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The Fourth Amendment requires that police officers must have some level of suspicion that a person has committed, or is about to commit, a crime, before they can seize him. Thousands of cases have been argued over what kind of knowledge the police must have to justify searches and seizures. But the general principle — that no intrusion is valid without some suspicion of criminality — remains bedrock Fourth Amendment law. A longstanding crack in this bedrock is the 1990 case of Michigan Department of State Police v. Sitz, [FOOTNOTE 1] which permitted police to stop and briefly detain motorists at nondiscriminatory, suspicionless highway checkpoints, to see whether the driver was intoxicated. The Sitz Court’s decision was based on the belief that roadblocks to spot drunk drivers address a specific societal problem that presents a “special need” that goes beyond basic law enforcement. In Sitz, the “special need” was to get drunk drivers off the road, lest they injure someone before they have committed an infraction obvious enough to give police the requisite cause to pull them over. During the past decade, several jurisdictions have expanded Sitz by allowing police to set up suspicionless roadblocks to check cars and drivers for illegal drugs. Until now, the U.S. Supreme Court remained silent about these drug checkpoints. This term, in City of Indianapolis v. Edmond, [FOOTNOTE 2] the Court held that drug checkpoints violate the Fourth Amendment. The 6-3 majority held that drug checkpoints have no purpose other than to allow officers to gather evidence for criminal prosecutions. Because general enforcement of criminal laws, such as the laws prohibiting drug possession, are not a “special need,” they cannot be justified under the exception the Court created for drunk driving. Writing for the majority, Justice Sandra Day O’Connor held, “We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” [FOOTNOTE 3] Edmond will have an immediate practical impact on law enforcement. Highway narcotics checkpoints have become a routine part of the landscape in many states. They will now have to stop. POTENTIAL IMPACT OF ‘ATWATER’ The ultimate significance of Edmond, however, as well as that of many previous cases involving automobile stops, could be undermined by Atwater v. City of Lago Vista, [FOOTNOTE 4] a case that may give the police far broader power over cars and drivers than ever before. For a case that may have a revolutionary impact on constitutional criminal procedure, Atwater has surprisingly modest origins. It is a civil case arising out of a seat belt violation. Texas law makes the failure to wear a front seat belt a misdemeanor punishable by a maximum fine of $50. Imprisonment is not a possible penalty. Texas law, like that of many states, also explicitly permits police officers to make warrantless arrests for misdemeanors. Atwater began when Gail Atwater, a mother with no criminal record, was driving her truck in Lago Vista, Texas. Her two young children were in the front seat. Neither was wearing a seat belt. Officer Bart Turek pulled her over, approached her car and yelled, “We’ve met before” and “You’re going to jail.” He refused to allow Atwater to take her children to a neighbor’s house and refused to issue a traffic citation. Instead, he handcuffed her, placed her in his patrol car and took her to the police station. There she was booked, her belongings were searched and she was locked in a cell for an hour. She was then taken before a magistrate, who set bail at $310, more than six times the maximum sentence if she was convicted. The U.S. Supreme Court, which ultimately ruled against Atwater on the constitutional issue, described the scene by noting that “the physical incidents of the arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment. Atwater’s claim to live free from pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.” [FOOTNOTE 5] Atwater ultimately pleaded no contest to the seat belt charge and filed a federal civil rights suit against the city and the police officer, alleging that her treatment violated Fourth Amendment guarantees against unreasonable search and seizure of her person. The U.S. district court and the 5th U.S. Court Circuit Court of Appeals both ruled for the city. The Supreme Court granted certiorari. The 5-4 majority relied on a long line of cases dating back to British and colonial common law that give police the authority to make custodial misdemeanor arrests without differentiating between arrests for jailable and nonjailable offenses. The majority held that state legislatures are free to pass laws prohibiting full custodial arrests for nonjailable crimes, but the U.S. Constitution, as reflected by the intent of the framers, does not require such a prohibition. The majority also made two modern policy arguments. It asserted that although police conduct in this case was outrageous, “we have traditionally recognized that a responsible Fourth Amendment balance is not served by standards requiring sensitive case-by-case determinations of government need….” [FOOTNOTE 6] It is surprising to hear such a rationale from a Court that has repeatedly rejected bright-line tests in favor of “totality of the circumstances” analysis in Fourth Amendment cases. The majority may be the only five people in the nation involved in the criminal justice system who do not recognize that the standard they now purport to reject is precisely the one they have imposed on virtually all other Fourth Amendment cases. A POINTED DISSENT The four dissenters argued that since the Fourth Amendment explicitly protects against “unreasonable searches and seizures,” and everyone agrees that Turek’s arrest of Atwater was unreasonable, the arrest violated the Fourth Amendment. The dissenters advocated a standard that would allow police to make full arrests for all offenses where jail is possible, but “when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is able to point to specific and articulable facts which … reasonably warrant … a full custodial arrest.” [FOOTNOTE 7] The majority rejected this standard, reasoning that “an officer on the street might not be able to tell” the difference between jailable and nonjailable offenses. In this fashion, the majority justifies giving police officers enormous power to infringe on personal liberty by assuming that those same officers are too stupid to learn the basic information needed to limit that power. As the dissenters recognize, Atwater’s real danger is that when viewed in the context of the automobile search jurisprudence developed by the Burger and Rehnquist Courts, it may be used to permit the police to do virtually anything to cars and their occupants. For example, the Court has already held that police may stop a car for a traffic infraction even if the stop is merely a pretext for getting an otherwise illegal look at the driver and the car. Whren v. U.S. [FOOTNOTE 8] Together, Atwater and Whren can lead to an avalanche of further intrusions on drivers’ privacy and liberty. For example, suppose that police officers would like to stop a driver to see if there are drugs in the car. The police do not, however, have any probable cause on which to base a stop. The lack of cause is no longer a problem. The officers can follow the driver until they see (or claim to see) him change lanes without signaling. They may now make a full custodial arrest, handcuff the driver, search the entire car and driver, take the driver to the police station, strip search him, hold him in custody for up to 48 hours and set bail in an amount at least six times the maximum fine for the traffic infraction — all for an offense that cannot be punished by more than a $50 fine. There are three key questions for the future of Atwater: � How will state legislatures respond to the challenge posed by the majority? Although it is rare that state houses will go out of their way to reject Supreme Court decisions, Atwater is one of the few rulings to receive widespread and almost unanimous condemnation in the press, so the possibility of legislative action is not out of the question. � Will state courts hold that their state constitutions afford more protection in this area than the Supreme Court has attributed to the federal Constitution? � Will the defense bar be able to devise strategies for individual cases that will persuade trial and appellate courts that at some point in the parade, the potential consequences of Atwater go so far beyond acceptable police behavior that the Fourth Amendment is violated? THE THERMAL-IMAGING CASE In another Fourth Amendment case, the Court addressed — and limited — a new trend in police use of scientific equipment. In Kyllo v. U.S., [FOOTNOTE 9] officers lacking probable cause to search the home of a person they suspected of growing marijuana used a thermal-imaging device to scan the outside walls of Danny Lee Kyllo’s home. The scan showed that the garage roof and a side wall were hotter than the rest of the home, and significantly warmer than the neighboring units. This suggested to the police that those areas were being used for growing marijuana under heat lamps. The officers used this information as the partial basis for obtaining a warrant to search the house, where they found marijuana plants. The lower courts upheld the use of the thermal-imaging equipment, primarily because the device only measured heat that was escaping from the outside of the home, and did not expose any private details of what might be going on inside the home. In short, they found that Kyllo manifested neither a subjective nor an objective expectation of privacy in the heat waves that might be protected by the Fourth Amendment. Justice Antonin Scalia, writing for the majority, reversed. Citing the traditionally greater protection given by the Fourth Amendment against searches of the home, the Court established the following test: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” [FOOTNOTE 10] Ira Mickenberg is an appellate defense attorney who practices in Saratoga Springs, N.Y. ::::FOOTNOTES:::: FN1 496 U.S. 444 (1990). FN2 121 S. Ct. 447 (2000). FN3 121 S. Ct. at 455. FN4 121 S. Ct. 1536 (2001). FN5 Id. at 1553. FN6 Id. at 155. FN7 Id. at 1563-64. FN8 517 U.S. 806 (1996). FN9 121 S. Ct. 2038 (2001). FN10 Id. at 2046.

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