Online law articles

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.