SUPREME COURT ROUNDUP: REVIEW SET ON REASONABLENESS OF ARREST FOR SMALL
OFFENSE

WASHINGTON, Dec. 4 -- The lawyer for a Texas mother who was ordered from
her pickup truck by a police officer for not using seat belts, placed in
handcuffs and taken to jail in front of her crying children had the ideal
Supreme Court case today -- perhaps a bit too ideal.

"You've got the perfect case!" Justice Sandra Day O'Connor exclaimed as the
lawyer, Robert C. DeCarli, beamed and replied, "We like to think so."

Justice O'Connor's next comment was perhaps not so welcome. "But what we're
concerned with is the broader rule," she said, proceeding to note that the
court had to take account of potentially "millions of applications across
the country" if it ruled, as Mr. DeCarli was asking it to, that the police
cannot ordinarily subject someone to a full custodial arrest for committing
a minor traffic offense that carries only a fine.

The question of whether the Constitution permits an arrest in such a
situation -- complete with handcuffs, booking and impounding and searching
the truck -- is surprisingly unresolved. Gail Atwater's pickup truck, in
which she was driving her 6-year-old daughter and 4-year-old son home from
soccer practice through the local streets of Lago Vista, Tex., at 15 miles
per hour, contained two tricycles, a bicycle, an Igloo cooler, a bag of
charcoal, toys, food and two pairs of childrens' shoes. No one in the truck
was wearing a seat belt.

The fine in Texas for not wearing a seat belt is $50. Ms. Atwater was
released after an hour in jail, when she posted bond. She pleaded no
contest to the seat belt charge.

Her lawyer argued that to make a custodial arrest, rather than simply write
a ticket, is so inherently unreasonable in the absence of another factor
like breach of the peace or likely flight as to violate the Fourth
Amendment's prohibition against unreasonable searches and seizures.

After the 1997 incident, Ms. Atwater and her husband brought a damage suit
against the city of Lago Vista, its police chief and the officer who
arrested her. The suit was dismissed in Federal District Court in Austin,
Tex.; reinstated by a three-judge panel of the United States Court of
Appeals for the Fifth Circuit, in New Orleans; and then thrown out again by
an 11-to-5 vote of the entire Fifth Circuit.

The appeal to the Supreme Court, Atwater v. City of Lago Vista, No. 99-
1408, argues that at the time the Fourth Amendment was adopted, the general
legal principle was that while the police could make arrests without
warrants for offenses committed in their presence, that authority did not
extend to non-felonies unless they involved breaches of the peace or some
other added factor.

The justices were troubled and intrigued by the case but, as Justice
O'Connor's comment indicated, unsure how to proceed.

"I'll be candid in saying I'm not sure how to assess it," Justice David H.
Souter told Mr. DeCarli.

Justice Souter said it was important to know "how bad the problem is out
there," because many jurisdictions appear to authorize custodial arrests
for minor offenses. "The commonness of the practice leads me to question
how many horrible cases are out there," Justice Souter said. "A case that
is very rare should not be the basis for constitutionalizing a general rule."

Mr. DeCarli replied that "just a few weeks ago, we saw a young girl
arrested for eating French fries," a reference to a highly publicized
incident last month in Washington's subway system. The transit police took
a 12-year-old out of a Metro station in handcuffs for violating a law
against eating on the trains or in stations.

Justice Souter, evidently no student of local news, looked puzzled. "Where
did `we' see this?" he asked. "I didn't see it."

"He immerses himself in the briefs," Justice Antonin Scalia said, to
general laughter in the courtroom.

The justices appeared generally skeptical of Mr. DeCarli's argument. "It's
not a constitutional violation for a police officer to be a jerk," said
Justice Anthony M. Kennedy, who added that Mr. DeCarli's analysis was "too
amorphous."

But the justices also had tough questions for Lago Vista's lawyer, Roger J.
George. Mr. George said the rule should require nothing more complex to
make an arrest than a police officer's being able to say, "I saw the person
do it." Any other rule, he said, would be too complex, requiring the
officer to know details of the law or of the offender's background, since
repeat offenders might face jail time, for example, while first-time
offenders would not.

Justice O'Connor objected, saying that the court's precedents permit police
officers to stop and frisk subjects on the basis of "specific, articulable
reasons." Why could there not be a similar rule limiting custodial arrests
for minor offenses to situations that were somehow out of the ordinary? she
asked. "I don't see that it's that different," she said. "Why couldn't it
work here?"

Justice John Paul Stevens said that under such a rule, if an officer had a
particular concern, like an out-of-state driver's willingness to appear for
a court date, then "bingo, you're protected," and the officer can make the
arrest.

There was also this other development at the court today:

Following its ruling last week that narcotics checkpoints are
unconstitutional, the court disposed of several related cases, denying
review in all of them.

Two were appeals, by New York City and New York State, of a 1999 ruling by
the New York State Court of Appeals that checkpoints established by the
livery task force of the New York City police to protect taxi drivers
against robberies were unconstitutional.

Under the program, adopted in 1993, police officers in unmarked cars would
patrol high-crime neighborhoods, stopping taxis that carried passengers to
question the driver about his safety and observe the passenger's reaction
to the encounter.

The program was challenged by two defendants, Keith Boswell and a teenager
identified only as Muhammad F., both of whom were found with illegal drugs
as a result of the stops. The Court of Appeals, New York's highest court,
found that the patrols violated the Fourth Amendment by being too intrusive
and giving the police too much discretion.

The justices today denied both cases, New York State v. Boswell, No.
99-1440, and Corporation Counsel v. Muhammad F., No. 99-1443, without comment.

The court also turned down a similar case from Boston, in which the United
States Court of Appeals for the First Circuit upheld the Police
Department's program called Tips (Taxi Inspection Program for Safety).
Under Tips, taxi owners who voluntarily agreed to participate would carry a
decal advising passengers that "this vehicle may be stopped and visually
inspected by the Boston police at any time to ensure driver's safety."

In a final case in this group, the court turned down an appeal by a man who
was found with illegal drugs by federal border patrol agents who boarded a
bus in South Texas under a cooperative program between the federal
government and local bus companies. Agents board buses of companies that
agree to participate and check for the presence of undocumented aliens.

One passenger, Arturo Hernandez- Zuniga, proclaimed that he was an American
citizen. As he did so, an agent saw a bag under his seat. Receiving consent
to search, the agent found several pounds of cocaine. Mr. Hernandez-Zuniga,
whose six-year prison sentence was upheld by the Fifth Circuit, challenged
the search under the Fourth Amendment. The case was Hernandez-Zuniga v.
U.S., No. 00-5362.