Her arrest illustrates the potential for abuse when an officer is given carte blanche powers. Sadly, such unfettered freedom only exacerbates the problem of racial profiling that we all need to bring to a stop. Christopher Cooper, an associate professor of sociology at St. Xavier University in Chicago, is a lawyer and a former policeman.

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