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2.18: Chapter 19 - Seizures and Arrests

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    In this chapter, we consider the Court’s definition of “seizure” for Fourth Amendment purposes. The common meaning of “seizure”—to take possession of a thing or person by force or by legal process—provides some insight to the term’s meaning in constitutional law. But as is true for other terms of art, such as “search,” the dictionary definition is not identical to the doctrinal meaning. We also consider when police may conduct arrests.

    What Is a Seizure?

    Just as something cannot be an “unreasonable search” without being a “search,” something cannot be an “unreasonable seizure” without being a “seizure.” Arrests are easily deemed “seizures” of the persons arrested. A variety of less invasive police tactics, however, have required more subtle analysis.

    Supreme Court of the United States

    United States v. Sylvia L. Mendenhall

    Decided May 27, 1980 – 446 U.S. 544

    Mr. Justice STEWART announced the judgment of the Court and delivered an opinion, in which Mr. Justice REHNQUIST joined.1

    The respondent was brought to trial in the United States District Court for the Eastern District of Michigan on a charge of possessing heroin with intent to distribute it. She moved to suppress the introduction at trial of the heroin as evidence against her on the ground that it had been acquired from her through an unconstitutional search and seizure by agents of the Drug Enforcement Administration (DEA). The District Court denied the respondent’s motion, and she was convicted after a trial upon stipulated facts. The Court of Appeals reversed. We granted certiorari.


    At the hearing in the trial court on the respondent’s motion to suppress, it was established how the heroin she was charged with possessing had been obtained from her. The respondent arrived at the Detroit Metropolitan Airport on a commercial airline flight from Los Angeles early in the morning on February 10, 1976. As she disembarked from the airplane, she was observed by two agents of the DEA, who were present at the airport for the purpose of detecting unlawful traffic in narcotics. After observing the respondent’s conduct, which appeared to the agents to be characteristic of persons unlawfully carrying narcotics, the agents approached her as she was walking through the concourse, identified themselves as federal agents, and asked to see her identification and airline ticket. The respondent produced her driver’s license, which was in the name of Sylvia Mendenhall, and, in answer to a question of one of the agents, stated that she resided at the address appearing on the license. The airline ticket was issued in the name of “Annette Ford.” When asked why the ticket bore a name different from her own, the respondent stated that she “just felt like using that name.” In response to a further question, the respondent indicated that she had been in California only two days. Agent Anderson then specifically identified himself as a federal narcotics agent and, according to his testimony, the respondent “became quite shaken, extremely nervous. She had a hard time speaking.”

    After returning the airline ticket and driver’s license to her, Agent Anderson asked the respondent if she would accompany him to the airport DEA office for further questions. She did so, although the record does not indicate a verbal response to the request. The office, which was located up one flight of stairs about 50 feet from where the respondent had first been approached, consisted of a reception area adjoined by three other rooms. At the office the agent asked the respondent if she would allow a search of her person and handbag and told her that she had the right to decline the search if she desired. She responded: “Go ahead.” She then handed Agent Anderson her purse, which contained a receipt for an airline ticket that had been issued to “F. Bush” three days earlier for a flight from Pittsburgh through Chicago to Los Angeles. The agent asked whether this was the ticket that she had used for her flight to California, and the respondent stated that it was.

    A female police officer then arrived to conduct the search of the respondent’s person. She asked the agents if the respondent had consented to be searched. The agents said that she had, and the respondent followed the policewoman into a private room. There the policewoman again asked the respondent if she consented to the search, and the respondent replied that she did. The policewoman explained that the search would require that the respondent remove her clothing. The respondent stated that she had a plane to catch and was assured by the policewoman that if she were carrying no narcotics, there would be no problem. The respondent then began to disrobe without further comment. As the respondent removed her clothing, she took from her undergarments two small packages, one of which appeared to contain heroin, and handed both to the policewoman. The agents then arrested the respondent for possessing heroin.


    Here the Government concedes that its agents had neither a warrant nor probable cause to believe that the respondent was carrying narcotics when the agents conducted a search of the respondent’s person. It is the Government’s position, however, that the search was conducted pursuant to the respondent’s consent, and thus was excepted from the requirements of both a warrant and probable cause. Evidently, the Court of Appeals concluded that the respondent’s apparent consent to the search was in fact not voluntarily given and was in any event the product of earlier official conduct violative of the Fourth Amendment. We must first consider, therefore, whether such conduct occurred, either on the concourse or in the DEA office at the airport.


    [I]f the respondent was “seized” when the DEA agents approached her on the concourse and asked questions of her, the agents’ conduct in doing so was constitutional only if they reasonably suspected the respondent of wrongdoing. But “[o]bviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

    We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

    On the facts of this case, no “seizure” of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure.

    Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. We also reject the argument that the only inference to be drawn from the fact that the respondent acted in a manner so contrary to her self-interest is that she was compelled to answer the agents’ questions. It may happen that a person makes statements to law enforcement officials that he later regrets, but the issue in such cases is not whether the statement was self-protective, but rather whether it was made voluntarily.


    Although we have concluded that the initial encounter between the DEA agents and the respondent on the concourse at the Detroit Airport did not constitute an unlawful seizure, it is still arguable that the respondent’s Fourth Amendment protections were violated when she went from the concourse to the DEA office. Such a violation might in turn infect the subsequent search of the respondent’s person.

    The question whether the respondent’s consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances and is a matter which the Government has the burden of proving. The respondent herself did not testify at the hearing. The Government’s evidence showed that the respondent was not told that she had to go to the office, but was simply asked if she would accompany the officers. There were neither threats nor any show of force. The respondent had been questioned only briefly, and her ticket and identification were returned to her before she was asked to accompany the officers.

    On the other hand, it is argued that the incident would reasonably have appeared coercive to the respondent, who was 22 years old and had not been graduated from high school. It is additionally suggested that the respondent, a female and [Black], may have felt unusually threatened by the officers, who were white males. While these factors were not irrelevant, neither were they decisive, and the totality of the evidence in this case was plainly adequate to support the District Court’s finding that the respondent voluntarily consented to accompany the officers to the DEA office.


    We conclude that the District Court’s determination that the respondent consented to the search of her person “freely and voluntarily” was sustained by the evidence and that the Court of Appeals was, therefore, in error in setting it aside. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings.

    [In a concurrence joined by Chief Justice Burger and Justice Blackmun, Justice Powell wrote that the Court should not decide whether the agents “seized” Mendenhall because the courts below had not considered it. Further, he argued that if the encounter did constitute a seizure, it was justified because the circumstances provided “reasonable suspicion.”]

    Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice STEVENS join, dissenting.

    The Court today concludes that agents of the Drug Enforcement Administration (DEA) acted lawfully in stopping a traveler changing planes in an airport terminal and escorting her to a DEA office for a strip-search of her person. This result is particularly curious because a majority of the Members of the Court refuse to reject the conclusion that Ms. Mendenhall was “seized,” while a separate majority decline to hold that there were reasonable grounds to justify a seizure. Mr. Justice STEWART concludes that the DEA agents acted lawfully, regardless of whether there were any reasonable grounds for suspecting Ms. Mendenhall of criminal activity, because he finds that Ms. Mendenhall was not “seized” by the DEA agents, even though throughout the proceedings below the Government never questioned the fact that a seizure had occurred necessitating a showing of antecedent reasonable suspicion. Mr. Justice POWELL’s opinion concludes that even though Ms. Mendenhall may have been “seized,” the seizure was lawful because her behavior while changing planes in the airport provided reasonable suspicion that she was engaging in criminal activity. The Court then concludes, based on the absence of evidence that Ms. Mendenhall resisted her detention, that she voluntarily consented to being taken to the DEA office, even though she in fact had no choice in the matter. This conclusion is inconsistent with our recognition that consent cannot be presumed from a showing of acquiescence to authority.

    Whatever doubt there may be concerning whether Ms. Mendenhall’s Fourth Amendment interests were implicated during the initial stages of her confrontation with the DEA agents, she undoubtedly was “seized” within the meaning of the Fourth Amendment when the agents escorted her from the public area of the terminal to the DEA office for questioning and a strip-search of her person. [T]he nature of the intrusion to which Ms. Mendenhall was subjected when she was escorted by DEA agents to their office and detained there for questioning and a strip-search was so great that it “was in important respects indistinguishable from a traditional arrest.” Although Ms. Mendenhall was not told that she was under arrest, she in fact was not free to refuse to go to the DEA office and was not told that she was. Furthermore, once inside the office, Ms. Mendenhall would not have been permitted to leave without submitting to a strip-search.3

    The Court recognizes that the Government has the burden of proving that Ms. Mendenhall consented to accompany the officers, but it nevertheless holds that the “totality of evidence was plainly adequate” to support a finding of consent. On the record before us, the Court’s conclusion can only be based on the notion that consent can be assumed from the absence of proof that a suspect resisted police authority.

    Since the defendant was not present to testify at the suppression hearing, we can only speculate about her state of mind as her encounter with the DEA agents progressed from surveillance, to detention, to questioning, to seclusion in a private office, to the female officer’s command to remove her clothing. Nevertheless, it is unbelievable that this sequence of events involved no invasion of a citizen’s constitutionally protected interest in privacy. The rule of law requires a different conclusion.

    Notes, Comments, and Questions

    The Court in Mendenhall stated that a person is seized if “a reasonable person [in his situation] would have believed that he was not free to leave.” As a result, lawyers and others have recommended that if someone is approached by police and wishes either to avoid or to end the encounter, a useful tactic is to ask, “Am I free to leave?” If the answer is “yes,” then the person may leave without further discussion. If the answer is “no,” then the person should stay—a reasonable person in the situation would not feel free to go. A person told “no” can later challenge the interaction as an unlawful seizure. At a minimum the encounter should be considered a “seizure;” the debate will be about its legality. (An equivalent tactic is to ask, “Am I being detained?” An answer of “no” indicates permission to leave. “Yes” indicates a seizure.)

    Consider the following scenario:

    Police approach a suspect (who had recently parked his car) and ask to speak to him. The suspect agrees. The officer asks for identification, and the suspect produces a driver’s license. Before returning the license, the officer asks for and receives permission to search the suspect’s vehicle. Is that search the product of valid consent given by a suspect who had not been “seized” during the encounter? Or, instead, did the officer detain the suspect by retaining his driver’s license, thereby creating a situation in which a reasonable person would not feel free to leave? See United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991); id. at 680-81 (Clark, J., dissenting on this question).4

    Now imagine a slightly different scenario: Police lawfully stop a car and ask the driver for his license, which is provided. Before returning the license, officers ask for permission to search the car. Is this scenario different from the prior one in any material way? See United States v. Thompson, 712 F.2d 1356, 1360-61 (11th Cir. 1983).

    The next case concerns a young suspect especially interested in avoiding an encounter with police. The question is whether police efforts to stop him qualified as a “seizure.”

    Supreme Court of the United States

    California v. Hodari D.

    Decided April 23, 1991 – 499 U.S. 621

    Justice SCALIA delivered the opinion of the Court.

    Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with “Police” embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths saw the officers’ car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed.

    The officers were suspicious and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine.

    In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed. The California Supreme Court denied the State’s application for review. We granted certiorari.

    As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been “seized” within the meaning of the Fourth Amendment.5 If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted.

    We have long understood that the Fourth Amendment’s protection against “unreasonable … seizures” includes seizure of the person. From the time of the founding to the present, the word “seizure” has meant a “taking possession.” For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. To constitute an arrest, however—the quintessential “seizure of the person” under our Fourth Amendment jurisprudence—the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient.6

    To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Hodari contends (and we accept as true for purposes of this decision) that Pertoso’s pursuit qualified as a “show of authority” calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

    The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced—indirectly, as it were—by suggesting that Pertoso’s uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force or, where that is absent, submission to the assertion of authority.

    We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.

    In sum, assuming that Pertoso’s pursuit in the present case constituted a “show of authority” enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the decision of the California Court of Appeal, and remand for further proceedings not inconsistent with this opinion.

    Justice STEVENS, with whom Justice MARSHALL joins, dissenting.

    The Court’s narrow construction of the word “seizure” represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment. [T]he Court now adopts a definition of “seizure” that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment—as long as he misses his target.

    Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to “freeze,” a warning shot, or the sound of sirens accompanied by a patrol car’s flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer’s show of force and the complete submission by the citizen. At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen’s reaction, rather than by the officer’s conduct. One consequence of this conclusion is that the point at which the interaction between citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but, rather, only after the officer exercises control over the citizen.

    It is too early to know the consequences of the Court’s holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have.

    I respectfully dissent.

    Notes, Comments, and Questions

    Justice Scalia noted in a footnote that “California conceded below” that police did not have reasonable suspicion to seize Hodari and, citing Scripture, stated that the Court would not decide whether a stop would have been lawful. The dissent found the majority’s musings on the question annoying:

    “The Court’s gratuitous quotation from Proverbs 28:1 mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority. See generally Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J. 214 (1983). It has long been ‘a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Alberty v. United States, 162 U.S. 499 (1896).”

    We will reconsider the legal significance of flight from police when reading cases in which the Court confronted the merits.

    The Court in Hodari D. decided that an attempted seizure by police—ordering “stop” at a suspect who ignores the command and runs—is not a “seizure” for purposes of the Fourth Amendment to the Constitution of the United States. The Court did not, however, decide how state law might regulate such police action. In New York, state courts have rejected the reasoning of Hodari D. when interpreting the state constitution. See People v. Martinez, 606 N.E.2d 951 (N.Y. 1992); People v. Hill, 150 A.D.3d 627, 634 & n.4 (N.Y. App. Div. 1st Dep’t 2017) (“In contrast [to New York law], the United States Supreme Court rejected mere police pursuit as constituting a seizure in California v. Hodari D.”). Students need not investigate the idiosyncrasies of New York search and seizure law, much less of all the states. Instead, New York’s rejection of Hodari D. is noted as an example of a larger principle: Under our federal system, states may not offer less protection than the Court declares to be provided by the federal constitution. But states may, if they wish, offer more protection. The Court’s decisions about federal constitutional law thereby provide a floor—not a ceiling—for the protection of individual liberties. Would-be reformers of the law may find greater success in the state courts and state legislatures than in the filing of petitions for certiorari.


    In previous chapters, we have seen that police are often allowed to conduct warrantless arrests as long as they have probable cause to believe the arrestee has committed a crime. The leading Supreme Court case affirming this principle is United States v. Watson, 423 U.S. 411 (1976).

    The Watson Court summarized the facts as follows:

    “The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22. Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested.”

    After his arrest, Watson consented to a search of his car that revealed incriminating evidence. He later moved to suppress the evidence on the ground that his consent was obtained after an unlawful arrest. The Court considered the arrest as follows:

    “Contrary to the Court of Appeals’ view, Watson’s arrest was not invalid because executed without a warrant. Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees ‘performing duties related to the inspection of postal matters’ to ‘make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.’ [T]he inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.”

    “Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so. This was not an isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, and of agents of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Secret Service, and the Customs Service.”

    “[T]here is nothing in the Court’s prior cases indicating that under the Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.”

    “The cases construing the Fourth Amendment [] reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.”

    In a concurrence, Justice Powell noted the “anomaly” created by decisions requiring warrants for searches absent exceptional circumstances—even when police have probable cause—and the decision in Watson allowing warrantless arrests based upon probable cause. He wrote, “Logic therefore would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches.” But he nonetheless joined the majority because of “history and experience.” He explained as follows:

    “The Court’s opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law most felony arrests were made upon personal knowledge and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information secondhand instead of from personal knowledge, even could authorize an arrest by warrant. By the late 18th century it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers.”

    “The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause.”

    Note that Justice Powell’s concurrence in Watson referred to “warrantless felony arrests,” and the majority referred to “the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence.” What about warrantless arrests for misdemeanors not committed in the officer’s presence, about which the officer has probable cause to believe suspects have committed? For example, if a shopkeeper describes a suspect in detail and reports seeing him steal a candy bar, police would likely have probable cause to arrest the suspect for larceny, and in many jurisdictions such minor theft would be a misdemeanor. May the officer arrest the suspect without a warrant? Common law generally did not allow such arrests, but states now have statutes allowing them (some for all misdemeanors, others only for certain misdemeanors). Although the Supreme Court has not decided the question, the answer appears to be that if states wish to, they may authorize their police to conduct such arrests. See, e.g., William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 811–17 (1993); State v. Walker, 138 P.3d 113, 120 (Wash. 2006) (“every federal circuit court that has addressed the issue has found the Fourth Amendment does not require the misdemeanor to occur in the officer’s presence in order for a warrantless arrest to be valid”).

    In the next case, the Court considered an officer who used the authority granted under United States v. Watson—which allows warrantless arrests—in an arguably unreasonable manner. The question was not whether the Justices approved of the challenged police behavior; they did not. Instead, the Court decided whether warrantless arrests for certain minor criminal offenses are “unreasonable” under the Fourth Amendment.

    Supreme Court of the United States

    Gail Atwater v. City of Lago Vista

    Decided April 24, 2001 – 532 U.S. 318

    Justice SOUTER delivered the opinion of the Court.

    The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not.


    In Texas, if a car is equipped with safety belts, a front-seat passenger must wear one, and the driver must secure any small child riding in front. Violation of either provision is “a misdemeanor punishable by a fine not less than $25 or more than $50.” Texas law expressly authorizes “[a]ny peace officer [to] arrest without warrant a person found committing a violation” of these seatbelt laws, although it permits police to issue citations in lieu of arrest.

    In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and “yell[ed]” something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two-hundred times.”

    Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.

    Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were dismissed.


    Atwater and her husband, petitioner Michael Haas, filed suit in a Texas state court against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater’s Fourth Amendment “right to be free from unreasonable seizure” and sought compensatory and punitive damages.

    The City removed the suit to the United States District Court for the Western District of Texas. [T]he District Court ruled the Fourth Amendment claim “meritless” and granted the City’s summary judgment motion. A panel of the United States Court of Appeals for the Fifth Circuit reversed. Sitting en banc, the Court of Appeals vacated the panel’s decision and affirmed the District Court’s summary judgment for the City. We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers’ authority to arrest without warrant for minor criminal offenses. We now affirm.


    Atwater’s specific contention is that “founding-era common-law rules” forbade peace officers to make warrantless misdemeanor arrests except in cases of “breach of the peace,” a category she claims was then understood narrowly as covering only those nonfelony offenses “involving or tending toward violence.” Although her historical argument is by no means insubstantial, it ultimately fails.


    [The Court engaged in a lengthy analysis of English legal history.] Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater’s is the correct, or even necessarily the better, reading of the common-law history.


    An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater’s position.

    What we have here, then, is just the opposite of what we had in Wilson v. Arkansas [514 U.S. 927 (1995) (Chapter 7)]. There, we emphasized that during the founding era a number of States had “enacted statutes specifically embracing” the common-law knock-and-announce rule; here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater’s claims about the Fourth Amendment’s object. We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.

    Nor does Atwater’s argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become “woven … into the fabric” of American law. The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace.

    Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace, as do a host of congressional enactments. The American Law Institute has long endorsed the validity of such legislation, and the consensus, as stated in the current literature, is that statutes “remov[ing] the breach of the peace limitation and thereby permit[ting] arrest without warrant for any misdemeanor committed in the arresting officer’s presence” have “‘never been successfully challenged and stan[d] as the law of the land.’”


    While it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history. Instead, she asks us to mint a new rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention.

    If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation. In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment. Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.

    But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government’s side with an essential interest in readily administrable rules.

    [C]omplications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted.

    One line, she suggests, might be between “jailable” and “fine-only” offenses, between those for which conviction could result in commitment and those for which it could not. The trouble with this distinction, of course, is that an officer on the street might not be able to tell. It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? Is the weight of the marijuana a gram above or a gram below the fine-only line? Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? And so on.

    But Atwater’s refinements would not end there. She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where “necessary for enforcement of the traffic laws or when [an] offense would otherwise continue and pose a danger to others on the road.” The proviso only compounds the difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwater’s counsel said that “it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving.” But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the “offense would … continue” under Atwater’s rule? And why, as a constitutional matter, should we assume that only reckless driving will “pose a danger to others on the road” while speeding will not?

    There is no need for more examples to show that Atwater’s general rule and limiting proviso promise very little in the way of administrability. It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should. But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other. Atwater’s rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur. For all these reasons, Atwater’s various distinctions between permissible and impermissible arrests for minor crimes strike us as “very unsatisfactory line[s]” to require police officers to draw on a moment’s notice.

    Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, “how bad the problem is out there.” The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional attention, and there is cause to think the answer is no. So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate’s review of probable cause within 48 hours, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release. Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. It is, in fact, only natural that States should resort to this sort of legislative regulation, for it is in the interest of the police to limit petty-offense arrests, which carry costs that are simply too great to incur without good reason. Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was “conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests.”

    The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater’s counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one. We are sure that there are others, but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests. That fact caps the reasons for rejecting Atwater’s request for the development of a new and distinct body of constitutional law.

    Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause “applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.” 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. She admits that neither she nor her children were wearing seatbelts. 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.

    Nor was the arrest made in an “extraordinary manner, unusually harmful to [her] privacy or … physical interests.” Atwater’s arrest was surely “humiliating,” as she says in her brief, but it was no more “harmful to … privacy or … physical interests” than the normal custodial arrest. She was handcuffed, placed in a squad car, and taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.

    The Court of Appeals’s en banc judgment is affirmed.

    Justice O’CONNOR, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.

    The Court recognizes that the arrest of Gail Atwater was a “pointless indignity” that served no discernible state interest and yet holds that her arrest was constitutionally permissible. Because the Court’s position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent.

    A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable.

    A custodial arrest exacts an obvious toll on an individual’s liberty and privacy, even when the period of custody is relatively brief. The arrestee is subject to a full search of her person and confiscation of her possessions. If the arrestee is the occupant of a car, the entire passenger compartment of the car, including packages therein, is subject to search as well.7 The arrestee may be detained for up to 48 hours without having a magistrate determine whether there in fact was probable cause for the arrest. Because people arrested for all types of violent and nonviolent offenses may be housed together awaiting such review, this detention period is potentially dangerous. And once the period of custody is over, the fact of the arrest is a permanent part of the public record.

    We have said that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State’s interest in taking a person suspected of committing that offense into custody is surely limited, at best. This is not to say that the State will never have such an interest. A full custodial arrest may on occasion vindicate legitimate state interests, even if the crime is punishable only by fine. Arrest is the surest way to abate criminal conduct. It may also allow the police to verify the offender’s identity and, if the offender poses a flight risk, to ensure her appearance at trial. But when such considerations are not present, a citation or summons may serve the State’s remaining law enforcement interests every bit as effectively as an arrest.

    Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its reasonableness hinges on “the degree to which it is needed for the promotion of legitimate governmental interests.” In light of the availability of citations to promote a State’s interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable. Instead, I would require that 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, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion” of a full custodial arrest.

    The record in this case makes it abundantly clear that Ms. Atwater’s arrest was constitutionally unreasonable. Atwater readily admits—as she did when Officer Turek pulled her over—that she violated Texas’ seatbelt law. While Turek was justified in stopping Atwater, neither law nor reason supports his decision to arrest her instead of simply giving her a citation. The officer’s actions cannot sensibly be viewed as a permissible means of balancing Atwater’s Fourth Amendment interests with the State’s own legitimate interests.

    The Court’s error [] does not merely affect the disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans. A broad range of conduct falls into the category of fine-only misdemeanors.

    To be sure, such laws are valid and wise exercises of the States’ power to protect the public health and welfare. My concern lies not with the decision to enact or enforce these laws, but rather with the manner in which they may be enforced. Under today’s holding, when a police officer has probable cause to believe that a fine-only misdemeanor offense has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Or, if a traffic violation, the officer may stop the car, arrest the driver, search the driver, search the entire passenger compartment of the car including any purse or package inside, and impound the car and inventory all of its contents. Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate.

    Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. 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. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer’s subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers’ poststop actions—which are properly within our reach—comport with the Fourth Amendment’s guarantee of reasonableness.

    The Court neglects the Fourth Amendment’s express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.

    Notes, Comments, and Questions

    The result in Atwater may exemplify a maxim popularized by Justice Antonin Scalia, who once observed during a speech, “A lot of stuff that’s stupid is not unconstitutional.” Justice Scalia added that during a prior speech, he had proposed that all federal judges should receive a stamp with the words “STUPID BUT CONSTITUTIONAL” that could be used on complaints; then someone sent him one. Scalia, like others expressing similar sentiments, was known to argue that if you wish to prohibit stupid (but constitutional) conduct, you should contact your legislature, not federal judges.

    If students encounter examples in this book of disagreeable police (or prosecutorial) conduct that the Court has deemed constitutional, they may wish to ask themselves two questions: (1) Is it plausible that a legislature can solve the problem that the Court has declined to solve, and (2) what specific suggestions might I have for my legislator? Most students are far more likely to become legislators than Supreme Court Justices.

    After deciding in Atwater that the Fourth Amendment allows warrantless arrests even for minor crimes, the Court faced an odd set of facts in Virginia v. Moore. There, the Court considered a warrantless arrest conducted in violation of a state law. The issue was whether violating state law made the arrest “unreasonable” under the Fourth Amendment.

    Supreme Court of the United States

    Virginia v. David Lee Moore

    Decided April 23, 2008 – 553 U.S. 164

    Justice SCALIA delivered the opinion of the Court.

    We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.


    On February 20, 2003, two city of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine. The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and $516 in cash.

    Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination.

    Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds, reinstated by the intermediate court sitting en banc, and finally reversed again by the Virginia Supreme Court. We granted certiorari.


    When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.

    Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. We have applied the same principle in the seizure context. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.”

    Some earlier [decisions] excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution.


    We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation.

    Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them; or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.

    If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures.

    Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.” It nonetheless declined to make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained—that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress.

    Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time.” Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers.

    We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.


    Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. We have described this rule as covering any “lawful arrest” with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson [, 414 U.S. 218 (1973),] used “lawful” as shorthand for compliance with constitutional constraints.

    The Virginia Supreme Court may have concluded that Knowles [v. Iowa, 525 U.S. 113 (1998)] required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest.

    We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

    Justice GINSBURG, concurring in the judgment.

    The Fourth Amendment, today’s decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders. Because I agree that the arrest and search Moore challenges violated Virginia law, but did not violate the Fourth Amendment, I join the Court’s judgment.

    * * *

    In our next chapter, we consider a form of seizure less robust than an arrest—a “stop and frisk.”